IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Giles,

 

2007 BCSC 1147

Date: 20070731
Docket: 23505
Registry: Vancouver

Regina

v.

David Francis Giles
David Roger Revell
Richard Andrew Rempel

PUBLICATION BAN

This Court Orders that the May 14, 2007 publication ban on “… any and all of the within proceedings …” is vacated and the following is ordered in its place:

1.         No person shall broadcast or publish any evidence, photos, or statements by the presiding judge or counsel, or other matters arising at the trial of R. v. Giles, Revell and Rempel (Vancouver Registry No. 23505) which directly or by necessary implication identify any of the accused in the following two prosecutions (the “Related Proceedings”):

a)         Vancouver Registry No. 23500-20 (currently before the Honourable Mr. Justice Romilly).

b)         Vancouver Registry No. 23501 (currently before the Honourable Mr. Justice Groberman).

2.         The Media may not have access to, or publish any of the contents of that intercepted private communication of January 20, 2005 which forms the basis of the allegations of extortion of the complainant, Glenn Louie, and the Media shall not publish any of the testimony given by J.J.V. at the trial of Giles, Revell and Rempel.

3.         No person shall broadcast or publish the expert evidence of Staff Sergeant Lemieux and Inspector Andrew Richards on the issue of whether the Hells Angels or East End Chapter of the Hells Angels is a criminal organization, or any statement or ruling of the Court on that issue arising at the trial of R. Giles, Revell and Rempel.

4.         No person shall broadcast to the public Intercepts 31 and 109 dated January 24, 2005 and June 14, 2005 respectively.

5.         This order is only in effect in the Province of British Columbia and will expire when a verdict is rendered in Indictment 23501.

6.         This order does not operate as a ban on publication of the Related Proceedings including identities of the accuseds in reports of the Related Proceedings, and this order does not derogate from any ban issued or to be issued in the Related Proceedings.

Before: The Honourable Madam Justice MacKenzie

Reasons for Judgment-Ruling No. 4 on BlackBerry Voir Dire

Counsel for the Crown:

M.M. Devlin
J.K. Torrance

Counsel for the Accused,
David Francis Giles:


R.S. Fowler

Counsel for the Accused,
David Roger Revell:

 


J.D. Jevning

Counsel for the Accused,
Richard Andrew Rempel:


J.W. Sherren

Date and Place of Trial/Hearing:

June 20, 22, 28, 29
and July 4, 6, 10 and 13, 2007

 

Vancouver, B.C.

Introduction

[1]                THE COURT:  Giles, Revell, and Rempel are charged on a three-count indictment with possession of cocaine for the purpose of trafficking and possession of cocaine for the purpose of trafficking for the benefit of, at the direction of, or in association with a criminal organization, to wit: the East End Chapter of the Hells Angels, contrary to s. 467.12(1) of the Criminal Code.  Revell and Rempel are also charged with trafficking in cocaine.

[2]                The charges arise from a lengthy and complex police investigation, “Investigative Project E Pandora”, into the activities of the East End Chapter of the Hells Angels (the “EEHA”).

[3]                All three accused challenge the admissibility of 164 e-mail messages stored on the memory chip of Rempel’s wireless handheld device (the “BlackBerry”) and retrieved “offsite” after the investigators seized the BlackBerry in a lawful search incidental to the arrest of Rempel.  The e-mails had been sent to Rempel from Revell.  The Crown seeks to tender them because they correspond to the sequence of events observed by the police on April 6, 2005, the day of Rempel’s arrest.  They assist in interpreting the police surveillance.

[4]                Giles and Revell concede they have no standing to argue an infringement of their rights under s. 8 of the Canadian Charter of Rights and Freedoms arising from the search of Rempel’s BlackBerry.  However, they argue that the use of this evidence against them at trial would infringe their rights to a fair trial under ss. 7 and 11(d) of the Charter (see R. v. Harrer, [1995] 3 S.C.R. 562), and would constitute an abuse of process.  They contend the police committed a serious criminal offence contrary to s. 184 of the Criminal Code by intercepting private communications without a wiretap authorization.  The defence characterize the extraction of the emails from the memory chip of the BlackBerry as an “intercept” as defined in s. 183 of the Code.  Thus, the accused seek the remedy under s. 24(1) of the Charter of exclusion of the e-mails from evidence.  Rempel too adopts this position.

[5]                Rempel also challenges the admissibility of the e-mails under s. 24(2) of the Charter based on an infringement of his s. 8 Charter right to be secure against unreasonable search and seizure.  He concedes the warrantless seizure of the BlackBerry device itself fell properly within the scope of the common law power of the police to search incidental to arrest.  However, he argues that the failure of the police to obtain a wiretap authorization permitting them to extract the e-mails found on the BlackBerry’s memory chip, and their failure to obtain a search warrant to seize other data described in the report of the police Technical Analysis Team (such as telephone numbers, addresses, PIN numbers and bank account numbers), violated Rempel’s s. 8 Charter right.

