COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tuduce, 2014 ONCA 547

DATE: 20140717

DOCKET: C55028

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Stefanita Tuduce

Appellant

N. Jamaldin, for the appellant

Deborah Krick and Avene Derwa, for the respondent

Heard: May 22, 2014

On appeal from the conviction entered on June 27, 2011,
    and the sentence imposed on February 6, 2012, by Justice Gerald E. Taylor of
    the Superior Court of Justice, sitting without a jury.

Gillese
    J.A.:

[1]

Adrian Stefanita Tuduce (the appellant) was found in possession of 48
    LCBO gift cards and a Scotiabank debit card, each of which had been encoded
    with data from a valid debit card account.  Some of the cards had been used to
    complete transactions.  He was also found in possession of equipment used to
    skim data from credit and debit cards.

[2]

The appellant was convicted of seven credit card fraud-related offences
    and sentenced to two years less a days imprisonment followed by two years
    probation.

[3]

The appellant appeals against conviction.  He seeks leave to appeal
    against sentence, and moves to admit fresh evidence in respect of his sentence appeal.

[4]

For the reasons that follow, I would dismiss the conviction appeal and,
    while I would grant leave to appeal sentence, I would also dismiss that appeal,
    as well as the motion to admit fresh evidence in respect of the sentence appeal.

BACKGROUND

The Driving Arrest and the Pat-Down Search

[5]

At about 10:22 a.m. on January 20, 2009, Cst. John Foster of the
    Waterloo Regional Police Service pulled over a Mercedes SUV travelling at
    118km/h in a zone where the speed limit was 80 km/h.  The appellant was the
    driver and sole occupant.  After receiving the appellants licence and
    registration, Cst. Foster went back to his cruiser to conduct routine checks.  He
    found that the appellants licence had been suspended for unpaid fines.

[6]

At 10:28 a.m., Cst. Foster arrested the appellant for driving with a
    suspended licence.  He conducted a pat-down search for safety reasons.  The
    appellant was wearing a large, puffy winter coat.  Cst. Foster placed his hands
    in the front pocket of the coat and pulled out a small leather wallet, a USB
    key, and a bundle of credit cards held together with an elastic band.  Cst.
    Foster noticed that the cards were not in the appellants name, and that one of
    the cards was in a small manila envelope.  The appellant said that the cards
    belonged to his girlfriend.

[7]

Cst. Foster placed the appellant in the back of his cruiser.  He did not
    handcuff the appellant.  He let the appellant keep his cell phone to call his
    mother to pick up the SUV.

The SUV
    Search Incident to the Driving Arrest and Subsequent Credit Card Arrest

[8]

Cst. Foster returned to the SUV to turn off the ignition and roll up the
    window.  He noticed a dismantled cell phone, a SIM card, and a large number of
    credit card-sized manila envelopes.  He also noticed two
Provincial
    Offences Act
notices on the back seat.  At that point, he formed the
    belief that the cards he had found in the appellants pocket were stolen, and
    that he had sufficient grounds to arrest the appellant for possession of stolen
    credit cards, contrary to s. 342(1)(c) of the
Criminal Code
, R.S.C.
    1985, c. C-46 (the
Code
).

[9]

Cst. Foster then returned to the cruiser, placed the appellant under
    arrest for credit card fraud, handcuffed him, and took his cell phone and
    bundle of cards.

[10]

Cst.
    Foster returned to the SUV to seize the envelopes, SIM card, and dismantled
    cell phone.  He opened the rear door to retrieve the
Provincial Offences
    Act
notices.  At this point, he noticed a green fabric box on the floor
    behind the drivers seat.  He could see a portion of an Ontario drivers licence
    sticking out of the box.  Cst. Foster was aware that it is an offence under the
Highway Traffic Act
, R.S.O. 1990,
    c. H.8,
to possess more than one drivers licence. He removed the licence
    and examined it.  It was in the name of Thomas Brook.

[11]

Cst.
    Foster also noticed a small saran-wrapped package that he thought might contain
    narcotics.  He unwrapped the package and found a number of small electronic
    parts that he thought could be used to take information from the magnetic strip
    of credit and debit cards.  Cst. Foster also saw four or five shopping bags.  He
    could see computer cables and the edge of a credit card imprinter protruding
    from one of the bags, a black Guess Jeans bag.  He took this bag and placed
    it in the back of his cruiser.

