



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balendra, 2019 ONCA 68

DATE: 20190130

DOCKET: C62701

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rajeev Henry Balendra

Appellant

Glen Henderson, for the appellant

Michael Bernstein, for the respondent

Heard: December 7, 2018

On appeal from the convictions entered on August 23, 2016
    by Justice Susan E. Healey of the Superior Court of Justice, sitting with a
    jury, and from the sentence imposed on August 26, 2016.

Harvison Young J.A.:

[1]

The appellant appeals from his convictions on a
    number of charges relating to the possession of fraudulent and forged credit
    cards and possession of identity information with intention to commit fraud. He
    also seeks leave to appeal from his sentence of four years imprisonment.

[2]

The appellant argues that the trial judge erred
    in admitting evidence that should have been excluded pursuant to s. 8 and s.
    24(2) of the
Canadian Charter of Rights and Freedoms
as the products of warrantless, unreasonable searches. The evidence
    consisted principally of lists of credit card numbers and an apparent template
    for a drivers licence on a USB key seized from the appellant, as well as other
    evidence found in the van he was driving, following his arrest for careless
    driving and possession of a stolen vehicle.

[3]

The appellant also submits that the trial judge
    erred in principle by failing to consider rehabilitation as a factor in the
    sentencing equation, focusing only on deterrence and denunciation. This error,
    the appellant says, led the trial judge to impose a demonstrably unfit
    sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal from conviction, grant leave to appeal from sentence but dismiss the
    sentence appeal.

FACTUAL Background

[5]

On March 13, 2013, two Ontario Provincial Police officers, Sergeant
    Humber and Constable Hitch, detected what they believed to be a stolen vehicle.
    The vehicle, a red Dodge Caravan, was travelling northbound in the center lane
    of Highway 400. Sgt. Humber believed the van was stolen based on information
    obtained from police databases that showed the vehicle on record with Toronto
    Police Services as a stolen vehicle.

[6]

Just prior to the Mapleview Drive exit, the van quickly swerved across
    the right-hand lane of traffic, across the bullnose, and onto the exit ramp. It
    was Sgt. Humber's impression, based on his belief that the vehicle was stolen,
    that this was an evasive maneuver to avoid police pursuit. Constable Hitch, who
    was driving, maneuvered the police vehicle in front of the van and brought it
    to a stop on the shoulder of the exit ramp, with a back-up vehicle arriving
    behind to block the van. Sgt. Humber exited the police vehicle and immediately
    drew his service revolver, pointing it at the passenger still inside the van.

[7]

Both occupants complied with police demands. Sgt. Humber arrested the
    passenger, Serhiy Pidliskovyy, at 3:09 p.m. for possession of stolen property
    in relation to the van. A wallet belonging to Mr. Pidliskovyy was searched at
    the roadside. Sgt. Humber found an Ontario drivers licence in the name of
    Matthew Spazza, bearing a photograph of Mr. Pidliskovyy, as well as a patient
    identification card from Mount Sinai Hospital bearing Mr. Pidliskovyy's photograph
    and name. Sgt. Humber testified that the discrepancy caused him to be suspicious
    about the drivers licence. Inquiries made by him later that day to the
    Ministry of Transportation showed that the licence number, name and address did
    not exist in their records.

[8]

At approximately the same time, the appellant, who had been driving the
    van, was arrested by Constable Hitch for possession of stolen property and
    careless driving. Both individuals were taken into custody at the OPP
    detachment office in Barrie. The van was removed by a towing company and
    secured in a compound within the City of Barrie.

[9]

Sgt. Humber arrived at the detachment office at approximately 3:25 p.m.
    He was not involved in processing either the appellant or Mr. Pidliskovyy, but
    instead continued with the investigation and preparation of the bail documents.
    He was able to confirm the identities of both individuals, and learned that the
    appellant was subject to a drivers licence suspension, which was imposed on
    him for driving a vehicle while under suspension.

[10]

Sometime
    later, Sgt. Humber became aware that Constable Hitch was in possession of a
    passport-sized photograph of Mr. Pidliskovyy that had been discovered during
    the search of the appellant, located in a pocket in the appellants clothing.
    The photograph in question was an identical likeness to that on the drivers
    licence found in Mr. Pidliskovyy's possession. The other significant item found
    in the possession of the appellant was a USB key, which came to Sgt. Humber's
    attention later that day at 9:55 p.m.

