R v King, 2021 ABCA 271
[7] The initial challenged “state action” was the viewing of the USB flash drive by the police. The trial judge’s analyses depended, in part, on tainting the police’s conduct in viewing the USB flash drive with the method by which Ms. Liu obtained the images. The police’s conduct was measured by how the evidence was originally collected, even if it was not collected by a state agent. The distinction between Mrs. Liu’s conduct and “state conduct” disappeared.
[8] As pointed out in R. v Orlandis-Habsburgo, 2017 ONCA 649 at para. 34, 352 CCC (3d) 525:
34 I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.
Some may view Ms. Liu’s conduct in accessing the appellant’s electronic devices as being unethical or an invasion of privacy, but her conduct did not engage his Charter rights. She was not a state agent. She was “legally entitled to inform the police of [her] discovery of contraband”: R. v Cole, 2012 SCC 53 at para. 73, [2012] 3 SCR 34. The police can presumptively look at most evidence provided to them without breaching s. 8.
[9] The appellant relies on R. v Marakah, 2017 SCC 59, [2017] 2 SCR 608, which was concerned primarily with “standing” and particularly with when an expectation of privacy attaches to communications between two people. Here there was no communication between people, but there was also no dispute that the appellant had an expectation of privacy in the contents of his electronic devices. The key difference, however, was that in Marakah, the searches were conducted by the state; in this case, it was a private citizen (Ms. Liu) who accessed the information. The Majority stated:
50 On the first scenario, the victim, his or her parents, or other intelligence alerts the police to the existence of offensive or threatening text messages on a device. Assuming that s. 8 is engaged when police access text messages volunteered by a third party (see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at paras. 21-35), a breach can be avoided if the police obtain a warrant prior to accessing the text messages. As stated in Cole, "[t]he school board was ... legally entitled to inform the police of its discovery of contraband on the laptop" and "[t]his would doubtless have permitted the police to obtain a warrant to search the computer for the contraband" (para. 73). Similarly, victims of cyber abuse are legally entitled to inform the police, which will typically permit the police to obtain a warrant. The police officers will be aware that they should not look at the text messages in question prior to obtaining a warrant. On this scenario, there is no breach of s. 8 and the text messages will be received in evidence. (Emphasis added)
This passage, if anything, supports the position of the Crown in this appeal, because it assumes that there must be some state action before a Charter breach can occur. Further, in Marakah, the unreasonableness of the search was conceded if the appellant was found to have standing.
[10] The decision in R. v Reeves, 2018 SCC 56, [2018] 3 SCR 531 is also distinguishable. In that case, the police took possession of a computer that was jointly owned by the accused and his spouse and four months later obtained a warrant to access it. It was the seizure of the computer without a warrant, and the resulting loss of control of the personal information contained on it, that was found to be unreasonable. In the present appeal, the police did not take anything that belonged to the appellant. Ms. Liu told them about information she had observed and provided her own copy of part of what she had seen.
[11] Reeves did not resolve the issue presented by this appeal. The Majority wrote:
46 The Crown also argues that rejecting its approach will prevent victims of crime who have received threatening or harassing text messages from showing them to the police. However, the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case (see Marakah, at para. 50; Dyment, at p. 432; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21-35). Indeed, Gravelle did not bring the computer to the police, but rather signed a consent form authorizing them to take it. (She testified that she signed the form because she did not think she had a choice.) The issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day. This case deals squarely with the taking of a computer by the state. (Emphasis added)
Neither Reeves nor Marakah express any doubt about Orlandis-Habsburgo.
[12] The reason that the police viewed the USB flash drive was to confirm that it contained child pornography as reported by Ms. Liu. It is acknowledged that the appellant had an expectation of privacy in the contents of his laptop: R. v Vu, 2013 SCC 60 at paras. 40-43, [2013] 3 SCR 657. The state, however, never intruded into his laptop or his privacy. Ms. Liu looked at the contents of the laptop and captured some of its contents, but she was not a state agent. The mere fact that the appellant had an expectation of privacy does not engage s. 8, and the absence of state action at that stage is dispositive. If the police had done what Ms. Liu did, there would have been a s. 8 breach, but they did no more than receive a report from a citizen who said she had found evidence of a crime. Their viewing of her USB flash drive may have been state action, but receiving reports of a crime does not engage the appellant’s s. 8 rights.
