R. v. Salehi

2019 BCSC 125 R. v. Salehi

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Salehi, 2019 BCSC 125 Date: 20190125 Docket: X080207 Registry: New Westminster Regina v. Maurio Salehi Corrected Judgment: The face page of the judgment was corrected on February 1, 2019. Before: The Honourable Madam Justice Devlin Oral Reasons for Judgment re: Voir Dire #2 - Challenge to Facial Validity of Warrant to Search Cell Phone Counsel for the Crown: L.J. Kenworthy and K.S. Fast Counsel for the Accused: A. Vo Appearing as Amicus Curiae: C. Elden Place and Date of Hearing: New Westminster, B.C. January 23, 2019 Place and Date of Judgment: New Westminster, B.C. January 25, 2019 [1] THE COURT: This decision was delivered in the form of Oral Reasons. The Reasons have since been edited for publication. I. Introduction [2] The accused, Maurio Salehi, is charged with two counts of first degree murder relating to the deaths of Iryna Gabalis and Dmitri Faktorovski between July 14 and 16, 2015 in Coquitlam, BC. [3] Mr. Salehi asserts a breach of s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 ("Charter") in connection with the police search of his cell phone. He takes the position that the search warrant issued for his residence which listed his cell phone was facially invalid as it did not provide the necessary

pre-authorization to actually search the contents of his cell phone. As a result, the subsequent warrantless search is an unreasonable search and in breach of his s. 8 Charter rights. If the breach is established, I understand Mr. Salehi, may apply to have the evidence excluded pursuant to s. 24(2) of the Charter. [4] I granted Mr. Salehi's application for a voir dire with respect to the facial invalidity issue. The central issue on this voir dire is whether the warrant issued complies with the pre-authorization requirement for the search of computers set out in R. v. Vu, 2013 SCC 60 [Vu]. In support of his application, Mr. Salehi relies on two recent decisions of this Court - R. v. Wong, 2017 BCSC 1171 [Wong] and R. v. Law, 2017 BCSC 1862 [Law]. [5] Crown counsel takes the position that the warrant does provide specific pre-authorization to search the mobile phone in compliance with Vu's requirements, and hence there is no breach of Mr. Salehi's s. 8 Charter rights. They also take the positon that this Court need not be bound by the decisions in Wong or Law as the principles in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) [Re Hansard Spruce Mills] do not apply to these circumstances. II. Evidence on the Voir Dire [6] The warrant and supporting Information to Obtain ("ITO") were collectively marked as Exhibit 1 on the voir dire. The warrant is attached as

Appendix "A" to this ruling. The warrant was authorized under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, by Judicial Justice of the Peace Hodge on July 18, 2015. The warrant authorized the police to enter the residence at 8091 Minler Road, Richmond BC, on July 18, 2015, and to search for things which included "vii. Maurio Salehi's cell phone". Among the list of things to be searched was also "viii. Computer(s) and electronic devices capable of accessing the internet". [7] The warrant was granted based on the 27 page ITO sworn by RCMP Cst. Campbell. At paragraph 66(g) of the ITO, Cst. Campbell states the basis for his belief that the Salehi cell phone and "the subsequent information located in the device could be used by investigators to ". On this application the sufficiency of the ITO is not challenged although it may be challenged on a subsequent application. [8] The sole issue to be determined on this voir dire is whether the warrant authorizing the search for "things" which includes Maurio Salehi's cell phone permits the police to not only seize the cell phone but actually search its contents? III. The Legal Principles regarding Prior Authorization to Search Cell Phones [9] In the context of searches within a place conducted pursuant to a search warrant, there is no dispute that the Supreme Court of Canada in Vu clarified that computer searches, which include mobile

phones (at para. 38), require express pre-authorization to search the data. [10] The Court concluded that unlike the general principle where authorization to search a place includes the authorization to search places and receptacles located in it, computers are distinct since they are "not like other receptacles" such that a warrant authorizing the search of a location does not also authorize the search of a computer found at that location (at para. 39). [11] Computers and cell phones store "immense amounts of information" which in some cases can touch on the "'biographical core of personal information'" (at para. 41). The search of these gives rise to distinctive privacy concerns. [12] Accordingly, the search of a computer or cell phone is only permitted if the police satisfy the authorizing justice that there are reasonable grounds to believe that any computers will contain the things the police are looking for: at para. 48. [13] Specific prior authorization to search such things can only be carried out where the justice has considered the distinctive privacy issues that searches of computers and cell phones raise, and specifically authorizes such a search in the warrant. [14] As summarized at para. 64: While the scope of these reasons is restricted to warranted searches of a place, they apply equally to all computers found within a place with respect to which a search

