R. v. Nicholson

2016 BCSC 1265 R. v. Nicholson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nicholson, 2016 BCSC 1265 Date: 20160513 Docket: 26396 Registry: Vancouver Regina v. Christopher Michael Makoto Nicholson Before: The Honourable Madam Justice B.J. Brown

SEALED UNTIL FURTHER ORDER OF THE COURT Reasons for Judgment (Challenge to Production Order #1 ("PO1") issued September 14, 2012) Counsel for Crown: P. Hogg Counsel for Christopher Nicholson: B. Martland Place and Date of Hearing: Vancouver, B.C. May 9 and 10, 2016 Place and Date of Judgment: Vancouver, B.C. May 13, 2016 Introduction [1] Mr. Nicholson is charged with ten counts, including allegations of obstruction of justice and breach of trust. The allegations arise from 2012-2013 when Mr. Nicholson was serving as a constable in the Abbotsford Police Department ("APD"). The investigation was conducted by the Vancouver Police Department ["VPD"]. Mr. Nicholson was charged on May 6, 2013. [2] The VPD investigation included many judicial authorizations. There are approximately 17 production orders, four dialed number recorder orders, six search warrants, six tracking warrants, six general warrants and two Part 6 wiretap authorizations. [3] This application deals with a production order issued September 14, 2012, by Judicial Justice A. Campbell and referred to as PO1. [4] PO1 is one of three separate production orders obtained by VPD on September 14, 2012, from Judicial Justice A. Campbell. The other orders included an order served on ICBC for documents regarding Mr. Nicholson and an order served on Bell Mobility for subscriber information, billing records and credit information

for a cell phone police believed to be used by the named individual. The other two production orders are not at issue in this application. [5] The production order at issue in this application, PO1, directs TELUS to produce: (1) Certified copies of the subscriber information for mobile telephone numbers 604-835-1288 ("1288"), 604-226-8999 ("8999") and 604-309-4343 ("4343") (1288 and 8999 were cell phones the APD issued to Mr. Nicholson. 4343 was his personal cell phone); (2) Certified copies of billing records for Nicholson's numbers including incoming and outgoing calls, call detail records and cell site location; (3) Credit information and contact information for Nicholson's three numbers; (4) Any other mobile numbers associated to the same billing accounts as the 4343 personal number; and (5) Certified copies of text messages sent and received on Nicholson's three numbers. [6] Mr. Nicholson seeks a declaration that his s. 8 Charter rights have been violated by the improper issuance of PO1. [7] Mr. Nicholson brings the application on two bases: (1) That the production order itself is facially invalid because it does not cite a proper evidentiary basis for its issuance and refers to an information to obtain ("ITO") that does not exist. The production order in issue is addressed to Detective Constable Brody Haupt and states "whereas it appears on the oath of Detective Constable

Mike Wheeler". It is common ground that there was no affidavit from Detective Constable Mike Wheeler. (2) When the unconstitutional aspects of the ITO (based on my ruling of December 18, 2015) in support of PO1 are excised, what remains is inadequate to support the issuance of PO1. Alternatively, Mr. Nicholson argues that despite two recent decisions of our Court of Appeal, R. v. Belcourt, 2015 BCCA 126, and R. v. Webster, 2015 BCCA 286, a s. 487.012 production order should not be used to retroactively collect private communications; this should be done only through a wiretap authorization pursuant to Part 6 of the Criminal Code. [8] Mr. Nicholson seeks a ruling that the order was improperly issued and that his s. 8 rights were violated as a result. He seeks only declarations at this stage and does not address the results of PO1 for other authorizations or the exclusion of the evidence from trial under s. 24(2) of the Charter. The Issuance of the Production Order [9] The principles that apply to a reviewing judge reviewing whether an ITO contains sufficient reliable information to support a production order are set out in a number of cases. The leading case, R. v. Garofoli, [1990] 2 S.C.R. 1421, sets out the proper approach at 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing

judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [10] In R. v. Araujo, 2000 SCC 65, 2 S.C.R. 992, the court says: [51] In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. [11] In R. v. M.(N.) (2008), 223 C.C.C. (3d) 417, 159 C.R.R. (2d) 50 (Ont. S.C.J.), Mr. Justice Hill says: [316] The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line by line word by word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No.