[12]

Cst.
    Foster halted the search of the SUV for safety reasons.  Cars were passing at a
    high rate of speed near where he was standing.  The appellants mother had also
    arrived and was walking around.  He took the appellant to a police station in
    Kitchener.  He searched the appellant, finding six more SIM cards and a small
    electronics board.  He placed the appellants USB key with the appellants
    personal property.

The SUV Search After Towing

[13]

Cst.
    Foster met with two detectives from the fraud branch, Dets. Klingenberg and
    McLinden (the Detectives).  They decided that the appellant should also be
    charged with possession of instruments for forgery contrary to s. 342.01 of the
Code
.  Cst. Foster told the Detectives that there were still shopping
    bags in the back of the SUV that needed to be seized.  At 3:40 p.m., the
    Detectives went to Active Franks Towing (where the vehicle had been taken) and
    seized the bags.  They believed a warrant was not necessary because they were
    only continuing Cst. Fosters search incident to arrest.

The Search of the USB key

[14]

After
    returning to the police station, the Detectives met with Cst. Foster again.  They
    decided to search the USB key the appellant had been carrying. Det. McLinden
    believed there could be additional information regarding the debit card data
    found in the appellants SUV.  Later that evening, Det. McLinden put the USB
    key into his computer and briefly searched its contents.  He did not think that
    a warrant was required because the USB key had been seized incident to arrest.

[15]

On
    January 22, 2009, Det. McLinden turned the USB key over to Det. Harth, an
    expert in the forensic examination of electromagnetic, optical, and digital storage
    devices.  Det. Harth analyzed the USB key on January 27, a week after the
    appellants arrest.  He retrieved photographs of a card reader insert used in a
    skimming device and of a circuit board that resembled circuit boards known to
    have been used in skimming devices; text files containing a series of numbers
    that appeared to be credit or debit card numbers followed by four digit
    Personal Identification Numbers (PINs); and links to websites that appeared
    to offer pinhole cameras and material for use in skimming devices for purchase,
    as well as instructions on how to make a magnetic strip card reader.

Evidence of Unauthorized Use of Credit Card Data

[16]

Among
    the charges against the appellant were three counts of unauthorized use of
    credit card data contrary to s. 342(3) of the
Code
.  These were counts
    four through six of the appellants indictment.

[17]

Count
    four alleged unauthorized use of CIBC debit card data.  (A debit card counts as
    a credit card for the purposes of s. 342(3) of the
Code.
)  Noel
    Moyston, Director of Corporate Security  Debit Card Fraud for CIBC, testified at
    the appellants trial that 29 of the LCBO gift cards found in the appellants
    SUV were encoded with data belonging to valid CIBC debit accounts, and that these
    cards had not been issued by CIBC.  He added that all of these accounts had
    unauthorized activity between November 29, 2008, and December 13, 2008,
    resulting in a total loss of $2,488.50 in respect of five of the cards.  He
    testified that the debit cards were all likely blocked on December 13, 2008.

[18]

Count
    five alleged unauthorized use of RBC debit card data.  Stephen Bone, a
    corporate security investigator with RBC, testified that 19 of the LCBO gift
    cards found in the appellants SUV had been encoded with data belonging to RBC
    accounts, and that these cards had not been issued by RBC.  There was no
    evidence of unauthorized use of these cards.

[19]

Count
    six alleged unauthorized use of BMO debit card data.  Michael OMalley,
    employed by BMOs corporate security department, testified that a Scotiabank
    debit card found in the appellants SUV had been encoded with data belonging to
    a valid BMO debit card.  He testified that the card had been blocked in October
    2008 because of transactions that were deemed to be fraudulent.  BMO had suffered
    a loss of $800 from the use of the card.

Requirements for a Successful Debit Transaction

[20]

The
    Crown led evidence at trial that to successfully complete a transaction using a
    debit card, the account number and routing data (collectively referred to as track
    data) encoded in the card must match the data attached to the particular
    account.  The user must also enter a PIN.

[21]

The
    account number is a unique identifier that belongs only to the legitimate card.
    The routing data is an algorithm used for processing.  Mr. Bone explained that
    nobody employed at the bank actually knows the algorithm.  Mr. McGowan
    explained that when credit or debit card data is skimmed, all of the track data
    is necessarily copied.