The first search of the USB key

[11]

When
    presented with the USB key, Sgt. Humber proceeded to search it, approximately
    seven hours after the appellants arrest. Sgt. Humber testified that he
    believed the USB key could hold valuable information to assist in facilitating
    the creation of the drivers licence found on Mr. Pidliskovyy. He testified
    that at that time in the evening of March 13, 2013, he was engaged in
    investigating a separate impersonation offence in relation to Mr. Pidliskovyy
    and the appellant.

[12]

Sgt.
    Humber looked at the contents of the USB key for approximately 10 to 30
    minutes. He saw that it contained, among other things, multiple credit card
    numbers and what he believed to be a drivers licence template. At that time,
    he made only brief notes about what he looked at on the USB key, but no other
    notes about any further aspect of the process that he followed when accessing
    it. His notes stated that the search of the USB key was "incident to
    arrest". Accordingly, Sgt. Humber agreed that he understood that there was
    a privacy interest in relation to the USB key, and he had turned his mind to
    his right to engage in such search without a warrant.

[13]

Sgt.
    Humber confirmed that the appellant had been arrested at that point only in
    relation to the facts related to the stolen vehicle and careless driving. He
    confirmed that he did not search the USB key in relation to either of those
    offences, nor was there any indication that he might expect to find any
    information pertaining to those offences.

The search of the van

[14]

As
    a result of the information he obtained through the search of the USB key, Sgt.
    Humber decided to conduct a more thorough search of the van that the appellant
    had been driving. On March 14, 2013, he attended at the impound lot where the
    van was being held and proceeded to search it. He testified that he did not
    seek a warrant prior to this search because he understood that the vehicle was
    stolen, and further understood that there would be no expectation of privacy in
    a stolen vehicle. Sgt. Humber acknowledged that he wanted to perform the search
    of the van in part because of what he had found on the USB key, and that his
    intent was to further the investigation.

[15]

While
    searching the van, Sgt. Humber noticed a loose ceiling compartment, from which
    he extracted a concealed plastic bag containing what appeared to be a number of
    credit cards. At that time he noted that the name Matthew Spazza appeared on
    some of the cards, but he took no further steps to process the contents of the
    bag at the impound lot. Sgt. Humber took the bag, along with some other items
    found in the vehicle (including a rental agreement purportedly issued by SSS
    Rent-A-Car to an individual with the surname of Sookhoo), back to the
    detachment to be secured.

The second search of the USB key

[16]

Five
    days later, on March 19, 2013, Sgt. Humber again accessed the USB key in order
    to look at the information contained on it, and printed off numerous pages
    containing approximately 2,500 credit card numbers, the Ontario drivers
    licence that he believed to have been used as a template, and a photograph of
    an unidentified male. He testified that he observed the same information on
    that date that he had seen on March 13. No particular notes were made of the
    procedure used to access the information on March 19. Sgt. Humber testified
    that he made the decision to print off the credit card numbers in particular
    because he believed that another offence had been "stumbled across".
    Using the credit card information, he then contacted a number of banks and
    financial institutions for the purpose of obtaining information about whether
    those card numbers had been compromised for the purpose of fraud or theft.
    Eventually each of those institutions provided him with information on the
    status of the cards and their use, with an estimate of resultant financial
    loss.

[17]

Sgt.
    Humber testified that he did not seek a warrant before accessing the material
    on the USB key and printing it, because he felt that he was lawfully in
    possession of the information, having seen it on a prior occasion incident to
    the arrest of the appellant.

[18]

After
    printing the contents of the USB key on March 19, Sgt. Humber decided to apply
    for a search warrant for the purpose of carrying out a more probing search of
    the device. The warrant was issued on June 27, 2013, after which date the USB
    key was delivered to an officer in the e-crimes unit. The resulting search did
    not reveal any additional information beyond that which Sgt. Humber had already
    obtained.

[19]

Based on the information obtained through the searches, the
    appellant was charged with eight fraud-related offences. He pleaded not guilty
    and elected to be tried before a judge and jury.

[20]

Prior to trial, the appellant brought an application to exclude
    the evidence under s. 24(2), arguing that his s. 8
Charter
rights had
    been infringed by the following three searches:

a.

The first search of the USB key on March 13, 2013;

b.

The search of the impounded van on March 14, 2013;

c.

The second search of the USB key on March 19, 2013.