168); R. v. Chan, [1998] O.J. No. 4536 (C.A.) at para. 4; R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (C.A.) at para. 15-18; R. v. Sisimonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 at 79. [12] The fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored. The test is not whether there might be an innocent explanation for an observation but whether the presence of such facts enhances or makes more likely the possibility of the crime (R. v. Lao, 2013 ONCA 285 at para. 59). [13] The issuing judge may draw reasonable inferences from the material and make reasonable deductions which flow logically from the material as set out in the affidavit or information to obtain (R. v. Charlton, [1992] 15 B.C.A.C. 272; R. v. Nero, 2016 ONCA 160 at para. 71). [14] It is not appropriate to conduct a microscopic analysis of the affidavit. Rather, the reviewing judge must examine the totality of the circumstances. If the reviewing judge concludes that there is no basis on the material before the authorizing judge upon which he or she could be satisfied that the preconditions for the granting of the authorization exist, then the trial judge is required to find that the search or seizure contravened s. 8 of the Charter. If, based on the record

which is before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere (R. v. Nguyen, 2007 BCCA 264). [15] The test to be applied by a reviewing court in determining whether information provided by a confidential informant is sufficient to justify the issuance of a production order was set out in R. v. Garofoli where the court said: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (a) the degree of detail of the "tip"; (b) the informer's source of knowledge; (c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [16] It is not necessary for investigators to corroborate each exquisite detail of the information provided. The ITO, however, should describe what has been done to confirm the credibility of the source and the reliability of his or her information so that the issuing and reviewing justice can properly assess it (R. v. Nero, 2016 ONCA 160 at para. 76; R. v. Debot, [1989] 2 S.C.R. 1140 at paras. 53, 63). [17] Excision of improperly obtained information from the ITO is discussed in R. v. Grant, [1993] 3 S.C.R.

223. The court said: 50. in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant... In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event. Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information. [18] Regarding the production order at hand, the relevant portions of the former s. 487.012 read as follows: Production order (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a), (a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or (b) to prepare a document based on documents or data already in existence and produce it. Production to peace officer (2) The order shall require the documents or data to be produced within the time, at the place and in

the form specified and given (a) to a peace officer named in the order; or (b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament. Conditions for issuance of order (3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (b) the documents or data will afford evidence respecting the commission of the offence; and (c) the person who is subject to the order has possession or control of the documents or data. Terms and conditions (4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client. Is PO1's Reference to "Mike Wheeler" Fatal to the Order? [19] Turning to the first basis for the challenge, Mr. Nicholson argues that the reference in PO1 to the evidence on oath of Detective Constable Mike Wheeler is a fatal flaw. He says the production

order is not connected to any evidence and there is no basis to conclude that there was sworn evidence before the issuing judge when PO1 was issued. He argues that the authorization is invalid on its face and relies on a nonexistent affidavit. He says that where an order is employed in a criminal investigation to gather information of a private and personal nature there are minimum requirements that must be met to pass constitutional muster. These include the requirement articulated in Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641, 41 C.R. (3d) 97, that legislation giving rise to searches and seizures must require prior judicial authorization based on evidence given on oath. He says that assuming the reference to Detective Constable Wheeler to be a drafting mistake, the drafting mistake is so fundamental that it cannot be ignored. He says that the error demonstrates a disturbing sloppiness and a cavalier approach to the privacy interests of the citizen. [20] The Crown submits that the reference to Detective Constable Wheeler is clearly a typographical error based on the record that was before the judicial justice. There is only one affidavit in the record and that is the affidavit of Detective Constable Haupt. That affidavit refers to three production orders all of which were granted by the same judicial justice. The record was sealed. Crown argues that there is no

requirement that the judicial justice include a reference to the sworn information in the production order itself. The order itself is evidence that she was satisfied on the information provided to her, as she has signed it. The Crown says that the formal requirements of s. 487.012 are met. We have a record of what was before the judicial justice. [21] I agree with the submissions of the Crown. Section 487.012 required: "that a justice or judge be satisfied on the basis of an ex parte application containing information on oath in writing ". It did not require that the order make reference to the information on oath in writing. The record before the judicial justice was sealed. I have been provided with that record. From the record, it is apparent that the reference to Detective Constable Mike Wheeler is an error. In the ITO, Detective Constable Brody Haupt refers to the three production orders that he is seeking as well as a sealing order. He refers specifically to the order that is at issue before me. Accordingly, having the record that was before the judicial justice and having reviewed those materials, it is apparent to me that the application containing information on oath in writing was that of Detective Constable Brody Haupt, not that of Detective Constable Mike Wheeler. [22] To my mind the reference to the oath of Detective Constable Mike Wheeler is not fatal. The issue