[22]

The
    Crowns experts could not confirm that the routing data on the cards the
    appellant possessed matched valid bank accounts, but Mr. McGowan did indicate
    that all of the track data was in the format necessary to authorize a
    transaction.

[23]

Just
    as is the case with a credit card, a debit card generally cannot be used when
    it is blocked or cancelled.  Mr. Moyston testified that it might be possible to
    use a blocked card on a remote ATM (an ATM that carries out transactions
    offline, without connecting to the host server).  In the case of a credit card,
    a blocked or cancelled card could be used over the phone where the merchant
    does not verify the card number.  In either case, the merchant or ATM owner
    will not be reimbursed by the bank for the loss.

THE
CHARTER
RULINGS

[24]

The
    appellant claimed that the various searches breached his rights under s. 8 of
    the
Canadian Charter of Rights and Freedoms
(the
Charter
).
    He brought a motion pursuant to s. 24(2) of the
Charter
to have excluded
    all evidence seized following his driving and credit card arrests.

[25]

The
    trial judge considered the following four searches:

1.

the pat-down
    search following the driving arrest;

2.

the roadside
    search of the SUV following the driving arrest, during which the credit card
    arrest occurred;

3.

the search of
    the SUV after it was towed; and

4.

the search of
    the USB key.

[26]

Initially,
    the trial judge found a s. 8 breach only in respect of the examination of the
    USB key.  He did not exclude the evidence from that search pursuant to s.
    24(2).

[27]

After
    the release of
R. v. Loewen
, 2011 SCC 21, [2011] 2 S.C.R. 167, a
    Supreme Court of Canada decision that clarified the requisite legal standard
    for reasonable and probable grounds for arrest, the trial judge released an
    amended
Charter
ruling, in which he found that the roadside arrest for
    possession of stolen credit cards was unlawful and that, accordingly, the
    searches of the SUV incident to that arrest were also unlawful.  Nonetheless,
    he concluded that the evidence discovered from these searches should not be
    excluded pursuant to s. 24(2).

[28]

The
    trial judges ruling, as amended, can be summarized as follows.

Validity of the Searches

[29]

The
    trial judge found that the pat-down search was not carried out contrary to s. 8
    of the
Charter
.  He noted that no issue had been taken with the
    validity of the appellants driving arrest and that, as such, there was no
    dispute that Cst. Foster was entitled under
Cloutier v. Langlois
,
    [1990] 1 S.C.R. 158, at p. 186, to conduct a warrantless search incident to
    arrest for an object that may be a threat to the safety of the police, the
    accused or the public, or that may facilitate escape or act as evidence against
    the accused.  The trial judge concluded that Cst. Foster conducted the
    pat-down search and his inspection of the appellants wallet and bundle of
    cards for safety reasons and that it was reasonable for him to do so.  The
    trial judge noted that a small item that could have been used as a weapon, such
    as a razor blade, could have been located in the wallet or the stack of credit
    cards.  The trial judge added that it was also reasonable for Cst. Foster to
    examine the contents of the wallet and read the names on the credit cards while
    he conducted his search, as it is unrealistic to require a police officer to
    refrain from examining items that he locates during the course of a pat-down
    search for weapons.

[30]

However,
    the trial judge concluded that the searches of the SUV violated s. 8 of the
Charter
.
    In his view, Cst. Fosters observation of the dismantled cell phone, SIM card,
    and manila envelopes did not establish reasonable and probable grounds that an
    offence under s. 342(1)(c) of the
Code

had been committed, and
    accordingly, his arrest of the appellant for credit card fraud was unlawful.  Because
    this arrest was unlawful, both of the searches of the SUV carried out incident
    to that arrest were also unlawful.  In the trial judges view, reasonable and
    probable grounds would only have arisen after Cst. Foster saw the second
    drivers licence and credit card skimming equipment that were in the back of
    the appellants SUV.

[31]

The
    trial judge concluded that the search of the USB key also violated s. 8 of the
Charter
because, absent exigent circumstances, the police power to search incident to
    arrest does not authorize the search of an electronic device.  In reaching this
    conclusion, he relied on this courts decision in
R. v. Manley
, 2011
    ONCA 128, 269 C.C.C. (3d) 49, at para. 39, which adopted the reasoning in
R.
    v. Polius
(2009), 196 C.R.R. (2d) 288 (Ont. S.C.), at paras. 50-54.