[6]                I have concluded that the admission into evidence of the 164 e-mails seized from Rempel’s BlackBerry would not infringe the rights of the three accused under ss. 7 and 11(d) of the Charter, would not be an abuse of the court’s process, and that the e-mails were not obtained in violation of Rempel’s s. 8 Charter rights.

[7]                I do not accept that the retrieval of the e-mails on the memory chip of the BlackBerry amounted to an “interception” within the meaning of Part VI of the Code so as to require a wiretap authorization.  There is a difference between intercepting messages and searching messages that have already arrived at their intended destination.

[8]                Nor do I accept that a search warrant was required to seize the e-mails or search the other data in the circumstances of this particular case.  Instead, I find that the extraction of the e-mails from the BlackBerry fell properly within the scope of the common law power to search incidental to arrest.  For the reasons that follow, the e-mails are admissible in evidence.

The Facts

[9]                The facts necessary to determine the issues are undisputed.

[10]            On April 6, 2005, during a long investigation, the police had reasonable and probable grounds to believe Rempel and Revell were trafficking in cocaine at the kilogram level, and arrested both for possession of cocaine for the purpose of trafficking.  They had reasonable grounds to believe that Rempel had just engaged in a drug transaction with one Basi who was arrested in possession of one kilogram of cocaine.

[11]            Rempel and Revell were driving separate vehicles when the police arrested them a few minutes apart.  The police searched each vehicle incidental to the arrests.  They seized Rempel’s BlackBerry device, a hand-held wireless computer, from the seat beside his driver’s seat.

[12]            On May 26, the police submitted the BlackBerry to the RCMP Technological Crime Branch (“TCB”) for examination to retrieve any data saved on it.  On May 30, the BlackBerry was sent to the TCB in Ottawa with instructions to examine it.  The report of the TCB in Ottawa discloses, under the heading “Purpose”, that:

The exhibit was seized in relation with the ongoing Project EPANDORA.  The device was to be examined for evidence of Score Sheet, Telephone numbers, E-Mail addresses, Memos, Calendar information, Saved digital communications, PIN numbers, Bank account numbers and passwords still residing within the device Memory.  Cst. Belley was joined by C/M Embury (another member of the Technical Analysis Team) because of the urgency and nature of the requested analysis.

[13]            The laboratory in Ottawa received the BlackBerry on June 1, and the primary examination occurred on June 6, 2005.  The examination resulted in the recovery of 164 e-mails exchanged between Rempel and Revell which were stored, or to use another term, “residing” on the memory of Rempel’s BlackBerry.  The Crown seeks to tender them in evidence as relevant to the actions of the accused as observed by the police on April 6, 2005.

[14]            The defence explained, with the help of material before the court in exhibit 18, how messages flow between BlackBerry devices via the BES or BlackBerry Enterprise System and the fact that double encryption ensures a greater degree of security.  Defence counsel argued that this double encryption feature, together with the capacity of the BlackBerry to store huge amounts of information, including very personal information, means there is a very high expectation of informational privacy in the contents of this BlackBerry.  This BlackBerry was password protected, even to access its menu.

[15]            The technical analysts, Daniel Embury and Cpl. Guy Belley, described in detail in their “Willsay” statement their analysis of the BlackBerry’s contents.  They inserted a fresh battery, “booted up” the BlackBerry, and discovered that a password was required to access its contents.  They performed the data extraction in their electronics laboratory.  Using lab equipment, they extracted the password from the BlackBerry.  They booted up the device again, entered the password at the prompt, and accessed the menu screen that allowed the user access to the messages, address book, memos and various other directories and functions.  Without the password, it would not be possible to access the contents of the menu screen.

[16]            The device was then connected to the lab computer using a standard USB cable.  The lab computer was loaded with BlackBerry manager software which, when a password-protected BlackBerry is connected to the computer, displays a message window that requires the user to enter the password.  The password was entered at the prompt.  The data backup was stored in a BlackBerry proprietary format known as an .ipd file by the BB Desktop Manager software, and active data for the exhibit was saved.

[17]            The active data backup files were converted to a readable report format using specialized in-house software called BlackBerry Backup Dump. The results were 164 e-mails, 5 address book contacts, and 9 memos contained within the active data backup file.

