Court of Appeal Decision of the Week

Production Orders and Part VI of the Criminal Code; Not Living in the Same Building as the Police Officer Investigating Your Matter

Case: R. v. Webster, 2015 BCCA 286

Keywords: Possession of Cocaine; Trafficking; R. v. TELUS Communications; Production Order; Text Messages; Warrantless Arrest; Warrantless Entry; Hearsay; R. v. Baldree

Synopsis: RCMP arrest a woman for a ‘dial-a-dope’ trafficking offence. A search of her cell phone reveals two telephone numbers for a person referred to as ‘Dru Boss Man’.

It is common for drug traffickers to have multiple telephones (one for business and one for personal matters) and the police believe ‘Dru Boss Man’ is the woman’s drug supplier.

From subscriber information, it is determined these numbers connect to an ‘Al Smith’ and ‘Andrew P. Webster’. Pursuant to a production order, police obtain a quantity of historical text messages between the woman arrested for ‘dial-a-dope’ trafficking and the telephone number associated with ‘Al Smith’ (which is assumed to be a false name used for drug trafficking).

During the course of their investigation, police also receive the specific address of the appellant from a condominium building manager. The appellant is then observed in an apparent drug transaction and subsequently arrested in the elevator of his condominium complex (in possession of more drugs). The police secure his apartment pending the arrival of a search warrant and, once inside, find evidence of drug trafficking, as follows:

a) Approximately 330 grams (12 ounces) of cocaine, located in a living room safe;

b) Two scales, also located in the living room safe;

c) A third scale, and collection of ‘score sheets’ located in the kitchen;

d) An envelope containing $4,500.00 cash located in a second safe;

e) Identification in the appellant’s name and $290.00 cash located in a basket in the kitchen cupboard; and

f) A tenancy agreement and other documents in the appellant’s name located in the second bedroom.

Webster is convicted of possession of cocaine for the purposes.

He advances six grounds of appeal (all of which are dismissed by the British Columbia Court of Appeal):

1) Police had obtained his text messages unlawfully (pursuant to R. v. TELUS Communications);

2) Police improperly obtained information from his condominium building manager;

3) Police improperly followed the appellant into his condominium complex;

4) His warrantless arrest in the elevator (common areas of the condominium);

5) The warrantless entry into his apartment; and

6) That the trial judge refused to reopen the trial to consider the implications of R. v. Baldree.

Importance:

  1. The Production Order: Historical Text Messages

The controversy in Webster stems from the interaction of the general warrant provisions at Section 487.01(1)(c) and Part VI of the Criminal Code of Canada as they apply to text messages stored on a carrier’s server.

For Chiasson J.A., TELUS (Supreme Court decision on point) does not apply to the facts of this case. Unlike the situation in TELUS, the production order used to obtain Mr. Webster’s text messages here was deemed to be appropriate. The reason is simple: in TELUS, the authorization sought was for prospective production – which is quite distinct (according to the British Columbia Court of Appeal) from historical text messages stored by the TELUS company.

This decision may capture the attention of the Supreme Court of Canada as it draws attention to a major gap in the case law – few courts have considered the application of TELUS to historical text messages and, where they have considered the matter, there is disagreement between them (R. v. Belcourt, 2015 BCCA 126, R. v. Carty, 2014 ONSC 212, and R. v. Frank, 2014 ONSC 2853 on one side of the debate, R. v. Croft, 2013 ABQB 640 on the other).

Let’s examine the controversy in further detail:

The language of Section 487.01(1) suggests that the authority to issue a general warrant is conditional: the word ‘if’ precedes subsection (c) which reads: “there is no other provision in this or any other Act of Parliament that would provide a warrant…”

In other words, where authorization under Part VI (another provision of the Code) is the appropriate course, a warrant pursuant to the general warrant provisions is invalid.

Pursuant to Section 184(1) of the Code (contained in Part VI), the interception of private communications is specifically made unlawful in the absence of proper authorization.

What does ‘intercept’ mean anyway? At Section 183, ‘intercept’ is defined to mean “listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”.

For Moldaver J. (concurring judgment) in TELUS, the prospective investigative techniques used by the police were ‘substantively equivalent’ to an intercept.

For the majority in TELUS, the argument revolves around the meaning of the word ‘interception’. Since ‘interception’ applied to the acquisition and recording of prospective text messages, Part VI ought to have applied. Therefore, the general warrant was invalid and the Crown lost.

In Webster, the British Columbia Court of Appeal followed its earlier decision in Belcourt; interpreting ‘interception’ in such a way that it could not apply to historical text messages recorded in the TELUS database.

In Belcourt, Madam Justice Kirkpatrick found that Part VI was crafted to circumvent the possibility of ‘fishing expeditions’ – effectively limiting the extent to which police may cast their nets between texter and textee, “…it is inherent in the nature of Part VI authorization that the investigative technique to be utilized by the police is prospective, which requires a distinct form of judicial authorization in comparison to other search warrants”.