Section 24(2)

[32]

Although
    the trial judge concluded that the searches of the SUV and the USB key violated
    s. 8 of the
Charter
, he did not exclude the evidence obtained from those
    searches pursuant to s. 24(2).

[33]

With
    respect to the searches of the SUV, he found that Cst. Foster did not act in
    bad faith, and that he would have formed reasonable and probable grounds to
    arrest the appellant for credit card fraud when he retrieved the
Provincial
    Offences Act

notices from the back seat of the appellants car and
    noticed the second drivers licence and credit card skimming equipment that
    were near the notices.  The trial judge also noted that all of the items seized
    were in plain view in a vehicle on a public highway, and hence the appellants
    reasonable expectation of privacy was relatively low. Finally, the evidence was
    probative and reliable.

[34]

With
    respect to the search of the USB key, the trial judge noted that this search
    had been carried out before
Polius

clarified the law with
    respect to searches of electronic devices, and that the Waterloo Regional
    Police Service had since changed its policy on searches to comply with
Polius

and
Manley
. Therefore, he found, the failure to obtain a search
    warrant before examining the content of the USB key was not a serious breach of
    the
Charter
.

[35]

The
    trial judge found that the impact on the appellants
Charter
-protected
    interests was not significant.  In reaching this conclusion, the trial judge took
    into consideration that the appellant was carrying the USB key in his coat
    pocket, while he was driving a motor vehicle, and that the data on the USB key
    was not password protected.  In his view, these considerations pointed to a
    lower expectation of privacy than a person would have had in respect of a
    password-protected memory stick kept in that persons private residence.  The
    trial judge also noted that there was no suggestion that the police treated the
    appellant inappropriately in any of their interactions with him.

[36]

Finally,
    the trial judge found that the evidence was reliable and that exclusion of the
    evidence would impair the truth seeking function of the trial on the charges in
    question.

[37]

After
    considering and balancing the three factors, the trial judge found that
    societys interest in the adjudication of the charges tipped the scales against
    exclusion of the evidence located on the USB key.

THE TRIAL DECISION

[38]

The
    trial judge convicted the appellant of one count of possession of materials
    intended for use in forging or falsifying credit cards contrary to s. 342.01 of
    the
Code
, two counts of possession of stolen credit cards contrary to
    s. 342(1)(c) of the
Code
, one count of possession of a counterfeit
    mark contrary to s. 372(2)(b) of the
Code
, and three counts of
    possession of credit card data contrary to s. 342(3) of the
Code
.

[39]

With
    respect to the counts under s. 342(3) of the
Code
, the trial judge
    concluded that it was not necessary for the Crown to prove that a debit or
    credit card issuer could be successfully defrauded through use of the data in
    the appellants possession, and that as such, it was irrelevant that some of
    the accounts at issue had been blocked or cancelled at the time of the appellants
    arrest.  In reaching this conclusion, he relied on this courts decision in
R.
    v. Kokoouline
, 2009 ONCA 253, which states, at para. 6, that s. 342(3) of
    the
Code

does not require that the Crown prove that the issuer
    of the credit card could be successfully defrauded by its use before the Crown
    can obtain a conviction under that section.

[40]

The
    trial judge also concluded that it was not necessary for the Crown to prove
    that all of the track data encoded on the cards in the appellants possession
    matched valid account data.

THE ISSUES

[41]

The
    appellant submits that the trial judge erred in:

(1)

finding that the pat-down search
    and examination of his wallet and credit cards did not violate s. 8 of the
Charter
and failing to exclude this evidence pursuant to s.
    24(2) of the
Charter
;

(2)

failing to exclude the evidence obtained
    from the searches of the SUV and the USB key, pursuant to s. 24(2) of the
Charter
;
    and

(3)

convicting him under s. 342(3) of
    the
Code
for unauthorized possession of credit card data, when the
    credit cards were blocked and the track data was not present.

[42]

If
    leave is granted, the appellant will argue that the sentence was harsh and
    excessive.

THE CONVICTION APPEAL

Issue #1: Did the pat-down search of
    the appellants wallet and credit cards violate s. 8 of the
Charter
?

[43]

Because
    a search incident to arrest is predicated on a lawful arrest, the first question
    is whether the appellants
Highway Traffic Act

arrest was
    lawful.