DECISION BELOW

[21]

The
    trial judge dismissed the
Charter
application: see
R. v. Balendra
,
    2016 ONSC 5143. She found that the appellants s. 8 rights had not been infringed
    by any of the searches.

[22]

With
    respect to the search of the USB key on March 13, the trial judge recognized
    that the appellant had a reasonable expectation of privacy in the USB key. She
    also recognized that because the search was conducted without a warrant, the
    Crown had the burden of establishing that it was reasonable. The trial judge
    found that the Crown met its burden by showing that the search was a valid
    search incident to arrest, in that it was founded on the appellants lawful
    arrest, and was conducted truly incident to the arrest in a reasonable manner.

[23]

With
    respect to the search of the van on March 14, the trial judge determined that
    the appellant had no reasonable expectation of privacy in the van, and thus did
    not have standing to advance a s. 8 claim. The trial judges conclusion was
    based in part on Sgt. Humbers evidence on the
voir dire
that the van
    was stolen, and his evidence that the appellant had no lawful status to operate
    the van because his drivers license was suspended.

[24]

Finally,
    the trial judge found that the search of the USB key on March 19 was not a new
    search, but rather an extension of the search conducted on March 13. As the
    search on March 13 was reasonable, the trial judge reasoned that the search on
    March 19 was also reasonable.

[25]

Given
    the trial judges finding that there was no s. 8 infringement, the evidence
    obtained through the searches was admitted at trial. The appellant was
    convicted of four fraud-related offences and sentenced to four years
    imprisonment.

The issues on appeal

[26]

On appeal, the appellant submits that the trial
    judge erred in her analysis of s. 8 with respect to each of the searches
    conducted by Sgt. Humber. If this court concludes that the searches were unreasonable,
    the appellant submits that the evidence should have been excluded under s.
    24(2), and that an order vacating his conviction and entering an acquittal in
    its place should follow.

[27]

The appellant further submits that the trial
    judge erred in imposing a demonstrably unfit sentence of four years
    imprisonment. If the appeal from conviction is dismissed, he seeks a reduction
    of his sentence.

[28]

The respondent submits that the trial judge did
    not err in dismissing the s. 8 application, and that even if she did, any
    infringement of s. 8 would not have justified excluding the evidence under s.
    24(2). The respondent also notes that a warrant to search the USB key was
    obtained by Sgt. Humber on June 27, 2013. This warrant, the respondent argues,
    would have issued even if the fruits of the warrantless searches of the USB key
    and van were excised from the ITO, such that the evidence would have been
    admissible on this alternative basis.

[29]

With respect to the sentence appeal, the
    respondent submits that the trial judge did not fail to consider relevant
    factors, and that the ultimate sentence imposed was not excessive or otherwise
    demonstrably unfit.

ANALYSIS

[30]

I begin with the standard of review to apply to
    the issues on this appeal. Whether the trial judge erred in determining that the
    searches of the USB key and van did not infringe the appellants s. 8 rights is
    a question of mixed fact and law.
While deference is owed to the trial
    judges factual findings, her legal conclusions are reviewable on the
    correctness standard:
R. v. Shepherd,
2009 SCC 35,
    [2009] 2 S.C.R. 527, at para. 20.

[31]

For the reasons that follow, I find that the
    trial judge correctly determined that the appellant lacked a reasonable
    expectation of privacy in the stolen van. However, I conclude that she erred in
    her analysis of s. 8 with respect to the two warrantless searches of the USB
    key. These searches were not truly incident to arrest and therefore infringed
    the appellants s. 8 rights. Nevertheless, I would decline to exclude the
    evidence under s. 24(2).

[32]

With respect to the sentence appeal, I find that
    the sentencing judge did not err in principle and that the sentence was not
    demonstrably unfit.

The first USB key search on March 13, 2013

[33]

The appellant argues that he had a reasonable expectation
    of privacy in the USB key, and that its search on the evening of March 13 did
    not constitute a valid search incident to his arrest. The search therefore
    infringed his s. 8 right to be free from unreasonable search and seizure.

[34]

The respondent submits that the appellant did
    not have a reasonable expectation of privacy in the USB key, but that even if
    he did, the search was reasonable as a valid search incident to arrest.

(1)

Did the appellant have a reasonable expectation
    of privacy in the USB key?

[35]

I agree with the appellant that it is clear,
    since the decision of this Court in
R. v. Tuduce
, 2014 ONCA 547,
314 C.C.C. (3d) 429,
that
    he had a reasonable expectation of privacy in the contents of the USB key found
    in his pocket.