warrant has been issued. Put differently, any time that police intend to search the data stored on a computer found within a place for which a search has been authorized, they require specific authorization to do so. [Emphasis Added.] [15] Although the search of computers must be specially authorized by a warrant, a search protocol limiting the way in which police conduct their searches is not a constitutional requirement in the pre-authorization process: Vu at paras. 53-59. [16] I wish to be perfectly clear at this juncture that I would find the first principles in Vu dispositive of the issue here; however, since counsel referred to a number of cases to support their respective positions on how the principles in Vu should be applied and also on the approach set out in Re Hansard Spruce Mills, I will discuss their positions and the relevant case authorities below in brief. IV. Analysis [17] I turn first to the defence's position and the decisions of Wong and Law upon which they rely. Mr. Salehi takes the position that the warrant in this case suffers from the same deficiencies as identified in Wong and Law. In both those cases, it was found that the warrant did not contain specific pre-authorization to search the contents of the computer. Although Mr. Salehi does not specifically refer to Re Hansard Spruce Mills he argues the principle of judicial comity applies and therefore I

should follow Wong and Law. [18] The Crown takes the position that Wong and Law are wrongly decided and that Vu and R. v. Ballendine, 2011 BCCA 221 [Ballendine] are the binding authority on the issue before me. [19] I now turn to the facts in Wong and Law. [20] In Wong, the accused was charged with various offences in connection with the discovery of a methamphetamine lab and a loaded firearm. Members of the Vancouver Police Department ("VPD") searched the accused's premises pursuant to a search warrant issued under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. In searching the premises, the police seized and searched computers and other electronic devices. The search warrant stated that the police were "to search for the above-mentioned things and bring them before [the Judicial Justice] or some other justice, or submit a report of anything seized" (at para. 30). The "above-mentioned things" included "(c) mobile phones; (g) computers and other electronic devices capable of storing spreadsheets, score sheets, accounting and recipes " (at para. 30). The Court held that the reference to "documentation" which may be found in the computers was similar to the language considered in Vu as insufficient to constitute the necessary specific pre-authorization for such a search of electronic devices. In finding that the search warrant did not authorize the search of

the electronic data in the seized devices, the Court in Wong made it clear that specific pre-authorization safeguards against an "impermissibly vague" description of things to be searched; it controls the manner in which the search warrant is to be executed; and gives proper guidance to the police to allow those affected by the warrant's execution to ascertain whether the police have kept within the proper limits (at para. 34). [21] In Law, the search warrant was issued several months before Vu in connection with evidence regarding the accused's alleged commission of several sexual related offences. The police searched the accused's apartment and seized a variety of items including seven cell phones, three laptops, hard drives, SD cards, cameras, CDs and several rolls of film. In addition to searching his apartment pursuant to the warrant, the police arrested the accused in the lobby of his apartment building and seized his cell phone. The wording of the search warrant authorized the recovery of several exhibits, including "[m]edia storage devices that are capable of storing photos and videos " (at para. 9). In finding that this language may have been a "close case", in the circumstances, the Court held that the warrant failed to specifically authorize the police to search the contents of the seized electronic devices. Additionally, the Court declined to draw an inference that