[44]

Section
    217(2) of the
Highway Traffic Act

states that a police officer may
    arrest a person without warrant when the officer believes, on reasonable
    grounds, that the person has committed any of several enumerated offences
    contrary to the
Highway Traffic Act
, including the offence of driving
    while that persons licence is suspended contrary to s. 53:

Any police officer who, on reasonable and probable
    grounds, believes that a contravention of any of the provisions of subsection 9
    (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47
    (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or
    184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been
    committed, may arrest, without warrant, the person he or she believes committed
    the contravention.

[45]

The
    appellant conceded at trial that the driving arrest was lawful.  However, on
    appeal he submits that although he was speeding and driving with a suspended licence,
    it was not reasonable for Cst. Foster to have arrested him.  He says that Cst.
    Foster should have instead given him a summons and arranged for the safe towing
    or removal of the car.

[46]

An
    officer has a broad discretion to arrest under s. 217(2), provided the
    reasonable and probable grounds standard is met.  Such an arrest will be invalid
    only if there was a complete absence of justification to arrest or the
    arrest was made for an unlawful or improper purpose:
R. v. Coleman
(1999), 43 M.V.R. (3d) 196 (Ont. S.C.), at para. 25.

[47]

This
    is not a case where there was a complete absence of justification to arrest or
    where the arrest was made for an unlawful or improper purpose.  The appellant
    was the sole occupant of the SUV.  He was speeding and driving with a suspended
    licence.  Based on his record check, Cst. Foster knew that the appellants licence
    had been suspended for a sufficient length of time that the appellant would
    have received notice of the suspension by mail.  Had Cst. Foster issued a
    summons and left the appellant alone on the highway, it is entirely possible
    that the appellant would have gotten back into his SUV and continued driving on
    the highway.  Constable Foster had the power to arrest, in the circumstances.
    He detained the appellant by placing him in the back of his cruiser but did not
    handcuff the appellant, allowing him to contact a licenced driver to pick up
    the vehicles.  The power to arrest was not improperly exercised.  The arrest
    was lawful.

[48]

In
    summary, Cst. Foster had the power to arrest in the circumstances.  That power
    was not improperly exercised.  The arrest was therefore lawful.

[49]

Further,
    I see no error in the trial judges finding that the pat-down search incident
    to that arrest was lawful.  A search incident to arrest may be carried out to
    ensure the safety of the police and the public, to protect evidence from
    destruction, or to discover evidence that can be used at trial:
R. v.
    Caslake
, [1998] 1 S.C.R. 51, at para. 19.  Cst. Foster was clear in his
    evidence that he conducted the search for safety reasons relating both to
    himself and the appellant.  Cst. Foster was working alone on a busy highway,
    and he knew that he would be placing the appellant in the back of his police cruiser
    without handcuffs.  Cst. Foster believed, and in the circumstances had a
    reasonable basis for believing, that a protective pat-down search would serve
    the purpose of ensuring officer safety; he was therefore entitled to engage in
    such a search:
Caslake
, at paras. 19-20.

[50]

The
    appellant submits that the pat-down search went too far  that Cst. Foster was
    not permitted to check the appellants wallet and package of cards.  The
    appellant also notes that Cst. Foster did not specifically address his reason
    for searching the wallet and package of cards in his testimony.

[51]

The
    appellant made these same submissions before the trial judge, who rejected them
    and found the search to be reasonable.  I see no basis on which to interfere
    with the trial judges finding.

[52]

Cst.
    Foster testified that he carried out the search incident to arrest for safety
    reasons.  Although he did not testify directly that the same reasoning applied
    to his search of the wallet and cards, the trial judge appears to have accepted
    Cst. Fosters testimony as extending to the search of the wallet and stack of
    credit cards.  The trial judge stated that it is possible for a small item,
    such as a razor blade, to be located in a wallet or among a stack of credit
    cards.  Accordingly, the trial judge said, it was unrealistic to expect the
    officer to have refrained from examining those items located in the appellants
    coat pockets in the course of a pat-down search for weapons.

[53]

The
    trial judge made these findings in the context of a pat-down search that had
    been conducted in a reasonable manner.  Cst. Foster patted down the appellants
    waistband and the pockets of his jeans.  The appellant was wearing a large,
    puffy winter coat.  Cst. Foster reached into the front pockets of the coat and
    removed a wallet, USB key and package of cards bound together by an elastic
    band.  He did not remove other items from the pockets and he did not ask the
    appellant to remove any clothing for closer inspection.

