



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ritchie, 2018 ONCA 918

DATE: 20181116

DOCKET: C63658

MacPherson,
    Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keith John Ritchie

Appellant

Joseph Wilkinson, for the appellant

Scott Wheildon, for the respondent

Heard: November 2, 2018

On appeal from the convictions entered by Justice Terrence
    A. Platana of the Superior Court of Justice dated February 10, 2017, with
    reasons reported at 2017 ONSC 991.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Keith Ritchie, was convicted of the following offences:
    trafficking in cocaine, trafficking in marihuana, conspiracy to traffic in
    cocaine, conspiracy to traffic in marihuana, participating in or contributing
    to the activities of a criminal organization for the purpose of enhancing its
    ability to commit an indictable offence, and committing an indictable offence
    (trafficking in a controlled substance) for the benefit of or in association
    with a criminal organization. Based on a joint submission, the appellant
    received a global sentence of nine years and six months incarceration.

[2]

The principal issue on the appeal relates to the police seizure of a
    Blackberry owned by another accused who was alleged to be involved in the same
    enterprise. Communications on the Blackberry between the appellant and the
    other accused led to the charges against the appellant. At his trial, the
    appellant sought to exclude those communications on the basis that they
    violated his rights to be secure from unreasonable searches and seizures under
    s. 8 of the
Charter
. The trial judge ruled against him.

[3]

The trial judge did not have the benefit of the decision of the Supreme
    Court of Canada in
R. v
.
Marakah
, 2017 SCC 59. The central
    issue on the appeal is whether the trial judges ruling has been rendered
    incorrect by
Marakah
.

[4]

At the conclusion of the appeal hearing, the court indicated that the
    appeal was allowed and a new trial was ordered, with reasons to follow.  These
    are the reasons.

B.

FACTS

(1)

The
    parties and events

[5]

The Thunder Bay Police seized John Tsekouras Blackberry in 2011
    pursuant to a search incident to arrest as part of a drug trafficking
    investigation. The police searched the Blackberry without warrant. The
    Blackberry contained coded communications that the appellant had sent to Tsekouras.
    The police used these communications in Informations To Obtain (ITOs) sworn
    February 21 and April 10, 2012 in support of two search warrants.

[6]

The first search warrant was to search credit card account information
    for a number referenced on the Blackberry. The data relating to the credit card
    revealed that the appellant had obtained it using his drivers licence and
    passport. The second search warrant was to search the appellants residence.

[7]

Apart from the contents of the Blackberry, there was very little
    information about the appellant, his involvement in the drug trafficking
    activities of the putative criminal organization, or his residence. The basis
    to believe that the appellant lived at the address searched was a one-time tip
    and a single incident where the appellant was observed entering the residence
    in the early evening.

[8]

During the search of the residence, the police recovered the credit card
    bearing the card number referenced in the Blackberry communication between the
    appellant and Tsekouras.

[9]

At his trial, Tsekouras tried to exclude the Blackberry evidence. The
    trial judge found that the police had violated his
Charter
s. 8
    rights, but admitted the evidence under
Charter
s. 24(2). Tsekouras
    was convicted. On appeal, this court upheld the trial judges decision:
R. v.
    Tsekouras
, 2017 ONCA 290, leave to appeal to S.C.C. refused, [2017]
    S.C.C.A. No. 25.

(2)

Pre-trial
    motions

[10]

At
    his trial, the appellant brought several pre-trial motions. Two are relevant
    for this appeal.

[11]

The
    appellant sought to exclude the information obtained as a result of the search
    of Tsekouras Blackberry. The trial judge dismissed the motion on the basis that
    the appellant lacked standing to bring it:

[36] I conclude that, on the basis of
Pammett and Thompson
,
    and the factors in
Edwards
, Mr. Ritchie did not have a reasonable
    expectation of privacy in the messages in Mr. Tsekouras seized phone. Mr.
    Ritchie, therefore, has no standing to challenge the inclusion of information
    obtained as a result of the search of the Tsekouras phone.

[12]

The
    appellant also sought to have the communications between himself and Tsekouras
    excised from the ITOs so that he could then argue that the ITOs were deficient.
    The trial judge dismissed this motion on the basis that the appellant lacked
    standing to bring it:

[53] The cases suggest to me that to have standing to seek
    excision of information or evidence obtained from an illegal search of someone
    elses phone, the accused must establish that he had an independent right to
    privacy in the evidence obtained as a result of that search.