there was such specific prior authorization. Furthermore, the search warrant did not authorize the seizure and search of the contents of the accused's phone: at para. 24. [22] Both parties differed in their positions with respect to the application of Re Hansard Spruce Mills; accordingly, I will consider the appropriate approach as set out in the case. [23] Re Hansard Spruce Mills sets out an internal rule of practice for the British Columbia Supreme Court respecting matters of stare decisis. It provides guidelines by which trial judges of the Supreme Court should treat judgments of their fellow judges. [24] The "proper discretionary duty of a trial judge" is limited to only "certain limited circumstances" in departing from the decisions of another trial court judge of the same court. The narrow scope of such exception is concerned with unsettling the law, and safeguarding against presenting litigants with "conflicting opinions" that emanate from the same Court, the decisions of which command equal legal weight: R. v. Sipes, 2009 BCSC 285 [Sipes] at para. 8, citing to Re Hansard Spruce Mills. [25] Those limited circumstances that may justify a departure from the ruling of a fellow trial judge include any subsequent decisions that affect the validity of the impugned judgment; where it is demonstrated that some binding authority in case law or statute was not considered in that

subsequent decision; or where the judgment was an unconsidered, nisi prius judgment that was rendered amidst the exigencies of a trial "without opportunity to fully consult authority": Sipes at para. 8. [26] Importantly, Re Hansard Spruce Mills' approach to judicial comity is not a rule of law but rather "a wise and prudent prescription for the exercise of judicial discretion" (Sipes at para. 10). Nowhere does that prudent prescription advocate blind adherence to another judge's decision; instead, "judges should always be mindful of the interests of justice and ensure that applying Re Hansard Spruce Mills will advance those interests in particular circumstances" (at para. 14). (i) Considering the factors in Re Hansard Spruce Mills is there a basis to distinguish the findings in Wong and Law? [27] Mr. Salehi argues that there is no basis to distinguish the findings in Wong and Law from his case. He points out there have neither been decisions that have affected the validity of the judgments nor were these decisions made without a consideration of the binding authority. Both were well-considered and included a thorough consideration of the relevant authorities. [28] The Crown argues that it is open for this Court to depart from the findings in Wong and Law because neither decision appears to have considered the decision in Ballendine, which they say is binding on this Court. [29]

In Ballendine, the police had a warrant to search a home and its contents including computers for child pornography. The issue was whether it was implicit that the police could also subject computer hard drives to forensic examination or whether a second warrant was necessary to achieve this object. The Court held that a second warrant was not needed. In Ballendine, the Court found that seizure of a computer was akin to the seizure of large volumes of documents located inside a filing cabinet or located in a premise. I note that Ballendine's "filing cabinet" analogy was specifically rejected by Vu since "the privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets" (at para. 24). [30] In support of their position that Ballendine is binding the Crown referred to the decision of R. v. Dadmand, 2016 BCSC 764 [Dadmand], which dealt with the sub-facial validity of the search warrant for Mr. Dadmand's residence and computers. Since the facial validity of the warrant was not considered in Dadmand, I find its reliance on Ballendine does not assist the Crown in dealing with the facial validity of the warrant in this case. [31] In addition to Ballendine and Dadmand, the Crown relied on a number of other authorities to support their position that Wong and Law are not good law. While I have

reviewed all of their cases, I will only discuss the Ontario Court of Appeal decision in R. v. Nero, 2016 ONCA 160, leave to appeal ref'd [2016] SCCA No. 184 [Nero] and the trial decision of R. v. John, [2016] O.J. No. 7287 (S.C.J.), aff'd in 2018 ONCA 702 [John], both of which were decided after Vu. [32] In Nero, the warrant specifically authorized police to search electronic devices found at the residence. The warrant authorized a search for "any and all information and/or data, stored in the form of magnetic or electronic coding" which specifically included devices like a Blackberry. I find the circumstances in Nero are easily distinguished from those before me because in Nero the warrant explicitly provided authorization to search for data stored on the device. [33] Similarly in John, the Court found that a search warrant authorized the police to both seize computers and conduct a forensic examination of them. The information provided in the ITO set out in considerable detail that the police intended to seize and then examine items which were listed in Appendix A to the ITO. More importantly for this case, was the finding made with respect to the contents of the warrant itself. At para. 48 of the trial decision Woollcombe J. states: The search warrant itself also makes clear, through Appendix "A" that the police are authorized to subject any computer seized to a forensic

