



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lall, 2019 ONCA 317

DATE: 20190423

DOCKET: C62785

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrece Lall

Appellant

Carlos Rippell, for the appellant

Frank Au, for the respondent

Heard: January 18, 2019

On appeal from the convictions entered by Justice Bruce
    Durno of the Superior Court of Justice on June 23, 2016, arising from rulings
    made by Justice Nancy Mossip of the Superior Court of Justice on November 24,
    2015, January 11, 2016 and March 8, 2016.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals from her convictions for two counts of robbery
    with a firearm. The only issues raised on appeal relate to a motion judges
    rulings concerning the validity of "tower dump" production orders for
    two cell phone towers under which cell phone records that connected the
    appellant to the robberies were produced.

[2]

Between December 2012 and June 2013, the appellants then boyfriend,
    Nakeem Johnson, was involved in a series of robberies in southern Ontario.
    During the robberies, Johnson pointed a firearm at store employees, threatened
    to kill them, and stole store merchandise and store employees property. The Crown
    alleged that the appellant served as a lookout and getaway driver in relation
    to two robberies Johnson committed in Guelph.

[3]

The appeal turns on the motion judge's ruling concerning the validity of
    production orders relating to Johnsons May 2013 robbery of an Aurora camera
    store. Police obtained production orders for cell phone records covering a
    15-minute period proximate to the robbery from two nearby cell phone towers.
    The appellants phone number appeared in those records and showed communications
    with Johnsons phone. Following further investigation, this connection enabled
    the police to identify the appellant as a suspected party to the two Guelph
    robberies.

[4]

It is undisputed that the Information to Obtain the Aurora tower dump
    production orders contained inaccuracies. The inaccuracies pertained to the ITO
    affiants description of what two camera store employees, a Mr. Asselin and a
    Ms. Devries, said in police video statements about cell phone use by one of the
    two perpetrators of the Aurora robbery.

[5]

In four paragraphs of the ITO, the affiant asserted that both employees
    observed one of the perpetrators using a cell phone to communicate with a third
    person. This assertion was not accurate.

[6]

In his video statement, Mr. Asselin did not say he observed either of
    the perpetrators communicating on a cell phone. Rather, he saw one of the
    perpetrators pull out a cell phone and check the time. This happened just
    before the perpetrator put him and Ms. Devries into a bathroom at the rear of
    the store. Mr. Asselin presumed the perpetrators called the driver out front to
    go around back, but he qualified his assumption by saying: [t]his is
    speculation.

[7]

In the initial part of her video statement, Ms. Devries seemed to
    indicate she saw one of the perpetrators use a cell phone to call a third
    person and tell that person to pull around. Later in her video statement, Ms.
    Devries said she saw one of the perpetrators with a cell phone in his hands. The
    perpetrators closed the door to the bathroom where they had put her and Mr.
    Asselin. Then she heard just pull around back, just pull around back. Ms.
    Devries said she did not know whether the perpetrator was saying that into the
    phone or one of the perpetrators was telling the other to send that instruction
    in a text message.

[8]

The appellant challenged the validity of the production orders under s.
    8 of the
Canadian Charter of Rights and Freedoms
and sought the
    exclusion of the resulting evidence under s. 24(2). She requested leave to
    cross-examine the ITO affiant and any sub-affiant, asserting that falsehoods
    and misleading information in the ITO were evidence of bad faith. When leave to
    cross-examine was denied, the appellant asserted that the inaccuracies in the
    ITO had to be excised and that the issuing justice could not have issued the
    warrant based on the remaining information.

[9]

The motion judge denied the appellant's request to cross-examine,
    finding no reasonable likelihood that the proposed cross-examination will
    undermine the basis of the authorization. Ultimately, the motion judge
    dismissed the appellant's s. 8 application because, even following excision and
    amplification, there remained sufficient grounds upon which the Justice of the
    Peace could have granted the production order.

[10]

Following
    these rulings, the appellant pleaded not guilty to the two Guelph robberies
    before a different judge but did not contest a statement of facts filed by the
    Crown. The appellant was convicted and sentenced to a global sentence of four years
    and nine months imprisonment in addition to three months credit for
    presentence custody.