[36]

The respondent submits that the trial judge
    erred in treating the USB key as though it were a computer or a cell phone. In
    her ruling on the s. 8
voir dire
, the trial
    judge recognized, at para. 42, the appellants reasonable expectation of
    privacy in the USB key in the following manner:

[O]n balance, given that a USB drive is quite
    capable of holding and revealing extensive personal information about a person
    in the same way as a computer, I find that the applicant has established that
    he had a reasonable expectation of privacy in relation to the USB drive.

[37]

In
Tuduce
, at
    paras. 71-75, Gillese J.A. considered the privacy interests implicated in USB
    keys found in a persons possession:

First, a USB key can store a significant amount of data. USB
    keys commonly hold anywhere from one to ten gigabytes of data, and USB keys
    with a storage capacity of over one terabyte exist. It seems likely that their
    storage capacities will only increase over time.

Second, data can be left on a USB key without a users
    knowledge. This data includes information about the date and time a file was
    created or modified and information about the user who created or modified that
    file.

Third, a user does not have complete control over which files
    an investigator will be able to find on a USB key. Data can be salvaged from a
    USB key through forensic analysis even after a user has deleted or saved over
    it.

It is true that a USB key is not a home computer or a cell phone.
    Thus, it may not always contain personal information, like a list of contacts,
    the contents of past communications, and information about an individuals web
    searching habits.

On the other hand, however, a persons personal USB key
    arguably engages more serious privacy interests than a work computer. The two
    key reasons why individuals have a somewhat diminished reasonable expectation
    of privacy in a work computer are that a work computer is not actually owned by
    the employee who uses it, and the employees use of the work computer is often
    subject to terms and conditions imposed by the employer:
R. v. Cole
, 2012
    SCC 53 (CanLII), [2012] 3 S.C.R. 34, at paras. 49-52 and 92. Neither
    of these considerations apply to personal digital storage devices like USB key.

[38]

Here, the USB key was found in the appellants
    pocket. That fact, combined with the potential personal contents of such a
    device, is sufficient to establish that the appellant had a reasonable expectation
    of privacy in the USB key:
R. v. Mann
, 2004
    SCC 52, [2004] 3 S.C.R. 59, at para. 56. It is not necessary for the purposes
    of this appeal to define the level or intensity of that interest relative to
    other such devices with any further precision.

(2)

Was the search of the USB key reasonable?

[39]

Having found that the appellant did have a reasonable
    expectation of privacy in the contents of the USB key, I turn now to the
    question of whether Sgt. Humbers search of the key on the evening of the
    appellants arrest was reasonable as a search incident to arrest.

[40]

The Supreme Court of Canada reviewed the law
    applicable to the scope of searches incident to arrest in the context of cell
    phones in
R. v. Fearon,
2014 SCC 77,
[2014] 3
    S.C.R. 621. Cromwell J., writing for the majority, wrote of the need to
    recognize, on the one hand, the high potential invasion of privacy inherent in
    the search of a cell phone, and, on the other, the importance that cell phones
    may play with respect to law enforcement objectives. At para. 83, Cromwell J.
    set out four conditions with which a search of a cell phone incident to arrest
    should comply in order to be lawful:

1.

The arrest itself must be lawful;

2.

The search must be truly incidental to arrest,
    and have a valid law enforcement purpose in (a) protecting the police, the
    accused or the public; (b) preserving evidence; or (c) discovering evidence,
    including locating additional suspects, in situations in which the
    investigation will be stymied or significantly hampered absent the ability to promptly
    search the cell phone incident to arrest;

3.

The nature and extent of the search must be
    tailored to the purpose of the search; and

4.

The police must take detailed notes of what they
    have examined on the device and how it was searched.

[41]

The three valid law enforcement purposes
    identified by Cromwell J. are drawn from the Supreme Courts previous decisions
    in
Cloutier v. Langlois
, [1990] 1 S.C.R. 158,
    and

R. v. Caslake
,
    [1998] 1 S.C.R. 51. In
Caslake
, the Court

clarified, with respect to the discovering
    evidence purpose, that if the justification for the search is to find
    evidence, there must be some reasonable prospect of securing evidence
of the offence for which the accused is being arrested
: at para. 22 (emphasis in original).