[18]            An exact copy of the memory of the device, called an image, was made using lab equipment.  The file was saved for future analysis to recover deleted data, including deleted e-mail messages.  Depending on the amount of usage of the device, varying amounts of deleted data may be recovered from the memory image.  The technicians were able to download the BlackBerry contents to their computer.

[19]            Counsel referred to the capacity of the BlackBerry to store large amounts of information.  Such devices can hold the equivalent of about 10,000 messages, or 15,000 phone numbers.  This particular BlackBerry, a model 7280, had 16 megabytes of memory.  It has the capacity to store thousands of messages and hundreds of address book contacts.

1.         Did the police commit an offence by retrieving the e-mails stored on the BlackBerry without first obtaining a wiretap authorization?

[20]            All three accused contend that their ss. 7 and 11(d) Charter rights to a fair trial would be infringed, and that it would be an abuse of process, to admit the e-mail messages into evidence.  Accordingly, they argue the e-mails ought to be excluded under s. 24(1) of the Charter or at common law, citing R. v. Hape, 2007 SCC 26.  This argument is based on the premise that the police illegally obtained the e-mails by committing a serious offence contrary to s. 184 (1) of the Criminal Code.  It flows from the reasoning that the retrieval of the e-mails from the BlackBerry’s memory constituted an “interception” of private communications within the meaning of Part VI of the Code.

[21]            The Crown responds that the e-mails are not “interceptions” and the police cannot obtain a wiretap authorization for communications that have already occurred.  Nothing was “intercepted” in the sense of having been acquired in transit.  Rather, the Crown says the material was merely “stored” on the BlackBerry, akin to information stored or residing in a daytimer or diary.

[22]            The Crown submits the police could not have obtained a wiretap authorization because the messages had been sent, received, and electronically stored.  The application for a wiretap authorization would therefore not have satisfied the test of “investigative necessity” under s. 186(1)(b) of the Code because a search warrant could be obtained to search the BlackBerry and retrieve the e-mails.  Here, the police would have required a search warrant had they not seized the BlackBerry incident to a lawful arrest.

[23]            I agree with the Crown.

[24]            Defence counsel rely upon s. 184 of the Code, and certain definitions in s.183 for their argument.

[25]            Section 184(1) makes it an offence for anyone to intercept private communications unless they come within the exceptions in s. 184(2).  Section 184 provides:

(1)        Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2)        Subsection (1) does not apply to

(a)  a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b)  a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c)  a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication, …

[26]            The interpretation of s. 184 requires that certain definitions be considered, including that of the verb, “intercept”.  It is defined in s. 183 as follows:

“Intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.

[27]            Counsel for Rempel suggests that “intercept” should be given a broad and inclusive interpretation.  Noting that s. 183 includes “acquire” as part of the definition of “intercept”, counsel would equate “acquire” with “obtain” and suggests that the police in this case obtained private communications.  Counsel says that the purpose of the Code provisions is to limit the use of technology to invade privacy, and that the “when or where” of such invasions is not relevant.  Counsel says this interpretation was made by Clement J.A. in R. v. McQueen (1975), 25 C.C.C. (2d) 262 (Alta. S.C. (A.D.)), in reasons which were substantially adopted in this court by Shaw J. in R. v. Singh (1998), 127 C.C.C. (3d) 429 (this citation refers to the Court of Appeal decision affirming Shaw J.’s judgment, which is appended to the Court of Appeal’s reasons).

[28]            Counsel for Giles supplements these arguments by noting that the word “intercept” has not been considered in the context of a police officer downloading messages from a BlackBerry device.  Counsel notes that “intercept” has been considered in the context of overheard conversations (R. v. Watson (1976), 31 C.C.C. (2d) 245 (Ont. Co. Ct.); R. v. Wilson (1982), 38 O.R. (2d) 240 (Prov. Ct.)), and where the originator unwittingly talks with the police, either by phone (R. v. McQueen, R. v. Bengert (1978), 47 C.C.C. (2d) 457 (B.C.S.C.), R. v. Singh) or in person in a jail cell (R. v. Grant (1979), 48 C.C.C. (2d) 504 (B.C. Co. Ct.).  Counsel submits the definition of the term “intercept” does not specify or limit the means by which the communication is acquired, other than by the use of a “device”, and that there is no temporal limit, or requirement that the interception occur contemporaneously with the sending of the communication.

Discussion

[29]            Defence counsel made a strenuous argument in favour of their interpretation of the word “intercept”.  However, their reasoning relies only on one part of the literal definition in Part VI of the Code.