[11]

The
    appellant submits that the motion judge erred in refusing her request for leave
    to cross-examine and ultimately in dismissing her
Charter
application.

[12]

For the reasons that follow, we dismiss the appeal.

Background

[13]

The
    Aurora camera store robbery occurred shortly before 9:00 p.m. on May 14, 2013
    and was over in a matter of minutes.

[14]

On
    June 13, 2013, the police obtained production orders for all records
    pertaining to cellular calls between 8:50 p.m. and 9:05 p.m. on May 14, 2013 from
    two Aurora cell phone towers located near the site of the robbery. The records
    sought included subscriber information, incoming and outgoing calls and text
    messages, and the time and duration of the calls.

[15]

The
    introductory paragraphs of the ITO were entitled Background of Investigation.
    At paras. 3-17 of the Background section, the police officer affiant set out a
    summary of the police report of the robbery, which had been prepared by another
    officer. The summary indicated that two camera store employees, a Mr. Asselin
    and a Ms. Devries, were in the store at the time of the robbery. Further, it
    indicated that two masked males, one with a gun and one with a knife, entered
    the store just as the employees were preparing to close up. The male with a
    knife locked the front door of the store behind him. Once the culprits had obtained
    a quantity of merchandise, they escorted the two employees into a washroom at
    the rear of the store and bound their hands with zip ties. Ms. Devries advised
    the men that the rear door of the store was alarmed and that the alarm would go
    off if they used it to exit. They ignored this comment and eventually went out
    the rear door. The summary included a statement, at para. 12 of the ITO, that
    one of the suspects used his cell phone to contact an unknown person and directed
    that person to come to the back door of the store:

12.     As
    the suspects were engaged in the robbery one of the suspects used his cellular
    phone he contacted an unknown person and directed the unknown person to come
    around to the back door of the store. [Emphasis added.]

[16]

At
    para. 18 of the Background section, the affiant stated that the store employees
    were transported to a police station where they each provided a video
    statement. The affiant stated she had reviewed both statements. At para. 19 of
    the ITO, still in the Background section, the affiant asserted that, in their
    statements, both store employees mentioned observing one of the culprits
    speaking on a cell phone:

19.     DEVRIES
    and ASSELIN both mention in their statements that they observed the suspect
    with a gun on his phone speaking to an unknown person instructing to come
    around to the back door. [Emphasis added.]

[17]

The
    ITO affiant set out her grounds to believe that the records to be seized would
    afford evidence of the robbery at paras. 27-34 of the ITO. In those paragraphs,
    the affiant explained that as a result of her investigative experience she was
    aware that people involved in crimes commonly use cell phones to communicate during
    the planning, execution, and escape stages of a crime. She asserted that both witnesses
    mentioned in their video statements that one of the culprits had used a cell
    phone to communicate with an unknown person. The affiant also asserted that
    obtaining cell phone records, including subscriber information, from cell phone
    towers in the vicinity of the robbery proximate to the time of the robbery
    could assist the police in identifying suspects.

28.     Both
    victims in this case, Christine DEVRIES and Derrick ASSELIN in their video
    statements told police that they observed suspect #1 using his cellular phone
    and communicating with an unknown third party who is believed to have been in
    the getaway vehicle.



31.     The
    evidence  being the data transmissions from the area towers  is relevant to
    the offence because it is known that suspect #1 was observed by both victims
    (DEVRIES and ASSELIN) to have used his cellular phone while inside the Blacks
    store to communicate with an unknown person told to Come around to the back
    door

38.     Both
    victims of the robbery provided police with video statements. Both DEVRIES and
    ASSELIN stated to police that
they observed suspect #1 on his cellular phone
    communicating with an unknown person
and instructing that person to pull
    around to the back door. [Emphasis added.]

The motion judges reasons

(i)

Denying leave to cross-examine

[18]

At
    the conclusion of the argument concerning leave to cross-examine, the motion
    judge gave brief oral reasons for denying leave. She confirmed and supplemented
    those reasons in her written reasons on the s. 8 motion.