In Webster, Chiasson J.A. followed the same reasoning to reach a similar conclusion – it would be inappropriate to apply Part VI to the present case. As such, the general warrant was valid and the defence lost.

  1. Information from the Building Manager

Serendipitously, the Appellant and the lead police investigator on the case lived in the same building. During the course of the investigation, the lead police investigator (who had intimate knowledge of the building and its operations naturally) requested the building manager provide a copy of or allow him to see the Appellant’s ‘Notice of Tenant’s Responsibilities’ (Form K Notice). This provided confirmation of the Appellant’s address and telephone number.

The British Columbia Court of Appeal held the fact that the building manager complied with the lead police investigator’s request for information did not make him an agent of the state. Furthermore, Mr. Webster had only a limited expectation of privacy – since the information was accessible under the Strata Property Act, S.B.C. 1998, c. 43 anyway.

  1. Common Areas of the Building and Privacy

The Appellant argued that his Section 8 rights were violated when police entered the common areas of his building and followed him without a warrant. The British Columbia Court of Appeal disagreed, adopting the finding of the trial judge that: “common areas of this particular residential complex were fairly accessible to the public…” – accordingly, Mr. Webster did not have a reasonable expectation of privacy in the common areas of his building. The evidence at trial was that members of the public (including tradespeople) generally had access to these areas of the condominium. The Court did not accede to this ground of appeal.

  1. Warrantless Arrest and Exigent Circumstances Justifying Entry to the Appellant’s Apartment

The Appellant contended that, in any event, police should be required first to obtain a Feeney warrant; pursuant to Section 529 of the Code, in order to affect his arrest inside the building (Mr. Webster was arrested in the elevator). Once again, the Court found that the common areas of a building did not qualify as being part of Mr. Webster’s ‘dwelling house’ – as they were generally accessible by the public.

Section 529.3 of the Code and Section 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, C.19 specifically authorize police to enter premises without a warrant, but only if ‘exigent circumstances’ make it impractical to obtain one.

For Chiasson J.A., the police were justified in entering Mr. Webster’s apartment without a warrant – being concerned that his girlfriend might dispose of any evidence inside. The British Columbia Court of Appeal found that, as the police faced an ‘active, unfolding crime’, their actions were appropriate (note: despite removing the Appellant’s girlfriend, they did not conduct a search of Mr. Webster’s apartment until after they obtained a warrant).

  1. The Implications of R. v. Baldree

Baldree is a hearsay case. Why is that relevant here? Text messages obtained pursuant to the production order (discussed above) were the foundation of an expert opinion used to convict Mr. Webster. In Baldree the majority of the Supreme Court of Canada (led by Fish J.) determined that an implied assertion, based upon a drug-related call on a cell phone and tendered for the truth of its contents was subject to the exclusionary hearsay rule.

In Baldree, a caller telephoned the Appellant after he had been arrested to arrange for a drug delivery. No effort was made to find and interview the anonymous drug caller – furthermore, this individual was not called as a witness. At trial, a police officer’s testimony about the contents of the call was admitted for its truth – despite the absence of any contemporaneous opportunity to cross-examine the declarant (the anonymous drug caller).

Although the majority of the Supreme Court of Canada granted Mr. Baldree’s appeal and ordered a new trial, Fish J. confirmed, at paragraph 70 of the decision, that hearsay statements of this kind may be admissible if a principled analysis shows that they meet the test for necessity and reliability, “…I take care not to be understood to have proposed a categorical rule for drug purchase calls. Although the call at issue here does not withstand scrutiny under the principled approach, this need not always be the case”.

For Chiasson J.A., the expert at trial did not use the text messages (between Mr. Webster and the woman arrested earlier for dial-a-dope trafficking offences) for the truth of their contents – rather for the fact that the statements were made.

Although the trial judge did not clearly distinguish between admissible hearsay and non-hearsay, Chiasson J.A. found that reopening the case would “not have altered the fact that the appellant was seen undertaking what appeared to be a drug transaction and was arrested moments later in the possession of a quantity of drugs”. Unlike Mr. Baldree, the Appellant in this case not convicted on the basis of circumstantial evidence.

Concluding Thoughts:

Few courts have considered the application of TELUS to historical text messages. Webster serves as an illustration of the current controversy at the intersection of criminal law and modern communications technology. Finally, it must be said that Mr. Webster took a very literal interpretation of Don Corleone’s famous phrase: “keep your friends close and your enemies closer” – living in the same condominium as the lead police investigator in this case.

Counsel for the Appellant: Neil Lonsdale Cobb (Cobb St. Pierre Lewis, North Vancouver)

Counsel for the Respondent: Paul Riley, Q.C. (Public Prosecution Service of Canada, Vancouver) and M. Charles (Articled Student)

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Posted: Wednesday, July 29, 2015