[30]            As observed recently by the British Columbia Court of Appeal in R. v. Terezakis, 2007 BCCA 384 at para. 8:

The courts have adopted a comprehensive statutory construction approach known as the “modern principle”.  R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 highlights its applicability to the offence-creating provisions of the Criminal Code.  The approach is succinctly described in Re Application Under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248 at para. 34, 2004 SCC 42:

The modern principle of statutory interpretation requires that the words of the legislation be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.  This is the prevailing and preferred approach to statutory interpretation: see, e.g., Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 (S.C.C.), at para. 33; Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 26.  The modern approach recognizes the multi-faceted nature of statutory interpretation.  Textual considerations must be read in concert with legislative intent and established legal norms.

[31]            In McQueen, the majority analyzed the meaning of “intercept” in s. 178.1 of the Code (now s. 183), and considered Parliament’s intentions in enacting the provisions of what is now Part VI of the Code.  After setting out the definition of “intercept” in the Shorter Oxford English Dictionary, 3rd ed., McDermid J.A., for the majority, noted at 265 that:

In, at least, its primary sense the word intercept suggests that there must be an interference between the place of origination and the place of destination of the communication. If Parliament intended the word intercept to be used in this primary sense, then there was no interception here.

The legislation is aimed at preventing a third party from intercepting the private communication between two people.

[W]hat the Act is directed at is the interception of a communication between a sender and a receiver either of whom may consent to the interception[.]

[Emphasis added.]

[32]            Clement J.A. agreed with the majority, but added a further reason which he said supported the decision of McDermid J.A.  Clement J.A. concluded that s. 175.16(1) of the Criminal Code (now s. 184) does not apply in cases where the interception has been made without use of a “device”.  Clement J.A. went on to say that it should be recognized that “intercept” is one of a trilogy of statutory definitions that are associated together: that “intercept” itself is a word employed in the definition of designated devices, and as well in the definition of “private communication”.

[33]            In R. v. Finlay (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), leave to appeal to S.C.C. refused, [1986] 1 S.C.R. ix, Martin J.A. noted that there were substantial differences between judicial authorizations for conventional search warrants and judicial authorizations to intercept private communications.  At 63, he said:

A search warrant authorizes the search of specified premises for specific things already in existence.  The person executing a search warrant will normally know whether a particular item found on the searched premises comes within the scope of the warrant.  A search warrant authorizes a single entry of the premises to be searched, and if the items sought are not found, an application for a second search warrant must be made in order to make a further entry.  In contrast, an authorization to intercept private conversations authorizes the interception of conversations which have not yet taken place.  The interception may occur at any time during the period specified in the authorization.  It will often be the case that the listener will not be able to determine whether the intercepted conversation constitutes the evidence sought until after he has heard it in its entirety in the context of other conversations similarly overheard[.]

[Emphasis added.]

[34]            There is a fundamental difference between surreptitiously intercepting and recording messages and simply searching stored messages, or messages residing on a BlackBerry’s memory.  The electronically stored e-mails in this case had been sent, received, and resided at their destination.  The messages arrived at their intended destination without interference by a third person using a device.  They have not been “intercepted” as that word has been interpreted by the courts.

[35]            The words quoted by counsel from McQueen do not support counsel’s argument on Parliamentary intent.  Counsel say that the following passage indicates that Parliament intended to limit the use of specialized technologies in invading privacy:

Part IV.1 of the Criminal Code was enacted as a part of the Protection of Privacy Act, 1973-74 (Can.), c. 50. It was introduced to the House of Commons by Bill C-176 which was prefaced by this explanatory note in so far as it relates to amendments to the Criminal Code:

The purposes of this Bill are

(a)        by amendments to the Criminal Code, to create offences related to

(i)         the interception of private communications by the use of any device or apparatus defined to be an electromagnetic, acoustic, mechanical or other device,

(ii)        the disclosure of private communications intercepted by the use of any such device, and

(iii)       the possession, sale or purchase of any such device or apparatus or any component thereof the design of which renders it primarily useful for surreptitious interception of private communications;

and to establish rules regarding the admissibility of evidence obtained by the interception of private communications[.]

[36]            However, counsel fail to note that this definition refers to “intercepted” and “interceptions”.  McQueen decided that the Code did not apply to interceptions made without a device.  This means that use of a device is a necessary part of an interception as defined in the Code.  It does not mean that use of a device is sufficient to constitute an interception.

[37]            Second, counsel seek to expand the meaning of “intercept” to include whenever something is acquired or obtained, and to strip away the temporal component of “intercept”.  This argument is illogical.  The Concise Oxford English Dictionary, 11th ed. (Oxford: Oxford University Press, 2004) defines “intercept”, when used as a verb, as follows: “obstruct and prevent from continuing to a destination”.  The dictionary also ascribes the word’s origin to Middle English, and further to the Latin intercipere, meaning to “catch between”.  Based on this definition and on common experience, I am satisfied that the word in its ordinary sense connotes something occurring while something passes from one point to another.  To support this interpretation, I note that in McQueen, McDermid J.A., for the majority, wrote the following at 265:

In, at least, its primary sense the word intercept suggests that there must be an interference between the place of origination and the place of destination of the communication.