[56] In this case, I have found that there was no expectation
    of privacy in Mr. Ritchies messages to Mr. Tsekouras, therefore, on the basis
    of
Edwards
, no breach of his s. 8 rights to provide a remedy under s.
    24(2).

[57] He has not established entitlement to seek excision of
    information from the ITO or search warrant.

[13]

The
    appellant was convicted on all counts in the indictment. He appeals the
    convictions.

C.

ISSUES

[14]

The
    recent decision of the Supreme Court of Canada in
Marakah
has removed
    several potential issues from the appeal.

[15]

First,
    the Crown concedes that the appellant had standing to mount a
Charter

s.
8 challenge to his messages found on Tsekouras
    Blackberry:
Marakah
, at paras. 13-55.

[16]

Second,
    the Crown concedes that the communications from Tsekouras Blackberry were
    seized in violation of the appellants s. 8
Charter
-protected rights.

[17]

Third,
    the Crown does not contest that the unlawfully obtained information about the
    communications between the appellant and Tsekouras must be excised from the ITOs:
R. v. Garofoli,
[1990] 2 S.C.R. 1421, at pp. 1452-3, and
R. v. Wu
,
    2015 ONCA 667, at para. 38. In light of these concessions, I would frame the
    issues in this fashion:

1.

Is the evidence obtained from Tsekouras Blackberry admissible against
    the appellant by virtue of s. 24(2) of the
Charter
?

2.

If the answer to (1) is No, does the curative provision in s.
    686(1)(b)(iii) of the
Criminal Code
apply?

D.

Analysis

(1)

The
Charte
r s. 24(2) issue

(a) Preliminary question

[18]

Because
    the trial judge concluded that the appellant did not have standing to challenge
    that the ITOs were deficient or to seek the excision of some of the information
    in them, he did not reach the potential
Charter
s. 8 and s. 24(2)
    issues. Now, with the Crown concession on the s. 8 issue, the question becomes:
    should this court return the matter to the trial judge to determine the s.
    24(2) issue or should this court determine it on the basis of the record before
    us?

[19]

In
    my view, there is clear authority for an appellate court to determine a s.
    24(2) issue that was not addressed at trial because the trial judges ruling
    stopped with a conclusion on a standing or
Charter
s. 8 issue: see,
    for example,
R. v. Spencer
, 2014 SCC 43, at para. 75, and
Marakah
,
    at para. 58. The appeal record contains the entire Application Record that was
    before the trial judge on the two motions that are the subject of this appeal. This
    is sufficient to provide a foundation for this court to consider and determine
    the s. 24(2) issue.

(b) The merits

[20]

In
    my view, the three lines of inquiry described in
R. v. Grant
, 2009 SCC
    32, lead to the conclusion that the evidence obtained from Tsekouras
    Blackberry about the appellant must be excluded.

(i) Seriousness of the
Charter
-infringing
    conduct

[21]

In
Marakah
, McLachlin C.J. said this about the search of Winchesters
    phone which contained conversations between Winchester and Marakah, at para.
    66:

The police committed a serious breach of the
Charter
in examining Mr. Winchesters iPhone. That this was an infringement of Mr.
    Winchesters s. 8 right, not Mr. Marakahs, does not detract from its
    seriousness.
Of course, the police also
    breached Mr. Marakahs s. 8 right when, in their search of Mr. Winchesters
    iPhone, they examined the contents of the electronic conversation between the
    two men. This, too, lacked any reasonable pretext of lawful authority.
I conclude that the conduct of police in accessing and searching the electronic
    conversations through Mr. Winchesters iPhone was sufficiently serious to
    favour the exclusion of the evidence. [Emphasis added.]

[22]

In
    my view, what McLachlin C.J. said in the emphasized passage about the
    seriousness of the breach of Marakahs s. 8 right applies with equal force to
    the appellant. Further, due to the timing of the search, if anything, the
    appellants case is stronger. In
Marakah
, the police searched the
    phone without a warrant two hours after Winchesters arrest.  The court
    acknowledged that the police may have acted in good faith:
Marakah
, at
    para. 65. In the appellants case, the police searched Tsekouras phone without
    a warrant six months after they seized it, and obtained a warrant two months
    after that.