for me is whether there was an ex parte application containing information on oath in writing before the justice. I am satisfied that I can identify what was before the judicial justice and that this includes an oath in writing. Do Sufficient Grounds Remain to Permit the Order to be Issued? [23] Turning now to the second ground of challenge, the central issue on this aspect of the challenge is whether, after excising improperly obtained information, sufficient remains to permit the order to be issued. This arises from my decision of December 18, 2015 (2015 BCSC 2402). On that application, Mr. Nicholson argued that when APD reviewed the billing records for the cell phones that APD issued to him and provided a detailed report to VPD, his s. 8 rights were breached. I concluded in part: [22] Mr. Nicholson's s. 8 Charter rights were breached when the APD, at the behest of VPD, produced a detailed report of the contents of the phone records. In these circumstances, the VPD was required to obtain a warrant to obtain that information. [24] Again, the issue for me to determine is whether on the record the judicial justice could issue the order. [25] Mr. Nicholson argues that as a result of that decision, the portions of the ITO which include reference to the report made by APD Inspector Schmirler to the VPD must be excised. Mr. Nicholson says once the unlawfully obtained evidence within

the ITO is excised, little remains and there is no basis to issue the production order. [26] The Crown argues that even after improperly obtained material has been excised, there is sufficient remaining in the ITO to support issuance of the production order. [27] My decision of December 15, 2015, was made on the basis of an agreed statement of facts. I did not have the Schmirler report. There was no decision as to what portions of the Schmirler report were in breach of Mr. Nicholson's s. 8 rights and which were not. In my decision of December 18, 2015, I said: [13] On the limited evidence before me, I conclude that Mr. Nicholson's s. 8 Charter rights were breached. [28] It was my understanding that the detailed report provided by Inspector Schmirler was effectively a regurgitation of the contents of the billing records of APD for the cell phones in question. I also concluded that Mr. Nicholson had a privacy interest in those billing records. Nonetheless, following the Supreme Court of Canada decision in Cole, I said: [21] Similarly here, the APD on being notified of a potential crime was entitled to review their own records. While alive to the possibility that it may become a criminal investigation, their actions at that time were administrative and related to his employment. They were also entitled to notify the VPD that they had found evidence of criminal activity or

potential criminal activity in those records. As the Supreme Court of Canada said in Cole at para. 73: The school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for the contraband. But receipt of the computer from the school board did not afford the police warrantless access to the personal information contained within it. [29] In Cole, the accused was charged with possession of child pornography and unauthorized use of a computer system. The school's computer technician discovered pictures when examining the accused's laptop to conduct a virus scan. The technician reported this to the principal who demanded the accused's laptop and had the hard drive examined and turned over to police. The police did not seek a warrant for the laptop, believing that they had the school board's consent to the seizure. The laptop in question belonged to the school board. However, the school's policy manual permitted personal use of the teacher's laptop. On that basis the Supreme Court of Canada concluded that the accused had a reasonable expectation of privacy in his work computer but said: [73] The school board was, of course, legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the

police to obtain a warrant to search the computer for the contraband. [30] Here, by analogy, the APD were permitted to inform the VPD of their discovery from their own records and that they showed calls were placed from the cell phone the APD issued to Constable Nicholson to the cell phone identified as belonging to the named individual on at least the day at issue, that it is June 27, 2012, at 10:47 a.m. and 4:14 p.m. That is the equivalent of notifying police of the discovery of contraband (child pornography) on the laptop of the accused in Cole. [31] On that basis, paras. 19.17.1 through 19.17.6 and 19.17.8 would be excised as these call details exceed the limited disclosure appropriate to notify police of the criminal activity which APD believed they had discovered and were reporting to VPD. Paragraph 19.17.9 would also be excised, where Detective Constable Haupt sets out his belief as to what was transpiring based on reference to the other telephone records. [32] Paragraphs 19.18.1 through 19.18.4 also exceed the limited disclosure of the contents of the billing records for the cell phones issued by APD to Constable Nicholson and would be excised. [33] Paragraph 19.18.5 would not be excised as this does not arise from any of Constable Nicholson's APD issued cell phone billing records. [34] If these paragraphs were excised, the remaining contents are sufficient to support

the production order. [35] The information received from Informant A was to the following effect: a police officer named Chris tipped off "[ ]". Chris is half Japanese. Chris is 37 or 38 years old. Chris does not wear a uniform. Chris first alerted [ ] that a warrant may be done about a month before it was. Chris contacted [ ] on the day of the warrant to advise that it is taking place. [ ] cleaned out his house and his mother's house before the police arrived. Chris had alerted [ ] in the past to change vehicles and avoid certain drop points. Chris would meet [ ] driving a dark coloured car with tinted windows. Chris would call and text [ ]'s phone. [ ]'s phone number is XXX-XXX-XXXX. [36] With the additional information gathered by the APD, there was substantial support for the tip received from Informant A and there was information to support the identification of Constable Nicholson as "Chris" and the named individual as "[ ]". The reliability of the tip is assessed on the totality of the circumstances. Even though there was no indicia of reliability from past performance of the informant, the information he provided was detailed and much tallied to information from other sources. [37] The tip provided by Informant A contained detailed and unusual information. It was not simply that a police officer had warned a target that there would be a search of the targets' residence.