[Emphasis added.]

And, at 266:

The definition given to private communication by the Act, as well as the dictionary definition, supports the conclusion that what the Act is directed at is the interception of a communication between a sender and a receiver either of whom may consent to the interception under s. 178.11(1) [now s. 184(1)] or consent to its admission in evidence under s. 178.16(1)(b) [since repealed].

[Emphasis added.]

[38]            The word “intercept” necessarily implies contemporaneity with the communication itself.  Other words, such as “obtain” or “acquire”, do not connote such contemporaneity.  Parliament clearly could have used either of these words alone if the temporal component of intercept was not important; indeed, “acquire” is itself used in the statutory definition of “intercept”.  This use helps to shade the interpretation of “intercept”, but does not mean that “acquire” should be substituted for “intercept”.

[39]            Counsel submit that in enacting what is now Part VI of the Code, Parliament intended to limit how new technologies could be used to invade privacy.  Counsel suggest that the “when or where” of such invasions is not relevant; that Parliament was concerned primarily with the use of “unnatural means”.  Counsel say this was the interpretation of Clement J.A. in McQueen.  I cannot agree.  That decision does not support such a general and expansive description of Parliamentary intent.

[40]            Moreover, such an interpretation would be illogical, given the wording of the legislation itself.  Even if I agreed with counsel’s interpretation of Parliamentary intent, which I do not, that intent should be used only to buttress and supplement a contextual reading of legislation.  Parliamentary intent should not be used to undermine the meaning of words read in their grammatical and ordinary sense, situated in their entire context.

[41]            Defence counsel argue that their interpretation should be adopted in light of significant developments in technology.  Before turning to the changes in technology, it is helpful to reflect on other cases that have discussed the ambit and application of the Code provisions in question here.

[42]            In Singh, the trial judge quoted extensively from the opinion of La Forest J. in R. v. Duarte, [1990] 1 S.C.R. 30.  In Duarte, La Forest J. discussed the situation where state agents make permanent electronic recordings of our private communications.  At 48 he wrote:

[T]he law recognizes that we inherently have to bear the risk of the “tattletale” but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.

[43]            Since Duarte, the explosion of e-mail and other text-based modes of instantaneous communication has meant that much of our communication that was once exclusively verbal is now by electronic text.  In R. v. Yahoo! Canada Co. (2004), 191 C.C.C. (3d) 122 (Ont. Sup. Ct.), the court allowed in part an application to set aside an order confirming a wiretap authorization.  The authorization provided for the interception of e-mails by ordering the service provider to re-route them from their intended recipient to a police e-mail account.  I refer to this case only to emphasize that an interception connotes action contemporaneous with communication, even when dealing with new technologies and new forms of communication.  It is an acquisition in transit by use of a device.

[44]            Certainly, changing technology imposes new challenges and may necessitate a rebalancing between the state’s duty and the individual’s rights.  However, the definition of “intercept” under s. 183 is not the place for this rebalancing now.  If Parliament wishes to change the scope of the provisions in light of new technologies, it is free to do so.

[45]            Relying on a contextual reading of the provisions in their grammatical and ordinary sense, I find that the term “intercept” necessarily requires that a communication be passing from a source to a destination.  Accordingly, I find that acquiring the communications contained on the BlackBerry was not an “interception” as defined in s. 183.  The police did not therefore violate s. 184.  Counsel’s arguments that the police committed an illegal act must fail.  Absent such an illegal act, there is nothing left to ground counsel’s submissions on abuse of process or infringement of ss. 7 and 11(d).

[46]            The particular threat to privacy posed by interception of private communications is different from the threat posed by the seizure of existing communications.  Section 183 should not apply to the latter.  However, individuals are not unprotected from state seizure.  Indeed, s. 8 of the Charter, to which I now turn, provides exactly that protection.

2.         Did the police infringe Rempel’s s. 8 Charter rights by their retrieval of the e-mails stored or residing on his BlackBerry after it was seized in a search incidental to his arrest?