[19]

Concerning
    the request for leave to cross-examine, the motion judge said the decision is
    discretionary, and the test is quite a rigorous one to meet. In that regard,
    she noted that the focus of the cross-examination is limited to questions
    directed to establish that there was no basis upon which the warrant could have
    been granted and [t]hat too is a well-established and narrow test.

[20]

In
    the motion judges view, cross-examination would confirm that the ITO was
    sloppy and inaccurate in asserting that both of the witnesses observed one
    of the culprits speaking on his cell phone to an unknown person, instructing
    him to come around to the back of the store. However, she rejected a defence
    submission that the inaccuracies were the result of a deliberate attempt to
    satisfy the need for evidence of cell phone use to justify a production order.

[21]

Based
    on a consideration of the ITO and both video statements as a whole, the motion
    judge said she did not think that the inaccuracies provide[d] prima facie
    evidence of bad faith, or deliberate misleading by the affiant or sub-affiant 
    which finding would likely open the door for the defence to cross-examine the
    affiant on the inaccuracies. The motion judge concluded her reasons on this
    issue as follows:

Cross-examination would reveal the admitted inaccuracies. With
    respect to Mr. Asselin, it may reveal [the affiant] overstated the evidence
    with respect to what Mr. Asselin said.
But I disagree with defence counsel
    that the ITO discloses a
prima facie
case for bad faith, or deliberate
    misleading by the officer
.


The focus of the leave application is whether there is a
    reasonable likelihood the cross-examination will undermine the basis of the
    authorization, and my answer to that question is there is no such reasonable
    likelihood
.

All of the evidence the defence needs to make the argument with
    respect to the legal validity of the production order for the tower dump data
    is in his hands. [Emphasis added.]

(ii)

Dismissing the s. 8 motion

[22]

As
    for the s. 8 motion, the motion judge was satisfied that after excising erroneous
    information in the ITO and amplifying it to clarify that both witnesses merely
    observed one of the perpetrators with a cell phone and that Ms. Devries heard a
    transmission of either a call or a text to pull around back, there was evidence
    based upon which a Justice of the Peace could find that a cell phone
    transmission of some kind was made at the time of the robbery. While
    acknowledging that the ITO included inaccuracies about Mr. Asselin observing
    cell phone use and omitted Ms. Devries clarifying comments about not knowing
    whether there was a call or a text, the motion judge concluded that these
    errors did not rise to the level of the type of lie or misrepresentation
    present in
R. v. Morelli
2010 SCC 8, [2010] 1 SCR 253.

Discussion

(i)

Did the motion judge err in denying leave to cross-examine the affiant
    and sub-affiant?

[23]

The
    appellant argues that the motion judge applied the wrong test in denying leave
    to cross-examine the affiant and sub-affiant of the ITO. She submits that the
    motion judge made two discrete but related errors in setting out the test for
    obtaining leave to cross-examine. These errors, in combination, led the motion
    judge to wrongly conclude that cross-examination was unnecessary and that the
    appellant had all she required to argue her s. 8 application.

[24]

First,
    the appellant points to the motion judges statement in her ruling that the
    test for obtaining leave to cross-examine the affiant of an ITO is quite a
    rigorous one to meet. The appellant asserts that, in the face of the Supreme
    Court of Canadas description of the test in
R. v. Pires; R. v. Lising
,
    2005 SCC 66, [2005] 3 SCR 343, the motion judges characterization of the test
    is clearly wrong. In
Pires
, at para. 40, the Supreme Court confirmed
    that the test is neither strict nor onerous; all that is required is a
    showing of a reasonable likelihood that [cross-examination] will assist the
    court to determine a material issue.

[25]

Second,
    the appellant argues that the motion judge erred in requiring 
prima facie
evidence of bad faith or deliberate misleading by the affiant or sub-affiant
    in order to support a request for leave to cross-examine. The Supreme Court of
    Canada rejected such a strict requirement in
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, noting, at p. 1464, that cross-examination is unnecessary where a
prima
    facie
case of bad faith is made out without it.

[26]

We
    do not accept these submissions. Read in context, the motion judges statement
    that the test for obtaining leave to cross-examine is quite a rigorous one to
    meet was no more than a reference to the fact that the permissible scope of
    cross-examining the affiant of an ITO is narrow.