[42]

This restrictive approach to the discovering evidence
    purpose was affirmed by Cromwell J. in
Fearon
,
    though he added three additional restrictions in the context of cell phone
    searches. First, where the purpose of the search is to discover evidence, it
    will only be lawful if the investigation will be stymied or significantly
    hampered absent the ability to promptly search the cell phone incident to
    arrest.
The rationale for this restriction is that it strikes the proper
    balance between law enforcement objectives and privacy interests, in light of
    the nature and vast range of personal information that a cell phone might hold.
    Second, where a search is conducted for any valid purpose, both the nature and
    extent of the search must be tailored
to that purpose. Finally,
    officers must take detailed notes of what they have examined on a cell phone,
    in order to help them focus their search and to permit effective after-the-fact
    judicial review. See
R. v. Tsekouras
, 2017
    ONCA 290,

353 C.C.C. (3d) 349,
    at paras. 89-94.

[43]

The appellant argues that the March 13 search
    was not truly incidental to arrest, and that the trial judge erred in stating
    that the test was met because in searching for evidence, albeit relating to the
    impersonation investigation, the police were acting for a valid purpose
    connected to the arrest. The trial judge found that the Crown had established
    that the warrantless search was reasonable because it was, in all the
    circumstances, incident to the appellants arrest, and that a more restrictive
    interpretation of truly incidental would unduly affect law enforcement.

[44]

With respect, I agree with the appellant that
    the trial judge erred on this point. It is clear from
Caslake
and
Fearon
that the requirement
    that the search be truly incidental to the charge for which an accused has
    been arrested is to be strictly interpreted. At para. 76 of
Fearon
, Cromwell J., having stated that the requirement that the search of
    a cell phone be truly incidental to arrest should be strictly applied,
    continued:

it is not enough that a cell phone search in
    general terms is truly incidental to the arrest. Both the nature and the extent
    of the search performed on the cell phone must be truly incidental to the
particular
arrest for the
particular
offence. [Emphasis added.]

[45]

Here, Sgt. Humber candidly acknowledged in his
    evidence on the
voir dire

that he looked at
    the USB key because he thought that it could have evidence relating to the
    developing impersonation investigation, and not because he expected to find any
    evidence in relation to the careless driving or possession of stolen property
    charges that had been laid. The appellant had not been charged with anything
    relating to credit card fraud or impersonation at that point.

[46]

The test for determining whether a search is
    incidental to arrest has both a subjective and an objective component. While
    Sgt. Humber subjectively believed his look at the USB key was incident to the
    appellants arrest, this belief was not objectively reasonable because the
    officer was not looking for information relating to the stolen van charge but
    rather to the investigation that was superseding it with respect to which no
    charges had yet been laid. Put another way, he was not (subjectively) aware
    that the initial arrest did not (objectively) authorize him to look at the USB
    key in order to find evidence of impersonation or fraud.

[47]

This is very similar to the facts in
Caslake
. In that case, the officer would objectively have had a lawful
    basis for a search incident to arrest that led to the discovery of a nine-pound
    bag of marijuana in the appellants car. However, subjectively, the officer had
    not been searching for evidence incident to the arrest, but rather was doing so
    in compliance with an RCMP policy requiring that the contents of an impounded
    car be inventoried. As a result, the Supreme Court found that the search did
    not fall within the bounds of a search incident to arrest, although it admitted
    the evidence pursuant to s. 24(2) of the
Charter
.

[48]

The other issue with the search conducted by Sgt.
    Humber on March 13 is that there was no evidence that the investigation would
    be stymied or significantly hampered absent the ability to search the USB key
    incident to arrest. To the contrary, both the appellant and Mr. Pidliskovyy had
    been arrested and placed in police custody. The USB key and the van had also been
    seized and secured. In contrast to computers and cell phones, there was no risk
    of the USB key being accessed or otherwise tampered with remotely. As Cromwell
    J. put it in
Fearon
, at para. 80, if all
    suspects a
re in custody and any firearms and stolen property have been
    recovered, it is hard to see how police could show that the prompt search of a
    suspects cell phone could be considered truly incidental to the arrest as it
    serves no immediate investigative purpose. The same reasoning applies to the
    search of the USB key in this case.

[49]

In short, I find that the first search of the
    USB key was not objectively reasonable because it was not conducted to find
    evidence of the particular offences for which the appellant had been arrested. Had
    it been related to those offences, the search would still not be justified
    because the investigation would not have been stymied or significantly hampered
    absent the search incident to arrest.