[47]            Counsel for Rempel argues that the police infringed Rempel’s s. 8 Charter right by the warrantless search of the BlackBerry.  He relies on the presumption that a warrantless search is unreasonable, and can only be rebutted if the Crown demonstrates that the search was authorized by law, that the law itself is reasonable, and that the search was reasonable in the manner of its execution: see R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Caslake, [1998] 1 S.C.R. 51.  Counsel contends that the common law exception of search incidental to arrest did not authorize the warrantless extraction and examination of the contents of the electronic storage media such as the wireless communication device here.  He argues that the exception is subject to limitations which the court must impose to protect an individual’s right to privacy.  As examples, he points to the limits on the seizure of bodily samples (R. v. Stillman), the search of a dwelling house except in exigent circumstances (R. v. Godoy, [1999] 1 S.C.R. 311), and a strip search of an arrested person being subject to additional reasonable and probable grounds or exigent circumstances (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679).  Defence counsel invites this court to recognize a “BlackBerry limitation” to the search incidental to arrest.

[48]            Counsel characterizes the search of the BlackBerry, an electronic storage device, as an improper expansion of the common law power, suggesting that it was feasible for police to obtain prior judicial authorization by way of a search warrant (I have already disposed of the argument that a wiretap authorization was required to seize the e-mails).  He submits that such devices can today act as a repository for a universe of personal information, including private communications in which there exists a high objectively reasonable expectation of privacy of the “core biographical” sort described in R. v. Plant, [1993] 3 S.C.R. 281, and R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432.

[49]            Counsel says the capacity of electronic storage media to store vast quantities of information creates the potential for large-scale invasions of privacy.  Also, certain features mean the user has a subjectively high expectation of privacy in the information stored in the BlackBerry.  These features include password protection that was only defeated in this case by lab personnel with specialized training, using technology not available to the general public.  Also, when used for e-mail communications, the dedicated BlackBerry Enterprise Service affords another level of encryption and security to prevent acquisition in transit, unlike ordinary e-mail.

[50]            The time and distance from the arrest to the search, and the fact it was conducted by persons not involved with the arrest is significant, according to counsel, as to whether the search is incidental to the arrest.  Counsel points out that the arresting officers were not involved in searching the BlackBerry, which was conducted in Ottawa two months after the arrest in Kelowna.  Counsel suggests that there was ample time for the police to seek a search warrant.  He submits this search strains any conception of search incident to arrest as being a pragmatic and exigent response to an arrest which is the purpose for the exception.

[51]            Finally, defence counsel suggests that obtaining prior judicial authorization for the search of the BlackBerry’s contents would allow for the exercise of judicial discretion to impose minimization terms and conditions “so that only files identifiable as appropriately within the scope of the warrant [or authorization] and related to the target offence can be accessed by the police,” (see Alan D. Gold, “Applying Section 8 in the Digital World: Seizures and Searches”, (Prepared for the 7th annual Six-Minute Criminal Defence Lawyer, Law Society of Upper Canada, 2007), Alan D. Gold Collection of Criminal Law Articles, at para. 12).  Here, counsel says the exhaustive examination of the BlackBerry’s memory chip and SIM card without concern for the user’s privacy interest amounted to “carte blanche”.  He says it is impossible to know how a judicial officer might have struck a balance to select files according to type, recency, or subject matter.

[52]            In summary, defence counsel argues that this court ought not to “expand” the common law power of search incidental to lawful arrest to embrace the search here.  He contends the search implicated high informational privacy interests, and the interest of law enforcement in gaining control over the arrest scene and securing and preserving evidence was complete upon the seizure of the device, or shortly thereafter.  Counsel maintains that only unjustified expediency favoured the warrantless examination two months after seizure of the device.  Since it was feasible to seek prior judicial authorization in the circumstances, counsel submits that properly balancing privacy issues against the concerns of law enforcement means that prior authorization was a pre-condition to a reasonable search.

Discussion

[53]            Defence counsel agree that the BlackBerry device itself was properly seized during a search of Rempel’s vehicle that was incidental to his arrest.  The law is settled that a warrantless search of a vehicle may be a valid search incidental to arrest if it is conducted for a valid purpose, such as to discover evidence of the offence, and if there is subjectively some reason related to the arrest for conducting the search when it was carried out and the reason was objectively reasonable: R. v. Parchment, 2007 BCCA 326; Caslake at para. 19.

[54]            I disagree with defence counsel that the police exceeded the scope of the common law power to search incidental to arrest when they searched the BlackBerry and retrieved its 164 e-mails.  The seizure of the BlackBerry device itself was meaningless without the ability to examine its contents.  Having lawfully arrested Rempel for drug trafficking, the police were authorized to search him and his immediate surroundings, in this case his vehicle (see Parchment at para. 43; Cloutier v. Langlois, [1990] 1 S.C.R. 158 at 180) and, since the justification for the search was to find evidence, the police could seize items on which there was some reasonable prospect of securing evidence of the offence for which the accused was being arrested: see Caslake at para. 22.