Rather, Informant A provided that an officer informed [ ] that a search was to be done of [ ]'s house and his mother's house. The APD provided the cell phone number the named individual had given them, the same number that the informant provided for [ ]. Again, this is detail which narrows the circumstances from the general to the specific. Abbotsford police were able to verify that the named individual was known as "[ ]", that they had an investigation of the named individual, that they obtained search warrants for the named individual's residence at Abbotsford, BC, and his mother's residence at Abbotsford, BC, and that at the time the search warrants were executed, police did not find any evidence of drugs. This also supports the inference that the police officer in question was from Abbotsford, as a non-APD officer would be less likely to know of a planned APD search. [38] The information provided by Informant A, with the supporting information, provided reasonable grounds to believe that an offence had been committed. [39] With respect to the officer in question, much of Informant A's information was corroborated by the additional information obtained by Detective Constable Haupt. Informant A said not simply that a police officer tipped off the target but that the officer's name was Chris, that he was half Japanese, that he was 37 or 38 years old and that he did not wear a

uniform. Abbotsford police advised the VPD that they had an officer named Chris Nicholson. Detective Constable Haupt was able to obtain information from which it could be inferred that Constable Nicholson was half Japanese, having the middle name of Makoto and having a mother's maiden name of Hamaguchi. Constable Nicholson was 39 years old. Regarding the informer's statement that Chris did not wear a uniform, APD advised Detective Constable Haupt that until sometime in May 2012 Constable Nicholson had been a member of the drug enforcement unit, which would permit an inference that Nicholson would not have been wearing a uniform. Finally, the informant said that Chris would call and text [ ]'s phone; APD was able to provide the cell phone numbers for the cell phones which they had issued to Constable Nicholson and APD billing records indicated that Constable Nicholson had contacted the number associated with the named individual on the day of the search. [40] On the basis of these details and the information that Detective Constable Haupt was able to obtain, it is a reasonable inference that the police officer communicating with the named individual was Constable Chris Nicholson and support the conclusion that his records would afford evidence respecting the commission of the offence. [41] Even without any reference to the detailed call records provided by Inspector Schmirler's

report, in my view there was sufficient information before the judicial justice on which the order could have issued. The information provided by A was detailed and corroborated in many significant respects. "Chris" could be identified as Chris Nicholson. Without reference to Mr. Nicholson's call records, there was sufficient material to support the order. Could the Records Be Obtained Pursuant to a Production Order? [42] Turning now to the alternative argument advanced by Mr. Nicholson that the record should not have been produced pursuant to a production order, but required a wiretap authorization granted under Part VI of the Code, Mr. Nicholson argues that I should prefer the authority of R. v. Croft, 2013 ABQB 640. In that decision, Mr. Justice Burrows concluded that the analysis of Madam Justice Abella in R v. TELUS Communications Co., 2013 SCC 16, 2 S.C.R. 3 ("TELUS Communications"), requires that the police gathering text messages previously recorded by TELUS constitutes an interception and must be brought within the requirements of Part VI. [43] However, this is contrary to two recent decisions of our Court of Appeal, Belcourt and Webster, which did not follow the reasoning in Croft. [44] In Webster the court said: [54] In my view, these comments reinforce the conclusion that using a general warrant as authority to intercept ongoing communications is not appropriate.

They expressly do not relate to "the production of historical messages, or to the operation and validity of the production order provision with respect to private communications" ... [61] Substantively, the appellant contends that this Court's decision in Belcourt is not a "fair interpretation" of TELUS Communications and that this Court "erred by limiting the scope of Part VI of the Criminal Code to prospective investigative techniques". I do not agree. As is apparent from my analysis above, I reach the same conclusion as determined by this Court in Belcourt. [62] The trial judge in the present case observed that "all the messages being sought had already been sent, received, and recorded". The police were seeking recorded information. "Production orders deal with exactly that: production of recorded information". [45] The British Columbia Court of Appeal has concluded that a production order is appropriate to deal with production of recorded information, including text messages. TELUS Communications does not address this issue. Accordingly, I will not accede to the argument Mr. Nicholson makes. [46] Finally, I have concluded that the ITO supports "reasonable grounds to believe" that an offence had been committed as Detective Constable Haupt deposed at para. 45 of the ITO. Accordingly, I will not address the constitutional argument raised by Mr. Nicholson at this point in time of the lesser standard included in s. 487.012, that is, reasonable grounds to suspect that an offence has been committed. [47] In conclusion, I am not persuaded that the production order was invalid, and that the materials obtained pursuant to the order were obtained in breach of Mr. Nicholson's Charter rights. "B.J. Brown J."