BETWEEN
Respondent
and
Appellant
MacPherson J.A.:
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A. INTRODUCTION
[1] The appellant, Keith Ritchie, was convicted of the following offences:
on a joint submission, the appellant received a global sentence of nine years and
[2] The principal issue on the appeal relates to the police seizure of a Blackberry
owned by another accused who was alleged to be involved in the same enterprise.
Communications on the Blackberry between the appellant and the other accused
led to the charges against the appellant. At his trial, the appellant sought to exclude
those communications on the basis that they violated his rights to be secure from
unreasonable searches and seizures under s. 8 of the Charter. The trial judge ruled
against him.
[3] The trial judge did not have the benefit of the decision of the Supreme Court
of Canada in R. v. Marakah, 2017 SCC 59. The central issue on the appeal is
whether the trial judge’s ruling has been rendered incorrect by Marakah.
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[4] At the conclusion of the appeal hearing, the court indicated that the appeal
was allowed and a new trial was ordered, with reasons to follow. These are the
reasons.
B. FACTS
[5] The Thunder Bay Police seized John Tsekouras’ Blackberry in 2011
The police searched the Blackberry without warrant. The Blackberry contained
coded communications that the appellant had sent to Tsekouras. The police used
[6] The first search warrant was to search credit card account information for a
number referenced on the Blackberry. The data relating to the credit card revealed
that the appellant had obtained it using his driver’s licence and passport. The
[7] Apart from the contents of the Blackberry, there was very little information
about the appellant, his involvement in the drug trafficking activities of the putative
criminal organization, or his residence. The basis to believe that the appellant lived
at the address searched was a one-time tip and a single incident where the
[8] During the search of the residence, the police recovered the credit card
bearing the card number referenced in the Blackberry communication between the
[9] At his trial, Tsekouras tried to exclude the Blackberry evidence. The trial
judge found that the police had violated his Charter s. 8 rights, but admitted the
evidence under Charter s. 24(2). Tsekouras was convicted. On appeal, this court
upheld the trial judge’s decision: R. v. Tsekouras, 2017 ONCA 290, leave to appeal
Pre-trial motions
[10] At his trial, the appellant brought several pre-trial motions. Two are relevant
[11] The appellant sought to exclude the information obtained as a result of the
search of Tsekouras’ Blackberry. The trial judge dismissed the motion on the basis
[12] The appellant also sought to have the communications between himself and
Tsekouras excised from the ITOs so that he could then argue that the ITOs were
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deficient. The trial judge dismissed this motion on the basis that the appellant
…
[56] In this case, I have found that there was no
expectation of privacy in Mr. Ritchie’s messages to Mr.
Tsekouras, therefore, on the basis of Edwards, no breach
of his s. 8 rights to provide a remedy under s. 24(2).
[13] The appellant was convicted on all counts in the indictment. He appeals the
convictions.
C. ISSUES
[14] The recent decision of the Supreme Court of Canada in Marakah has
[15] First, the Crown concedes that the appellant had standing to mount a
at paras. 13-55.
[16] Second, the Crown concedes that the communications from Tsekouras’
[17] Third, the Crown does not contest that the unlawfully obtained information
about the communications between the appellant and Tsekouras must be excised
from the ITOs: R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1452-3, and R. v. Wu,
2015 ONCA 667, at para. 38. In light of these concessions, I would frame the
D. ANALYSIS
[18] Because the trial judge concluded that the appellant did not have standing
to challenge that the ITOs were deficient or to seek the excision of some of the
information in them, he did not reach the potential Charter s. 8 and s. 24(2) issues.
Now, with the Crown concession on the s. 8 issue, the question becomes: should
this court return the matter to the trial judge to determine the s. 24(2) issue or
should this court determine it on the basis of the record before us?
24(2) issue that was not addressed at trial because the trial judge’s ruling stopped
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Spencer, 2014 SCC 43, at para. 75, and Marakah, at para. 58. The appeal record
contains the entire Application Record that was before the trial judge on the two
motions that are the subject of this appeal. This is sufficient to provide a foundation
[20] In my view, the three lines of inquiry described in R. v. Grant, 2009 SCC 32,
lead to the conclusion that the evidence obtained from Tsekouras’ Blackberry
[21] In Marakah, McLachlin C.J. said this about the search of Winchester’s phone
[22] In my view, what McLachlin C.J. said in the emphasized passage about the
seriousness of the breach of Marakah’s s. 8 right applies with equal force to the
appellant. Further, due to the timing of the search, if anything, the appellant’s case
is stronger. In Marakah, the police searched the phone without a warrant two hours
after Winchester’s arrest. The court acknowledged that the police may have acted
in good faith: Marakah, at para. 65. In the appellant’s case, the police searched
Tsekouras’ phone without a warrant six months after they seized it, and obtained
[23] The respondent contends that the severity of the impact of the unlawful
search is reduced by the fact that the messages were recovered on Tsekouras’
Blackberry, not the appellant’s. The respondent also asserts that, in any event, the
evidence was discoverable through constitutional means based on the fact that a
[24] Once again, the Supreme Court of Canada’s decision in Marakah provides
[25] The appellant is in the same position as Marakah. Accordingly, the impact
merits
[26] It is obvious that society’s interest in the adjudication of this case on its merits
and Tsekouras. The criminal charges against the appellant are very serious,
including trafficking in cocaine and trafficking in cocaine for the benefit of a criminal
search warrants that led to reliable and probative evidence in the prosecution of
the case.
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[27] Once again, the analysis in the virtually identical Marakah is controlling.
Having found that two of the Grant factors favoured exclusion and one favoured
[28] In my view, that is also this case. Marakah requires that the evidence be
excluded.
[29] The respondent raises the issue of the potential application of the proviso in
s. 686(1)(b)(iii) of the Criminal Code. However, in its brief argument in its factum it
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concedes that “[r]eference to the proviso is inextricably bound up with the 24(2)
[30] The respondent has not succeeded in its s. 24(2) argument. I can see no
independent basis for applying the proviso. The reality is that, without the evidence
of the appellant’s communications with Tsekouras, the case against the appellant
is weak.
E. DISPOSITION