[54]

As
    for Cst. Fosters observation of the names on the cards, I do not see how Cst.
    Foster could have checked the package of cards for possible weapons without
    looking at the cards and, in doing so, noticing the names recorded on them.

[55]

As
    there is no error in the trial judges finding that the pat-down search was
    valid, no issue as to the exclusion of the evidence resulting from this search
    arises.  Accordingly, in my view, this ground of appeal fails.

Issue #2: Was it an error to fail to
    exclude the evidence obtained from the searches of the SUV and the USB key, pursuant
    to s. 24(2) of the
Charter?

[56]

Whether
    evidence obtained in violation of the
Charter

should
    nonetheless be admitted into evidence requires the court to assess and balance
    the effect of admitting the evidence on societys confidence in the justice
    system, having regard to: (i) the seriousness of the
Charter
-infringing
    conduct, (ii) the impact of the breach on the
Charter
-protected
    interests of the accused, and (iii) societys interest in adjudication of the
    case on its merits:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 71.

[57]

In
    terms of non-bodily physical evidence obtained contrary to s. 8 of the
Charter
,
Grant
, at paras. 112-15, offers this guidance.  The seriousness of the
Charter
-infringing conduct will depend on the extent to which the
    conduct can be characterized as deliberate or egregious.  The impact of the
    violation will depend on the degree to which the accuseds reasonable
    expectation of privacy was infringed.  And, given the reliability of physical
    evidence, societys interest in having a case adjudicated on its merits will tend
    to weigh in favour of admission.

[58]

In
    my view, the trial judge did not err when he decided not to exclude the SUV
    evidence or the USB key evidence pursuant to s. 24(2).

The SUV Evidence

[59]

It
    will be recalled that the trial judge gave his s. 24(2) ruling and then amended
    that ruling because of the release of
Loewen
.  In his amendment, the
    trial judge deals with the SUV evidence.  At para. 2 of the amended ruling, he
    states that he would not repeat the facts on which the first ruling was made.
    Consequently, in my view, it is appropriate to read the first ruling, together
    with the amended reasons, in determining how the trial judge dealt with the
    evidence from the SUV searches.

[60]

The
    trial judge found that Cst. Foster did not have reasonable and probable grounds
    to arrest the appellant for possession of stolen credit cards based on his
    observation of the disassembled cell phone, the SIM card and the manila
    envelopes of the approximate size of a credit card, which were located in the
    front seat of the SUV.  However, he found that Cst. Foster was entitled to
    search the back seat of the SUV, incident to the appellants arrest for driving
    with a suspended drivers licence.  The court documents on the back seat of the
    SUV had been in plain view when Cst. Foster approached the vehicle and appeared
    to be
Provincial Offences Act

notices.

[61]

The
    trial judge found that upon opening the rear door, Cst. Foster saw the green
    fabric box and its contents.  At that point, Cst. Foster would have had
    reasonable and probable grounds to arrest the appellant for possession of
    stolen credit cards.  The trial judge expressly found that Cst. Foster had not
    acted in bad faith and that he subjectively believed that he had grounds to
    arrest the appellant for possession of stolen credit cards after observing the
    items on the SUVs front passenger seat and centre console.

[62]

As
    a result, he concluded that the breach was not serious.  I agree.

[63]

I
    also agree with the trial judge that the appellants reasonable expectation of
    privacy in respect of objects in plain view in a vehicle being driven on the
    highway was relatively low.

[64]

Further,
    the evidence found in the SUV was reliable physical evidence that was directly
    relevant to the credit card fraud charges against the appellant.  I agree with
    the trial judge that this factor militates against exclusion of this evidence.

[65]

The
    trial judge balanced these factors and concluded that exclusion was not
    warranted.  I see no basis for interfering with his determination.

[66]

Similar
    reasoning applies to the search that was carried out after the SUV was towed.  A
    search incident to arrest may be carried out a reasonable period of time after
    the arrest, and while a substantial delay in carrying out the search may
    cause the court to draw an inference that the search is not sufficiently
    connected to the arrest, this inference can be defeated by a reasonable
    explanation for the delay:
Caslake
, at para. 24.