[55]            Here, Rempel was lawfully arrested on grounds that he had just been involved in a very substantial cocaine transaction. The seizure, the examination of the contents of his BlackBerry, and the retrieval of the e-mails was truly incidental to arrest.  According to the report of the TCB analysis team, the police were looking for evidence of “score sheets”, telephone numbers, e-mail addresses, memos, calendar information, saved digital communications, PIN numbers, bank account numbers and passwords still residing within the device memory.  The term “score sheets” refer to a form of accounting used to keep track of drug purchases, orders and accounts receivable.  All these items, for which the investigators had directed the TCB to search, were clearly reasonably connected to the arrest for a serious drug offence.  These are not items which have nothing to do with the offence of large scale drug trafficking.

[56]            The search was akin to looking inside a logbook, diary, or notebook found in the same circumstances.  The BlackBerry device was meaningless without its contents.  There was a reasonable basis for doing what the analysts did at the request of the police.  I also observe that most of the 164 e-mails the Crown seeks to tender in evidence were from April 6, 2005, the date of Rempel’s arrest.  A few were from the day before.

[57]            Also, the analysis and search, completed on June 6, 2005, occurred within a reasonable time after the arrest in the circumstances.  The police had to send the BlackBerry from Kelowna to the TCB in Ottawa for examination.  Neither the two months between the arrest and analysis, nor the distance were unreasonable in the circumstances.  For example, reasonable requirements of time and distance for the forensic analysis of blood on clothing seized in a search incident to arrest, for DNA information is routine: see R. v. Holtam, 2002 BCCA 339, 165 C.C.C. (3d) 502 at para. 29.  Once an item is seized for use in a criminal investigation, the police are entitled to subject it to technical analysis to determine its evidentiary significance.  This often requires sending the item “off-site” to qualified experts.  Neither the time nor the distance between the arrest and the analysis mean that the search of the BlackBerry fell outside the scope of the common law power to search incidental to this lawful arrest.

[58]            In R. v. Weir, 2001 ABCA 181, 156 C.C.C. (3d) 188, the accused was charged with possession of child pornography.  During a routine repair of his electronic mailbox, the internet service provider discovered an attachment to an e-mail that appeared to contain child pornography.  The service provider reported this to the police and forwarded to them a copy of the e-mail message, with the accused’s billing address.  After further investigation, the police obtained a search warrant and seized the central processing unit (CPU) of the accused’s computer.  Data on the computer was found to contain child pornography.  After an unsuccessful challenge to the validity of the search and the search warrant, the accused was convicted.

[59]            The court held that the extraction of the data from the CPU and diskettes, which were properly seized under a search warrant, could occur at a later date: see para.18.  The accused had argued that subsequent amendments to the Criminal Code in 1997 allowing for on-site data collection precluded off-site data collection.  The court found that argument untenable, saying that as long as the CPU was seized properly, the information contained in it could be extracted at a later date.

[60]            Significantly, the court in Weir adopted the analogy used by the trial judge that this was not unlike the seizure of blood in which police do not want the blood, but rather, the information that the blood can provide.  This reasoning applies to the present case.

[61]            Another helpful case is R. v. Lefave, [2003] O.T.C. 872 (Ont. Sup. Ct.).  In that case, the police received a complaint that the accused had said on an internet chat line that he wanted to rape his seven year old daughter and kill himself.  The police searched the accused’s apartment, seized his laptop computer, and arrested him.  The laptop was delivered to the police technical crimes laboratory, where the laptop’s hard drive was searched.  Dunn J. found that the laptop was seized incidental to a lawful arrest, and at para. 30, that “examination of the data in the computer was a reasonable procedure to determine if there was any evidence on it to connect the accused with the crime in question”.  Accordingly, there was no violation of s. 8.

[62]            I find the reasoning in Weir and Lefave applies to the circumstances here.  Because the BlackBerry was properly seized incidental to the arrest, a common law exception to the requirement for a search warrant, it could also be searched.  Otherwise, the seizure of the BlackBerry would be meaningless.

[63]            While I accept that this particular BlackBerry’s password protection and the double encryption characteristic mean that there is an objectively reasonable expectation of privacy in the information contained in the BlackBerry, it is not different in nature from what might be disclosed by searching a notebook, a briefcase or a purse found in the same circumstances.  The capacity of this BlackBerry to potentially store volumes of information does not, in my view, change the character of the search from being lawful as incident to the arrest, into a search that required a warrant.  Volume of information is not as relevant as the nature of the information, and in other situations, items seized incidental to arrest are subject to the same degree of privacy interest.