[50]

The fact that the search was not objectively
    incidental to arrest is sufficient to address its reasonableness on those
    grounds. However, I disagree with the appellants argument that the search
    could not have been valid because it was conducted a number of hours after his
    arrest. While there are temporal limits to a search incident to arrest, there
    is no firm deadline that defines this limit. Rather, as Lamer C.J. stated in
Caslake
, at para. 24:

As a general rule, searches that are truly
    incidental to arrest will usually occur within a reasonable period of time
    after that arrest. A substantial delay does not mean that the search is
    automatically unlawful, but it may cause the court to draw an inference that
    the search is not sufficiently connected to the arrest.

[51]

Here, Sgt. Humber inserted the USB key into a
    computer later during the same day, and during the same shift. This was within
    a reasonable period of time after the arrest. There was no problem with the
    temporal nexus to the arrest in itself in the circumstances of this case.

[52]

I would also not attach great weight in the
    circumstances of this case to Sgt. Humbers failure to take detailed notes when
    he first looked at the contents of the USB key on March 13. He spent about 10-30
    minutes looking at it and determined that it contained a long list of credit
    card numbers, a drivers licence template, and the image of a drivers license
    with a photograph of an unidentified person. In these circumstances, the need
    for detailed notes does not appear to be as strong as was the case of the cell
    phone at issue in
Fearon
. Cell phones
    frequently have many apps and icons, and one may see a great deal of categories
    of information whose contents range across a wide number of subjects. In this
    case, the USB key contents were narrower in range and it is clear that while
    Sgt. Humber did not take notes, he remembered the nature of what he saw.

The search of the van on March 14, 2013

[53]

The appellant argues that he had a reasonable expectation
    of privacy in the van because he had care and control of the van by virtue of
    driving it. I disagree.

[54]

Sgt. Humber searched the van which the appellant
    had been driving and found, among other things, a bag containing 16 credit
    cards hidden behind a loose ceiling compartment. The trial judge found that the
    appellant had not established a reasonable expectation of privacy in the van,
    noting that this was not a case, such as
R. v. Belnavis
, [1997] 3 S.C.R. 341, where the driver had the apparent consent of
    the owner to operate the vehicle. Here, Sgt. Humber testified that the van had
    been registered as a stolen vehicle. The appellant offered no contradictory
    evidence regarding his ownership of the van, or regarding any authorization
    given by the registered owner to operate the vehicle. In short, as the trial
    judge found, there was no evidence to establish that the appellant had any
    ability to regulate access to the van or any legitimate privacy interest with
    respect to it.

[55]

As a result, the trial judge found that s. 8 was
    not engaged by Sgt. Humbers search of the van. I see no basis to interfere
    with this finding. The credit cards found inside the van were thus properly admitted
    into evidence at trial.

The second USB key search on March 19, 2013

[56]

On March 19, 2013, Sgt. Humber took another look
    at the USB key. His evidence was that he did not seek a warrant before he did
    so and that he merely printed the material he had seen the first time. This
    consisted of a list of about 2500 credit card numbers, the Ontario drivers licence
    that he believed to have been used as a template, and a drivers license with a
    photograph of an unidentified male. He did not seek a warrant because he
    believed he was lawfully in possession of the USB key, having already reviewed
    its contents on March 13. The trial judge held that this second look at the USB
    key was essentially a continuation of the first search and was therefore
    reasonable as a search incident to arrest.

[57]

The appellant submits that this second search
    was also unreasonable and a violation of his s. 8 rights. First, he submits
    that even if the March 13 search was reasonable as incident to the arrest, this
    one was not, especially because it failed the temporal connection test from
Caslake
as it took place six days after the arrest. In addition, he argues
    that the officers failure to take detailed notes, which Cromwell J. emphasized
    should be done as a constitutional imperative, should determine this issue. As
    Sgt. Humber testified, he conducted the second search in order to print out
    what he had seen the first time.

[58]

I agree with the appellant that the trial judge
    erred in treating the March 19 search as a continuation of the March 13 search.
    The two searches were factually and temporally distinct. In addition, the
    officer conducted the March 19 search with two purposes in mind which had
    crystallized since the first search.