examination in order to determine whether the computer contains child pornography or related information. [34] I note that in John, the Court rejected the argument that once the police located the computer, they were required, in compliance with Vu, to go back to the justice and seek an authorization to conduct a search of the computer. [35] In my view the circumstances in Nero and John are easily distinguishable from those in Wong, Law and from the case before me. In those Ontario decisions, the Court of Appeal was satisfied on a review of the face of the warrant itself that it contained the pre-authorization contemplated for in Vu. Just as in the review of the warrants in Wong and Law, I am not so satisfied that the warrant here complied with Vu's specific prior authorization requirements. [36] Further, I see no merit in the Crown's submission that the decisions in Wong and Law are flawed because they did not consider the decision in Ballendine, which was decided before the release of Vu. In the absence of any legal authority indicating that Vu does not supersede the discussion in Ballendine, I find that Wong and Law appropriately considered the principles established in Vu. Having regard to the circumstances of this case before me and the interests of justice to which Sipes alludes, I find there is no basis for me to depart from the Vu legal principles affirmed by and

adopted in Wong and Law. Instead, those decisions are an iteration of the straightforward and unexceptional progress of stare decisis. As I previously mentioned, without the guidance of either of these decisions, I would find the strength of Vu alone sufficient to conclude my ruling. (ii) Can I rely on the ITO to determine facial validity of the warrant? [37] The Crown also argued that Madam Justice Duncan's finding in Law was flawed because it would have been clear to the issuing justice by reading the ITO that the police were interested in the phone as a receptacle. In Law, the Crown had argued that looking at the contents of the ITO and the warrant it could be "inferred the judicial justice issued the warrant to both seize the computers and to search their contents". In my view, Justice Duncan was correct in refusing to uphold the warrant based on an inference to be drawn from the ITO. Justice Duncan stated "where the warrant does not specifically authorize the police to search the contents of electronic devices, I am not prepared to draw an inference that it did, no matter how much that inference accords with common sense" (para 12). [38] A similar argument was made in the case at bar. The Crown referred to the contents of the ITO to demonstrate that it was clear that the police sought to search the information on the phone, not just the phone. From my review of the ITO it

appeared clear that the police sought authorization to search the data contained in Mr. Salehi's cell phone. However, that is not what was stated on the face of the warrant itself. I agree with the rationale of Justice Duncan in Law that a warrant cannot be saved by reference to the contents of the ITO. It must be remembered that it is the warrant that authorizes the search of the subject items, not the ITO. [39] I find support for this proposition in R. v. Ting, 2016 ONCA 57 [Ting]. In Ting, a warrant to search a residence was held facially invalid because it failed to describe the precise location to be searched. The Court reminds us that a function of a warrant is to guide and limit the actions of the police officers, therefore reliance on the ITO cannot address the facial invalidity of the warrant. At para. 59 the Court explains: It is not enough for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it - including police officers who are executing it and third parties whose cooperation is sought - must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 47 C.C.C. (3d) 385

(Y.C.A.), at 396-97. [See also John, para 26; R. v. Ricciardi, 2017 OJ No. 2282, R. v. Townsend, [2017] O.J. No.3321]. [40] In Vu, the Court concluded that because the privacy interests in computer searches are different from searches of other receptacles, specific prior authorization is required for computer searches. While I accept that the investigators sought to search the contents of Mr. Salehi's cell phone the wording of the warrant issued on July 18, 2015 did not provide the pre-authorization that is mandated in Vu. [41] Finally, I see no merit in the Crown's suggestion that the decisions of Law and Wong are flawed because neither judge in those decisions provided any suggestion on how the warrant should have been worded to comply with Vu. The courts assess the facial validity of a warrant and its compliance with the law; and as Vu noted in declining to constitutionally require search protocols to be put in place, the manner of police searches are generally conducted by the courts as an "after-the-fact" review. V. Conclusion [42] Having considered all of the relevant factors, I am satisfied that it would be in the interests of justice in this particular case to follow the decisions in Wong and Law. I am not persuaded that there is a basis to distinguish the reasoning in those decisions from the case before me. [43] I find that the warrant which identified Mr. Salehi's

cell phone as a "thing" to be seized did not provide the police with the requisite specific pre-authorization required by Vu, and adopted in Law and Wong to conduct a search of the contents of his cell phone. Therefore, I am satisfied that Mr. Salehi has met the onus of establishing that the warrant was facially invalid and I find that the search of his cell phone was done in breach of his s. 8 Charter rights. "Devlin J." APPENDIX "A"