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[21] Thus, before s. 490(15) comes into play, a determination has already been made that an entry onto private property, an invasive search of premises, and a seizure of items and/or information is justified. In those circumstances, the “state’s interest in detecting and preventing crime ... [prevails] over the individual’s interest in being left alone ...” because “credibly based probability” has replaced suspicion (Hunter v. Southam at 167).
[22] That being so, the respondents’ submission that for s. 490(15) to be operative, a separate investigative agency with an interest in the fruits of the warranted search must demonstrate separate reasonable and probable grounds not based on the contents of the seized items is conceptually difficult to grasp.
[23] What is contemplated by s. 490(15) is not an entry on to private property, nor an invasive search of an individual’s premises, nor a seizure of items in the possession of an individual. Rather, it is to permit an examination of items already in the lawful possession of agents of the state for the detection or prevention of crime. The fact that the alleged crime, subject to detection or prevention, is different from that for which the items were seized and involves a different investigative agency from that which seized them mandates a prior authorization under s. 490(15). However, the focus of the application under that section is whether the person seeking to examine the detained items has an interest in what is detained, not whether he has the grounds necessary for a search warrant with its attendant invasive powers.
[24] The point that once lawfully seized and detained, items retain a significantly lower privacy interest of the person from whom they were seized is underlined in various of the authorities referred to by counsel.
[25] In United States of America v. Wakeling, 2011 BCSC 165 (CanLII), 268 C.C.C. (3d) 295, aff’d 2012 BCCA 397 (CanLII), 328 B.C.A.C. 174, leave to appeal to S.C.C. requested, [2012] S.C.C.A. No. 534, Ross J. was dealing with judicially authorized intercepted private communications in Canada, which were transmitted by the Canadian authorities to authorities in the United States.
[26] In dealing with the question of whether the subsequent transmission constituted a search or seizure for the purposes of s. 8, Ross J. held at para. 69:
However, contrary to this submission, it is well established that the individual’s residual privacy interest in items seized pursuant to a lawful search is if not extinguished, at least significantly diminished. For example, in R. v. Law, 2002 SCC 10 (CanLII), Justice Bastarache for the court, concluded that an accused maintained a residual but limited privacy interest in the contents of a stolen safe recovered by the police.
[27] Madam Justice Ross also relied on R. v. Piche (1996), 85 B.C.A.C. 14 (C.A.); R. v. Angel Acres Recreation & Festival Property Ltd., 2004 CarswellBC 3100 (S.C.); R. v. Murdock, [2003] O.J. No. 5736 (Sup. Ct. J.); R. v. Szalontai, [1993] B.C.J. No. 2934 (S.C.) and R. v. Pickton, 2006 BCSC 1090 (CanLII), 260 C.C.C. (3d) 185 in support of that proposition.
[28] She quoted from Hall J., as he then was, in Szalontai at para. 22, where he noted as follows in part:
while a person would expect their documents in police custody not to be shown to the public at large or to the press, for instance, I doubt that a person could have any particular high expectation that another investigative department of government would not be apprised in a general way that there might be matters of interest to them in the seized material.
[29] Justice Ross also quoted from R. v. Murdock, a case in which the police provided information to Revenue Canada acquired through the execution of a search warrant. In that case, in rejecting an application to exclude a report from CRA based on shared information, McKinnon J. held as follows at paras. 14 and 15:
I find that the sharing of the information with Canada Customs and Revenue is entirely reasonable in these circumstances. The sharing has occurred between sister law enforcement agencies. Both agencies are bound to uphold the laws of Canada, and no extra-territorial jurisdictions are involved. The information has been seized pursuant to a validly executed warrant and thus any expectation of privacy in the information is greatly reduced if not altogether extinguished, for the purposes of the administration of Canadian law.
This is not a case where a less stringent regime used to gain evidence is being used to feed a regime where the requirements are more stringent as was a concern cited in R. v. Law, 2002 SCC 10 (CanLII), [2002] 1 S.C.R. 227, 160 C.C.C. (3d) 449 (S.C.C.) p. 23, which in turn cited the concern of the same court in R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, For example, if Canada Customs and Revenue had obtained information from Mr. Murdock in the exercise of its audit powers and proceeded to share this information with the Ontario Provincial Police in order to advance a Criminal Codeoffence then it could well be argued that such activity violated the Charter rights of the accused and legitimate privacy expectations. In the present case however, I find the situation to be entirely opposite.
[30] It is clear from Hunter v. Southam that what is protected by s. 8 is a reasonable expectation of privacy, not a privacy interest which has been attenuated by a judicial determination there is a credible probability that its subject matter will yield evidence of criminal activity. Thus, where such a determination has already been made and is unchallenged, the authorities do not support the proposition that the residual privacy interest is sufficient to require a re-assessment “as to whether ... the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement” (Hunter v. Southam at 159-60).
[31] That is particularly so when one considers that the nature and extent of any intrusion contemplated by the application of s. 490(15) is substantially less than that at issue before the objects of the examination have been subject to a search warrant.
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