[59]

First, he testified that he was intending to
    communicate with banks to determine whether the cards listed had been
    compromised, which he did do. Second, he testified that he was preparing an ITO
    so that a more thorough search could be performed on the USB key such as the
    retrieval of deleted items and procedures requiring more technical skills. As I
    have already mentioned, however, there was no exigency because the USB key had
    been seized and its contents, unlike those of a cell phone or computer, could
    not have been remotely affected. In addition, it would appear that Sgt. Humber would
    already have had ample grounds, on the basis of what had been lawfully found on
    the appellant and Mr. Pidliskovyy, along with the fruits of the search of the van
    and the results of the investigation, to obtain a warrant for the search of the
    USB key, which was ultimately obtained. No additional evidence was found on the
    key. As with the first search of the USB key, this second search was not
    reasonable as it was not truly incidental to the appellants arrest for
    possession of stolen property.

[60]

In conclusion, the two searches of the USB key
    were unreasonable. The fact that Sgt. Humber honestly believed that he was
    entitled to view the contents of the key incident to the appellants arrest is,
    as I will discuss below, a consideration that may bear on whether the evidence
    should be excluded, but it is not one which bears on the question of whether
    the appellants s. 8 rights were breached to begin with.

Should the evidence found on the USB key be excluded?

[61]


Section 24(2) of the
Charter
provides
    that evidence obtained in a manner that infringes the accuseds rights shall
    be excluded if it is established that, having regard to all the circumstances,
    the admission of it in the proceedings would bring the administration of
    justice into disrepute. This requires courts to assess and balance the effect
    of admitting the evidence in light of three factors:
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The party seeking to have the
    evidence excluded bears the burden of proving its exclusion is required.

[62]

Because the trial judge did not find any breach
    of the appellants rights under s. 8, she did not conduct an analysis under s.
    24(2). However, the application record is sufficient to permit this court to
    conduct a fresh s. 24(2) analysis on appeal:
R. v. Herta
, 2018 ONCA 927. I provide that analysis below.

(1)

The seriousness of the breach

[63]

The first factor to consider is the seriousness
    of the
Charter
-infringing state conduct in
    issue. The question is whether admission of the evidence would bring the
    administration of justice into disrepute by sending a message to the public
    that the courtseffectively condone state deviation from the rule of law by
    failing to dissociate themselves from the fruits of that unlawful conduct:
Grant,
at para. 72.

[64]

Here, in my view, the police conduct lies along
    the middle to more serious end of the spectrum. Sgt. Humber testified that he
    searched the USB key to find evidence of impersonation. Yet as Sgt. Humber was
    aware, the appellant had not been arrested for impersonation. The search thus
    infringed the clear legal rule established in
Caslake
,
which holds that where a search incident to arrest is
    conducted to find evidence, it must be for evidence of the offence for which
    the person was arrested:
Caslake,
at para. 22.

[65]

The fact that the search infringed a clear legal standard renders
    the breach more serious than it might otherwise have been. In
Grant,
at
    para. 75, the Supreme Court cautioned that ignorance of
Charter
standards on the part of the police must not be encouraged or rewarded by
    treating such breaches as less serious. Even where a breach is not deliberate,
    it may still be reckless, and therefore serious, if the police show insufficient
    regard for
Charter
rights:
R. v. Harrison
, 2009 SCC 34,
    [2009] 2 S.C.R. 494, at para. 24. Indeed, as the Supreme Court observed in
R.
    v. Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, in some cases
    the exclusion of evidence may be warranted solely on the basis of clear
    violations of well-established rules governing state conduct.

[66]

This is not to suggest that Sgt. Humber blithely
    or recklessly disregarded the appellants
Charter
rights, as was the case with the officer in
Harrison
. To the contrary, Sgt. Humber testified that he genuinely believed
    that he could search the USB key on the night of the arrest, as part of an
    evolving criminal investigation that was still in its early stages. There is no
    reason to doubt his sincerity on this point, particularly in light of the trial
    judges finding that Sgt. Humber presented as a candid, credible witness.

[67]

However, the fact that Sgt. Humber believed his
    search of the USB key was
Charter­
-compliant
    does not necessarily diminish the seriousness of the breach. In
R.
    v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59, the
    Supreme Court held that an officers subjective belief that the appellants
    rights were not affected does not make the violation less serious, unless his
    belief was reasonable.
Buhay
was applied by
    this court in
R. v. Davidson
, 2017 ONCA 257,
352
    C.C.C. (3d) 420, where Laskin J.A. noted, at para. 48, that
a
    finding of good faith police conduct was unavailable when the polices breach
    of s. 8 was committed in ignorance of the scope of their constitutional
    authority.