[27]

To
    obtain leave to cross-examine the affiant of an ITO, it is necessary to
    demonstrate that the proposed questions will be relevant to the determination
    of whether there was a basis upon which the warrant could have issued. As the
    motion judge correctly noted, the focus of the cross-examination is limited to
    questions directed to establish that there was no basis upon which the warrant
    could have been granted. See
Garfoli
, at p. 1465.

[28]

The
    motion judge went on to quote from para. 41 of
Pires
, where the Supreme
    Court observed that demonstrating false information in an ITO is unlikely to be
    useful unless it can support an inference the affiant knew or ought to have
    known the information was false:

[C]ross-examination that can do
    no more than show that some of the information relied upon by the affiant is
    false is not likely to be useful unless it can also support the inference that
    the affiant knew or ought to have known that it was false
. At this stage,
    a reasonable belief in the existence of the requisite statutory grounds will
    suffice for the granting of an authorization. Upon further investigation, the
    grounds relied upon in support of the authorization may prove to be false. That
    fact does not retroactively invalidate what was an otherwise valid authorization.
    [Emphasis added.]

[29]

From
    the appellants perspective the nature of the inaccuracies in the ITO
    demonstrated bad faith: no reasonable person could have watched the videotaped
    statements and made the errors that were present. Contrary to the statements in
    the ITO, neither witness observed either perpetrator use a cell phone to
    communicate, and viewed as a whole, the video statements were not capable of
    supporting an inference of cell phone use. The appellant wanted leave to
    cross-examine so she could explore how the errors in the ITO came about.

[30]

However,
    as the motion judges reasons on the s. 8 application more fully demonstrate,
    she took a broader view of the inferences available from the videotaped
    statements than does the appellant and a more benign view of the inaccuracies
    in the ITO. The motion judge concluded, at least implicitly, that Mr. Asselins
    evidence
[1]
supported Ms. Devries inference that an accomplice was alerted by a phone call
    or a text message to come to the back of the store. Although the ITO was not
    precise in setting out the two employees evidence, in the motion judges view,
    the nature of the inaccuracies did not, in all the circumstances, raise any
    issue of bad faith.

[31]

Concerning
    the motion judges use of the terminology 
prima facie case
, based on
    our review of the record, the motion judge was simply responding to the
    appellants position advanced in oral argument. The motion judge ultimately
    decided that the nature of the inaccuracies did not raise any issue of bad
    faith and therefore did not support the appellants request for leave to
    cross-examine.

[32]

Although
    we consider that another judge could have reached a different conclusion
    concerning whether to grant leave to cross-examine, we are not satisfied that
    the motion judge misstated the test for granting leave or erred in its application.
    Her decision on this issue is entitled to deference: see
Pires
, at
    paras. 46-47.

(ii)

Did the motion judge err in dismissing the appellants
Charter
application?

[33]

While
    acknowledging that a motion judges assessment of whether an issuing judge
    could have issued a production order is entitled to deference (see e.g.
R.
    v. Ebanks
, 2009 ONCA 851, 97 OR (3d) 721, at para. 22), the appellant
    argues that the motion judge in this case made three errors, each of which
    would enable this court to set aside the motion judges decision.

[34]

The
    first two alleged errors are interrelated. We will address them together. First,
    the appellant argues that the motion judge misapprehended the store employees
    evidence by concluding there was reliable direct and circumstantial evidence,
    upon which a Justice of the Peace acting judicially could find that a cell
    phone transmission of some kind was made at the time of the robbery.

[35]

The
    appellant argues that, although both employees saw a cell phone, neither saw
    one of the perpetrators use a cell phone. According to the appellant, Ms.
    Devries claim that she heard a transmission of a call or a text was nothing
    more than speculation  a conclusion that Mr. Asselin acknowledged. The motion
    judges finding that the evidence was equivocal as to whether Ms. Devries
    maintained her original belief that one of the perpetrators made a call or sent
    a text message was therefore irrelevant; either way Ms. Devries was
    speculating. Once the false statements about the store employees observing cell
    phone use were excised, there was no basis left on which the authorizing judge
    could have issued the production orders.

