R v. El-Azrak, 2023 ONCA 440
Ms. El-Azrak was convicted of trafficking fentanyl patches she obtained using her position as a pharmacist. She appealed her conviction alleging her section 8 Charter rights were breached when police obtained private information about her from the Ontario College of Pharmacists (the “OCP”) without a warrant. At trial, the section 8 argument was dismissed.
At trial, the central question was whether there was a reasonable doubt as to whether Ms. El-Azrak knowingly participated in the trafficking scheme or was an “unwitting dupe” of others. Key incriminating text messages were found on cell phones seized but the warrants were based on information from the OCP’s initial disclosure.
Facts
York Regional Police (the “YRP”) requested information from the OCP about the appellant’s pharmacy. The OCP provided the names of the employees and advised the police there was a parallel investigation by the OCP into the management of narcotics. The OCP required the police to fill out a form if they wanted more information. The YRP filled out the form, requesting personal information about Ms. El-Azrak along with a copy of s.36 of the Regulated Health Professions Act, 1991 S.O. (RHPA), which sets out the circumstances where the OCP can release information to law enforcement.
The OCP provided Ms. El-Azrak’s home address, telephone number, email address, date of birth, and OCP number to investigators. The OCP also produced a heavily redacted drug usage report, which police used to identify a pattern where the suspected smuggler was using his phone in the general vicinity of Ms. El-Azrak ’s pharmacy on dates when fentanyl patches were being distributed in large numbers. The ensuing investigation revealed information connecting the suspected fentanyl smuggler to Ms. El-Azrak, which suggested she was complicit in the scheme.
A Reasonable Expectation of Privacy?
Section 8 of the Charter creates constitutional protection against unreasonable state intrusions for individuals who have a reasonable expectation of privacy over the subject matter of the search. In this case, the court reasoned that the subject matter was a home address, an email address with no investigative purpose, a wrong phone number and the heavily redacted Drug Usage Report.
While not determinative of the privacy issue, the regulatory framework in which the s. 8 issue operated diminished Ms. El-Azrak ’s reasonable expectation of privacy. The court held that as a professional pharmacist, Ms. El-Azrak is deemed to know the rules of regulations governing her profession – including the disclosure provisions found in s. 36 of the RHPA. To meet s. 8 compliance, the record holder must make an “independent and informed judgment”, which is what happened when the OCP first declined to provide identifying information and when the OCP redacted the Drug Usage Report. The Court further confirmed that the subject of the searches did not contain information that revealed intimate details of Ms. El-Azrak’s lifestyle, such that she had a reasonable expectation of privacy. While the conviction appeal was dismissed, the sentence appeal was allowed, reducing it to 8 years from the original 13 imposed.
R v. Neumann 2023 ABCA 200
The Crown appealed an acquittal of Mr. Neumann’s charges of possession of cocaine and methamphetamine for the purpose of trafficking. The appeal turned on whether Mr. Neumann’s rights were breached under s. 8 of the Charter.
Facts
In the fall of 2019, the Winnipeg Police Service received information from a confidential informant that a drug courier was bringing methamphetamine to the Rockwood Inn on October 1, 2019. The information only indicated there would be an unknown man in a red truck with an Alberta license plate.
On October 1, 2019, police surveillance observed a red Ford F-350 truck with an Alberta license plate arrive at the Rockwood Inn. A license plate search revealed that the registered owner did not match the description of the driver. A man entered the motel and returned to the truck a short time later. Police followed the truck to a gas station in Rosser, Manitoba, where they observed a quick hand-to-hand transfer of a brown satchel from the driver of the red truck. Upon arriving back at the motel, the man left the red truck carrying a large hockey-size duffle bag into one of the suites.
Investigators spoke to the motel manager and asked for the person’s name. The motel manager gave Mr. Neumann’s name and his cell phone number. After further investigation, tracking warrants were obtained, revealing a pattern of several trips in Western Canada. As of December 30, 2019, the red truck was parked for several days at a car dealership. An officer met with the general manager, who advised that the red truck was in for custom retrofit work. The general manager also provided Mr. Neumann’s telephone number, which was a different one than what was provided to Winnipeg Police.
A search warrant was obtained on January 29, 2020 and 46.9 kg of powder cocaine and 47.5kg of crystal methamphetamine were found in the cargo bed of the truck, along with documents corroborating the travel patterns suggested by the tracking data.
Warrantless Search on Appeal
At trial, the subject matter of the searches at the motel and car dealership were found to be a telephone number and name, for which there was an objectively reasonable expectation of privacy in the circumstances. The trial judge held that obtaining Mr. Neumann’s name and cell phone number at the motel and car dealership was a violation of his s. 8 rights.
The first element of determining the reasonableness of a search is whether it was “authorized by law”. Manitoba does not have privacy legislation, so the disclosure of information by the Rockwood Inn was treated as being governed by s.7 of the federal Personal Information Protection and Electronic Documents Act, which, generally, allows disclosure of personal information without consent if a government institution has identified its authority and is carrying out a law enforcement investigation.
The disclosure of the information by the car dealership was covered by s.20 of the Alberta Personal Information Protection Act, which is substantially similar to the federal provision, without the lawful authority requirement.
The Court of Appeal concluded that collection of Mr. Neumann’s name and cell phone number was authorized by the relevant privacy statutes and was lawful, and the “information was already in the hands of third parties who did not have an obligation of confidentiality in the circumstances”. In considering whether the information obtained had a reasonable expectation of privacy, the Court found that obtaining Mr. Neumann’s name and phone number did not have the potential to reveal intimate details about his lifestyle and did not affect his dignity, integrity, or autonomy. Notably, there was never any intention by police to obtain access to details about Mr. Neumann that may have been on the cell phone. The narrow purpose of the tracking warrant, as set out in the information to obtain in support, was to ascertain whether Mr. Neumann was travelling into Manitoba for the purpose of supplying methamphetamine or collecting proceeds from distribution. The Court stated: “when the police obtain someone’s cell phone number (however that may happen) the test is not what may be in the cell phone’s memory, but the intentions of the police and the actual use they make of the number” (at para 59). Here, Winnipeg police only used the phone number to corroborate other information and obtain the first two warrants.
The Court concluded the subject matter of the search was to obtain Mr. Neumann’s name and cell phone number for the sole purpose of preparing an Information to Obtain for tracking and transmission data warrants, as it was not possible to get a personal tracking warrant without a cell phone number. The Charter does not require a warrant to obtain this “very basic information necessary to obtain a warrant”. Ultimately, the court concluded that Mr. Neumann’s subjective expectation of privacy in the subject of the search was not objectively reasonable, and that the drugs and records seized were wrongly excluded from evidence. As a result, a re-trial was ordered.
Conclusion
In both cases, the subject of these warrantless searches – cell phone numbers, addresses, and names – did not ultimately carry a reasonable expectation of privacy in the circumstances. In El-Azrak, the regulatory framework in which the search was done diminished the reasonable expectation of privacy one could have, and the OCP made an independent and informed judgment about its release of information. In Neumann, the searches were lawful under applicable privacy legislation, and the police’s recorded intention to only use the cell phone number for a further warrant insulated the search from Charter scrutiny.
These decisions demonstrate the impact privacy legislation can have on police powers for obtaining information from third parties. Although these decisions support the principle that police do not need a warrant to obtain basic information from third party record holders, police should be aware of the applicable privacy legislation provisions that govern disclosure of information generally and any privacy provisions contained in legislation that governs the third-party from whom the records are sought to ensure compliance with s.8 of the Charter.
If your require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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