[64]            In addition, I note that the subsequent police search of the BlackBerry was not in the nature of a “fishing expedition”.  Based on the reason for the lawful arrest, the police requested their technical analysts to search for particular types of data reasonably related to the particular offence, such as the score sheets and telephone numbers.

[65]            In my view, the informational privacy involved in this case does not mean that the police must have dual authority to search: the common law power to seize the device itself, and superimposed on that, a subsequent search warrant to seize the contents of the BlackBerry.  The search was not an affront to personal dignity or highly intrusive in the same sense as the extraction of bodily fluids as in Stillman, or a strip search as in Golden.  Parliament has recognized the highly intrusive nature of the seizure of bodily substances by requiring they be subject to specific search warrants, but not the information here.

[66]            In Tessling, the Supreme Court provided a very useful discussion and overview of the scope of the privacy protected by s.8.  The Court engaged in a detailed review of the interests involved in that case, followed by a careful balancing of those interests.  I have turned my attention to the factors and the analytical framework employed in Tessling, and my comments about the nature of the information in this case and the privacy interests should be read in light of those factors.

[67]            Briefly, while the information contained on a BlackBerry may be of a highly personal nature, I am also persuaded that, in the circumstances of this case, the BlackBerry was highly relevant to the police investigation.  The only way in which the device could be relevant, though, is if the police could use the data contained on the BlackBerry.  Given that the police were interested in material relevant to the offence, I am satisfied that the search was truly incidental to the arrest and not a violation of Rempel’s s. 8 Charter right.

[68]            I do not find persuasive the argument that the use of technology, when searching for particular e-mails and other data, was such a dramatic and unreasonable invasion of privacy that the search here fell outside the scope of a search incidental to the arrest.  This search was not an “affront to human dignity” because it was not invasive as is the taking of bodily samples.  Nor was it a search of the home, a place which is highly protected.  It was a search of a hand-held computer by use of BlackBerry software.  This feature did not change the character of the search from one incidental to a lawful arrest for large scale cocaine trafficking, a very serious offence to which the items searched were logically connected, to an unlawful act by the police.  There was some reasonable prospect of securing evidence of the offence for which the accused was being arrested (see Caslake at para. 22).

[69]            Defence counsel suggests that an important protection in requiring the police to seek a search warrant is that a neutral, independent judicial officer would be able to impose terms to minimize the scope of the search, and prevent the “over-seizure” that is a feature of the use of technology.  However, counsel did not suggest any such reasonable, workable, or practical conditions.  I do not know how only files related to the target offence could be identified.  Although the police may have viewed data unrelated to their search parameters while searching the BlackBerry, I cannot see that there is any other way to determine what material is relevant to the arrest.  The investigators would not be able to recognize some of the information sought until they saw it.

[70]            Counsel suggested a search warrant could contain a temporal limit, but that could be an unreasonable limit in these circumstances.  Those who are involved in the traffic of drugs typically resort to pseudonyms, and coded or oblique language when they communicate.  Score sheets, telephone numbers, and the sorts of information connected to drug trafficking are not readily identifiable so that the search could, practically, be limited in the manner suggested.

[71]            Defence counsel’s general suggestion of minimization terms without concrete workable examples would simply impose an unreasonable burden on investigators in this particular case who have the common law authority to search incidental to a lawful arrest.  The reasonable limits on that power have been articulated in cases such as Caslake: the search must be truly incidental to the arrest in the sense of being logically connected to it.  I find in this case that requirement was met, and additional authority to search was not required.  The search was conducted to discover and preserve evidence connected with the arrest.  It was not conducted in an abusive manner.

[72]            Having lawfully seized the BlackBerry itself, a subsequent search warrant was not required to then retrieve the data stored or residing upon its memory, and to transform that data, being the e-mail messages, into a form suitable for use as evidence.  My view is supported by s. 487(2.1) of the Criminal Code which provides:

A person authorized under this section to search a computer system in a building or place for data may

(a)  use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

(b)  reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;

(c)  seize the print-out or other output for examination or copying; and

(d)  use or cause to be used any copying equipment at the place to make copies of the data.

[73]            Thus, a search warrant issued under s. 487(2.1) of the Code can authorize the search of a computer system in a building or place for data and the reproduction of any data in the form of a print-out or other intelligible output.

Conclusion

[74]            In light of my ruling that the search of the BlackBerry was valid under the common law power to search incidental to arrest, no question of admission of the contents of the BlackBerry memory chip arises.  The police were entitled to reproduce the e-mails in the form of a print-out to use as evidence.  The e-mails were not obtained by infringing Rempel’s s. 8 Charter rights.  It follows that I need not consider s. 24(2) of the Charter.

“The Honourable Madam Justice MacKenzie”