(ii) Impact on the appellants
Charter
-protected
    interests

[23]

The
    respondent contends that the severity of the impact of the unlawful search is
    reduced by the fact that the messages were recovered on Tsekouras Blackberry,
    not the appellants. The respondent also asserts that, in any event, the
    evidence was discoverable through constitutional means based on the fact that a
    warrant was eventually obtained, albeit belatedly, to search Tsekouras
    Blackberry. In its factum at para. 36, the Crown says:

While the appellant may have hoped his messages would have
    remained private, the lack of privacy in sent messages is such a basic reality
    that even elementary school aged children are taught that there is an absolute
    loss of control in sent electronic messages. In light of this basic premise and
    a minimal expectation of privacy would not justify the exclusion of evidence.

[24]

Once
    again, the Supreme Court of Canadas decision in
Marakah
provides a
    complete answer to this submission.  McLachlin C.J. said, at para. 67:

The impact of the
Charter
-infringing conduct on Mr.
    Marakahs
Charter
-protected privacy interest was significant.  Though,
    as LaForme J.A. acknowledged, Mr. Marakah had no independent interest in Mr.
    Winchesters iPhone, he nonetheless had a considerable,
Charter
-protected
    privacy interest in his and Mr. Winchesters electronic conversation, the
    contents of which the illegal search of Mr. Winchesters iPhone revealed. That
    electronic conversation revealed private information that went to Mr. Marakahs
    biographical core, as I have described. Mr. Marakah had a reasonable expectation
    that the fact of his electronic conversation with Mr. Winchester, as well as
    its contents, would remain private. The
Charter
-infringing actions of
    police obliterated that expectation. The impact on Mr. Marakahs
Charter
-protected
    interest was not just substantial; it was total.

[25]

The
    appellant is in the same position as Marakah. Accordingly, the impact of the
    unlawful seizure of Tsekouras Blackberry was, in McLachlin C.J.s words,
    substantial, total and considerable: paras. 67 and 69.

(iii) Societys interest in
    the adjudication of the case on its merits

[26]

It
    is obvious that societys interest in the adjudication of this case on its
    merits favours admission of the evidence relating to conversations between the
    appellant and Tsekouras.  The criminal charges against the appellant are very
    serious, including trafficking in cocaine and trafficking in cocaine for the
    benefit of a criminal organization.  The communications on Tsekouras
    Blackberry were used to obtain search warrants that led to reliable and
    probative evidence in the prosecution of the case.

(iv) Balancing the factors

[27]

Once
    again, the analysis in the virtually identical
Marakah
is controlling.
    Having found that two of the
Grant
factors favoured exclusion and one
    favoured admission, McLachlin balanced and concluded, at paras. 72 and 73:

As the Court recognized in
Grant
, at para. 84, while
    the public has a heightened interest in seeing a determination on the merits
    where the offence charged is serious, it also has a vital interest in having a
    justice system that is above reproach, particularly where the penal stakes for
    the accused are high. Though the exclusion of the evidence would eviscerate the
    Crowns case against Mr. Marakah on serious charges, [i]t isimportant not to
    allowsocietys interest in adjudicating a case on its merits to trump all
    other considerations, particularly wherethe impugned conduct was serious and
    worked a substantial impact on the appellants
Charter
right:
Paterson
,
    at para. 56. That is this case.

On balance, I conclude that the admission of the evidence would
    bring the administration of justice into disrepute. It must therefore be
    excluded under s. 24(2) of the
Charter
.

[28]

In
    my view, that is also this case.
Marakah
requires that the evidence be
    excluded.

(2)

The proviso

[29]

The
    respondent raises the issue of the potential application of the proviso in s.
    686(1)(b)(iii) of the
Criminal Code
. However, in its brief argument in
    its factum it concedes that [r]eference to the proviso is inextricably bound
    up with the 24(2) analysis outlined above.

[30]

The
    respondent has not succeeded in its s. 24(2) argument.  I can see no
    independent basis for applying the proviso. The reality is that, without the
    evidence of the appellants communications with Tsekouras, the case against the
    appellant is weak.

E.

DISPOSITION

[31]

I
    would allow the appeal and order a new trial.

Released: JCM NOV 16, 2018

J.C. MacPherson J.A.

I agree. C.W. Hourigan J.A.

I agree. B.W. Miller J.A.