[36]

Second,
    the appellant argues that the motion judge erred in distinguishing
R. v. Morelli
.
    The appellant asserts that, just as in
Morelli
, the misleading
    statements in, and omissions from, the ITO went to the basis for the
    authorization. Moreover, they left the misleading impression that the store
    employees observed cell phone use, when there was no evidentiary basis to
    support a finding of cell phone use. In any event, amplification was not
    available  the errors and omissions were not minor, technical errors  and,
    absent cross-examination, a finding of good faith was not available.

[37]

We
    reject the appellants argument that drawing an inference of cell phone use from
    the witnesses video statements amounted to speculation. The evidence of the
    two employees disclosed that the perpetrators came in the front door of the
    store and supported the reasonable inference that the perpetrators went out the
    back door (because the employees heard the back door alarm). Both employees saw
    one of the perpetrators with a cell phone. Ms. Devries video statement
    included the following excerpts:

[T]he shorter guy pulled out his cell phone. It was an L.G. and
    he looked like he was about to make a phone call

Actually he  now that Im thinking  I heard him say pull
    around back but I dont know if he was saying that into the phone or if it was
    the one guy telling the other guy to text him and say pull around back, but I
    would assume they would call just to get it over with. All I saw was that he
    had his phone in his hands  and then they closed the door and I heard just
    pull around back, just pull around back

It might not have been a phone call. I didnt hear
    any numbers dialed now that I think about it, but he could have had it on
    silent.

[38]

The
    inference that one of the perpetrators used a cell phone to communicate during
    the robbery was compelling on this evidence. This factor, in itself,
    distinguishes this case from
R. v. Morelli
in which the Supreme Court
    found that an affiants statements that a computer technician had seen
    pornography on a computer and had subsequently noted that the pornography had
    been removed were incorrect and that a corrected ITO could not support an
    inference that the accused was in possession of child pornography:
Morelli
,
    at paras. 44.

[39]

In
    this case, the motion judge corrected the ITO by excising the erroneous statements
    about direct observations of cell phone use and substituting the witnesses
    observations of the perpetrator handling a cell phone. The motion judge also
    added Ms. Devries clarification that, on reflection, what she originally believed
    was a cell phone call may have been a text telling a third person to pull
    around back. These were permissible amplifications. See
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54-59;
R. v. Plant
, [1993]
    3 S.C.R. 281, at pp. 298-99. The motion judge found no evidence of bad faith on
    the part of the police. The amplifications simply presented a more accurate picture
    of the evidence the affiant had in her possession when she swore the ITO. Rather
    than inferences made from direct observations, the amplifications were limited
    to the underlying evidence. Nonetheless, the amplifications gave rise to a
    reasonable inference of cell phone use during the robbery. Thus, there was
    evidence based upon which the issuing justice could have found that a cell
    phone transmission of some kind was made during the robbery and that the cell
    phone tower records would afford evidence of that crime.

[40]

The
    appellants third argument is that the motion judge erred in concluding that
    the authorizing judge could have properly balanced the intrusiveness of the
    states conduct against societys interest in solving crimes. We see no merit
    in this argument. The motion judge correctly recognized that Ms. Devries
    evidence supported the request for records of text messages as well as cell
    phone calls. Moreover, the reasonableness of the request could properly be
    assessed based on the requested time frame and the number of cell phone towers from
    which records were sought. As the motion judge correctly observed, in
R. v.
    Mahmood
, 2011 ONCA 693, 107 OR (3d) 641, this court held that there is a
    reduced expectation of privacy in the type of records sought. The motion judge
    pointed out that the issuing justice is presumed to know that the cell tower
    records produced would interfere with the privacy rights of uninvolved third
    parties and to have weighed the competing privacy interests with the states
    interests in solving serious crimes. She found no evidence that the issuing
    justice balanced these interests unreasonably. We see no basis on which to
    interfere with the motion judges determination.

Disposition

[41]

Based
    on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G.T. Trotter J.A.





[1]
As noted at para. 61 of the motion judges reasons, Mr. Asselin saw one of the
    perpetrators with a cell phone that was sufficiently operational to reveal the
    time. He also reported that the perpetrators went out the back door of the
    store, having entered through the front.