[13] The appellant argued that Ms. Liu “stole” the information from his laptop and that the police could not view it without a warrant. His counsel, however, conceded that if Ms. Liu had found drugs under the appellant’s bed and taken them to the police, the police would have been able to take possession of and analyze those drugs without a warrant. However, counsel argued that if Ms. Liu found a photograph album under the bed containing pornography, and took it to the police, the police could not look inside the album without judicial authorization. It is difficult to see how the appellant had any greater or lesser personal, territorial or informational privacy interest in what was under his bed: drugs, weapons, or photographs. Whatever Ms. Liu may have “stolen” from under the bed and taken to the police, the key is whether her delivering it to the police engages state action.
[14] The requirement that there be “state action” for a Charter breach is effectively negated if private action becomes state action the minute the private citizen interacts with the police. Further, the police are not required to conduct a “voir dire” at the front counter of the police station to look into the source of the citizen’s information before the police even look at what the citizen has brought in. If, as in this case, the police wish to follow up on that information, it may be that they will have to obtain a warrant. But merely looking at Ms. Liu’s USB flash drive was not a “search” involving the appellant, let alone a search involving state action.
[15] In this case, the applications for the search warrants depended not only on what the police saw on the USB flash drive but also on what Ms. Liu had told them she had seen. It is true that Ms. Liu had obtained access to the appellant’s mobile telephone through seeing the appellant entering his password and surreptitiously memorizing it, but that was not the case with all of the devices. On other occasions, the appellant left his electronic devices open and unattended, and Ms. Liu was able to view the contents. In neither case does Ms. Liu reporting what she saw to the police amount to a search being conducted by state action.
[16] When citizens like Ms. Liu attend at the police station and provide evidence of what they have reason to believe was a crime, the police do not engage in an “unreasonable warrantless search” by examining the evidence provided. The alleged state action took place when the police looked at what had been brought to them. However, examining images whose mere existence may be a crime (or, at the very least, evidence of a crime) is what police do. As noted in R v Molyneaux, 2020 PECA 2 at para. 35: “The very thought that police would require judicial authorization before interviewing witnesses because that witness might provide information which could in turn lead to the police obtaining personal information is counter-intuitive if not absurd”. Examining such evidence does not turn Ms. Lui’s private action into “state action”, or turn a normal police investigation into a search. Examining such information is clearly “authorized by law”, as the investigation of possible crimes is one of the core duties of the police service. Indeed, the police can hardly refuse to look at what the member of the public has brought in and still discharge their duty to enforce the law.
[17] In Buhay, private security guards searched a locker at the bus depot. The Supreme Court found that this was private conduct that did not engage the Charter, despite the subsequent involvement of the police. The later warrantless search of the locker by the police did engage the Charter, but the mere involvement of the police was not sufficient:
28 Nothing in the evidence allows a conclusion that the security guards or the agency by which they were employed can be assimilated to the government itself, nor can their activities be ascribed to those of the government. . . .
30 Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated . . . . In the case at bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 and therefore the security guards cannot be considered state agents.
In this case, the actions of Ms. Liu are analogous to those of the security guards in Buhay. At the point in time when she involved the police, they did get warrants, which distinguishes this case from Buhay.
[18] A member of the public who reports evidence of a crime is not purporting to waive anybody’s constitutional rights, or purporting to provide anybody else’s consent, but is merely reporting a suspected crime. The examination of the USB flash drive by the police was not an examination of any thing or place that belonged to or that was under the control of the appellant. The police were not required to inquire into how the appellant’s wife obtained the images, because regardless of how she obtained them, her private activities would not be a state Charter breach.
[19] In his subsequent ruling on exclusion of the evidence, the trial judge concluded that the police were “already in the lawful possession” of the USB flash drive: 2019 ABPC 236 at para. 56. That was clearly the case because the USB flash drive belonged to the appellant’s wife, and she had brought it into the police station and voluntarily given it to the police. Since the USB flash drive, as a piece of electronic hardware, has no intrinsic value beyond its contents, it is artificial to say that the police were in lawful possession of the USB flash drive, but somehow looking at what was on it was not “authorized by law”, even though it was voluntarily given to them.
[20] It follows that the trial judge’s conclusion that the police’s knowledge of the contents of the USB flash drive was obtained through an unreasonable warrantless search cannot stand. There was accordingly no basis to set aside the warrants. The searches pursuant to those warrants were validly conducted, and there was no basis to exclude the evidence found.
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