[67]

Even
    if the police failed to complete the search of the SUV within a reasonable
    period of time after the appellants arrest for credit card fraud, there was a
    reasonable explanation for the delay.  Cars were passing at a high rate of
    speed near where Cst. Foster was standing.  The appellants mother had arrived
    and was walking around the highway.  In the circumstances, there was good
    reason to halt the search of the SUV and arrange to have the vehicle towed so
    that the search could be continued in a safer location.

[68]

Accordingly,
    the delay in completing the search of the SUV does not affect the seriousness
    of the
Charter
-infringing conduct.

The USB Key Evidence

[69]

A
    USB key (also called a flash drive) is a portable digital storage device.  It
    can be used to transport files from one computer to another, for instance, from
    a home computer to a work computer.  It can also be used to back up information
    from ones home or work computer.

[70]

In
R. v. Vu
, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras.
41-44,
    the Supreme Court of Canada reviewed the privacy considerations that apply to
    searches of personal computers.  For the following reasons, in my view, many of
    the same privacy considerations are engaged in searches of USB keys.

[71]

First,
    a USB key can store a significant amount of data.  USB keys commonly hold
    anywhere from one to ten gigabytes of data, and USB keys with a storage
    capacity of over one terabyte exist.  It seems likely that their storage
    capacities will only increase over time.

[72]

Second,
    data can be left on a USB key without a users knowledge.  This data includes
    information about the date and time a file was created or modified and
    information about the user who created or modified that file.

[73]

Third,
    a user does not have complete control over which files an investigator will be
    able to find on a USB key.  Data can be salvaged from a USB key through
    forensic analysis even after a user has deleted or saved over it.

[74]

It
    is true that a USB key is not a home computer or a cell phone.  Thus, it may
    not always contain personal information, like a list of contacts, the contents
    of past communications, and information about an individuals web searching
    habits.

[75]

On
    the other hand, however, a persons personal USB key arguably engages more
    serious privacy interests than a work computer.  The two key reasons why
    individuals have a somewhat diminished reasonable expectation of privacy in a
    work computer are that a work computer is not actually owned by the employee
    who uses it, and the employees use of the work computer is often subject to
    terms and conditions imposed by the employer:
R. v. Cole
, 2012 SCC 53,
    [2012] 3 S.C.R. 34, at paras. 49-52 and 92.  Neither of these considerations
    apply to personal digital storage devices like USB keys.

[76]

With
    this in mind, let us consider the trial judges s. 24(2) ruling in respect of
    the USB key evidence.

[77]

In
    respect of the first factor, namely, the seriousness of the
Charter
-infringing
    conduct, the trial judge noted that the
Polius
and
Manley

decisions
    were not rendered until after the USB key search had been conducted.  Further,
    he noted the evidence showing that following the release of
Polius
,
    the Waterloo Regional Police Service adopted a policy of securing seized
    electronic devices and obtaining a search warrant prior to examining their
    contents.  He concluded that rather than being insensitive to the requirements
    of the
Charter
, the Waterloo Regional Police Service was compliant
    with such requirements, once it was aware of them.  He therefore found that the
    failure to obtain a search warrant before examining the contents of the USB key
    was not serious.

[78]

I
    see no error in the trial judges assessment of the first factor.  I would
    simply add to the findings of the trial judge that in conducting the search,
    the police officers believed they were continuing a search incident to Cst.
    Fosters lawful arrest and that the then-existing case law permitted them to
    conduct the search.

[79]

The
    appellant notes, however, that the search of the USB key continued for a week
    after the appellants arrest, and submits that this delay shows that police
    were acting either negligently or in bad faith.  He relies on
Caslake

for this submission, noting that
Caslake

directed that,
    absent a reasonable explanation, a search incident to arrest should be carried
    out in a reasonable time following arrest.

[80]

The
    seven-day delay in the USB search was due to carrying out a forensic analysis
    of the USB key.  The law with respect to how much of a delay is appropriate in
    carrying out a forensic analysis of items seized in a search incident to arrest
    remains unclear.  In
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont.
    C.A.), this court declined to decide whether a delay of several months in
    carrying out forensic analysis of an accuseds clothing (seized incident to
    arrest) violated s. 8 of the
Charter
, but concluded that the evidence
    obtained would be admissible under s. 24(2) in any event (para. 115).  Trial
    and appellate courts in other provinces have divided on the appropriateness of
    various periods of delay in subjecting evidence obtained incident to arrest to
    forensic analysis: see, for example,
R. v. Giles
, 2007 BCSC 1147, at
    para. 57; and
R. v. Hiscoe
, 2013 NSCA 48, 297 C.C.C. (3d) 35, at para.
    66.