[68]

In my view, the principle in
Buhay
applies to this case. Sgt. Humber searched the USB key to find
    evidence of impersonation, 15 years after
Caslake
made it clear that he could not have done so without a warrant. The
    search thus fell squarely outside the scope of a valid search incident to
    arrest. In these circumstances, Sgt. Humbers belief that the search was
Charter­
-compliant was unreasonable. It follows that the breach was serious.

[69]

As a result, I find that this factor weighs in favour
    of excluding the evidence.

(2)

The impact of the breach on the appellant

[70]

The second factor to consider is the impact of
    the
Charter
breach on the
Charter
-protected interests of the appellant. The court should consider
    whether admission of the evidence may signal to the public that
Charter
rights, however high-sounding, are of little actual avail to the
    citizen, breeding public cynicism and bringing the administration of justice
    into disrepute:
Grant,
at para. 76.

[71]

As Cromwell J. observed in
Fearon
, at para. 96, any search of a cell phone has the potential to be a
    very significant invasion of a persons informational privacy interests. However,
    there, the actual infringement of the appellants rights were found not to have
    been particularly grave. In the circumstances, as in the present appeal, the
    appellant had not challenged the search warrant that had ultimately issued,
    which strongly suggested that, even if the findings of the unreasonable search
    had been excised from the ITO, reasonable and probable grounds would still have
    been made out.

[72]

On the facts of this case, while the contents of
    a USB key clearly have the potential to contain a great deal of personal
    information, this USB key contained only data relating to other people. The
    appellants privacy interest was diminished for that reason: see
R.
    v Jarvis
, 2017 ONCA 778, 139 O.R. (3d) 754, at paras.
    77-78
,
appeal as of right to S.C.C. heard and
    reserved April 20, 2018
.

[73]

While there were, as I have found, two unreasonable
    searches of the USB key rather than one, I would not find that this exacerbated
    the impact on the appellants rights because no new evidence was sought or
    obtained.

[74]

On balance, I conclude that this factor weighs
    in favour of admitting the evidence.

(3)

Societys interest in the adjudication of the
    case on its merits

[75]

The third factor to consider, societys
    adjudication of the case on its merits, requires the court to consider whether
    the truth-seeking function of the criminal trial process would be better served
    by admission of the evidence, or by its exclusion:
Grant,
at para. 79.

[76]

This factor strongly favours admission of the
    evidence. The evidence found was reliable and cogent. Credit card fraud and
    related offences are serious and can have devastating effects on their victims.
    Society had a strong interest in the adjudication of this case on its merits.

[77]

Balancing the three
Grant
factors, I conclude that the evidence found on the USB key should
    not have been excluded as the appellant argues it should have been. Though Sgt.
    Humbers search constituted a serious breach of the appellants s. 8 rights,
    the actual impact of the breach on the appellant was minimal, given both the
    content of the information found on the USB key and the fact that a warrant was
    ultimately obtained which authorized its search. The evidence was, moreover, wholly
    reliable and central to the Crowns case. For these reasons, I conclude that
    the admission of the evidence at trial would not bring the administration of
    justice into disrepute.

The appeal from sentence

[78]

In seeking a reduction of his sentence of four
    years imprisonment, the appellant argues that the trial judge erred in
    principle by failing to consider rehabilitation as a relevant factor. I
    disagree. The trial judge expressly considered rehabilitation as a factor, but placed
    greater weight on the objectives of deterrence and denunciation in light of the
    appellants lengthy criminal record. That record dated back to 2001 and
    encompassed multiple prior convictions, including one conviction in 2009 for
    possession of a forged credit card, for which the appellant was sentenced to 15
    months in jail. As the trial judge stated, based on [the appellants] criminal
    recordthe focus of the sentence cannot be on rehabilitation. Both the record
    and his recent convictions require a penitentiary sentence in order to meet the
    overriding objectives of specific and general deterrence and denunciation. It
    was open to the trial judge on the record before her to take this approach.

[79]

Given the gravity of the offences and the
    appellants lengthy criminal record, I find that the sentence of 4 years
    imprisonment, while on the high end of the range, was not demonstrably unfit.

CONCLUSION

[80]

For the foregoing reasons, I would dismiss the
    appeal from conviction, grant leave to appeal from sentence but dismiss the sentence
    appeal.

Released: GP Jan 30, 2019

A. Harvison Young
    J.A.

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