[81]

Given
    the still developing state of the law, I am not prepared to find that the
    police acted in bad faith or negligently based on the delay in completing the search
    of the USB key.

[82]

I
    turn now to the second
Grant

factor, the impact on the
    appellants
Charter
-protected interests.  The trial judge found that
    the appellant had a low expectation of privacy because the USB key was carried
    in a coat pocket and the data on the key was not password protected.  He
    concluded that the impact on his privacy interests was not significant.

[83]

For
    the reasons already given, I have a different view of the appellants privacy
    interests in the USB key. In my view, the impact of the search on those
    interests is significant.

[84]

As
    the trial judge noted in relation to the third
G
ran
t
factor,
    the evidence from the USB key is reliable.  To this I would add that the
    evidence was very important to the Crowns case.

[85]

After
    weighing each factor and balancing them, I arrive at the same conclusion as the
    trial judge: the societal interest in having these types of cases adjudicated
    on their merits outweighs the seriousness of the breaches.  While there are two
    breaches in this case (searches of the SUV and the USB key) there is no
    cumulative impact as they are distinct in nature and, in both instances, the
    police acted in good faith.

Issue #3: Was it an error to convict the appellant under s.
    342(3) of the
Code
for unauthorized possession of credit card data,
    when the credit cards were blocked and track data not present?

[86]

Section
    342(3) of the
Code
reads as follows:

Every person who, fraudulently and without colour of
    right, possesses, uses, traffics in or permits another person to use credit card
    data, including personal authentication information, whether or not the data is
    authentic,
that would enable a person to use a credit card
or to obtain
    the services that are provided by the issuer of a credit card to credit card
    holders is guilty of

(a) an indictable offence and is liable to
    imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.
    [Emphasis added.]

[87]

The
    appellant does not dispute the findings that he was in possession of credit
    card data and that his possession was fraudulent and without colour of right.
    He submits, however, that credit card data can only enable a person to use a
    credit card, within the meaning of s. 342(3), if the data is sufficient to
    ensure the successful use of a credit card.  Accordingly, he says, he could not
    be convicted unless the Crown proved that all of the track data encoded on the
    cards found in his possession  including the routing data  matched data
    associated with valid accounts, and that the credit cards had not been blocked
    or cancelled.  This the Crown failed to do and, he contends, the convictions
    must be set aside.

[88]

I
    do not accept this submission.  This courts decision in
Kokoouline
is
    a full answer to it.

[89]

In
Kokoouline
, this court held that even where credit cards have been
    blocked, and could not be used successfully, a conviction under s. 342(3) could
    result.  At para. 6 of
Kokoouline
, this court states, the question of
    whether [credit] cards could be successfully used  is not relevant to the
    offence created by s. 342(3).  Thus, even if an account has been blocked or a
    card cancelled, a conviction under s. 342(3) can be made out.  The same logic
    applies where the reason the data might not enable the successful use of a
    credit card is that the track data did not match that of a valid account.

[90]

The
    wording of s. 342(3) makes this clear.  It provides that the offence is made
    out whether or not the data is authentic.  Accordingly, an accused can be
    convicted whether or not the data in the accuseds possession matches perfectly
    with genuine bank accounts.

[91]

In
    any event, I would simply note that there was evidence of successful use for
    two of the three counts.

[92]

Accordingly,
    the trial judge made no error in convicting the appellant under s. 342(3).

THE SENTENCE APPEAL

[93]

The
    appellant was involved at a high level in a credit and debit card skimming
    operation, which involved obtaining credit card data fraudulently, manufacturing
    credit and debit cards, and distributing those credit and debit cards.

[94]

The
    sentencing judge was fully alive to all of the relevant aspects of the appellants
    situation, including that he had no previous criminal record.  Contrary to the
    appellants submission, the sentencing judge did not count the appellants
    apparent lack of remorse as an aggravating factor; he was simply noting that
    the appellant could not rely on remorse as a mitigating factor.

[95]

I
    see no error in the sentencing judges finding that a conditional sentence
    would not adequately reflect the principles of denunciation and deterrence.
    Nor do I see any basis on which to interfere with the sentence that was imposed.

[96]

This
    court has repeatedly stated that appellate deference is owed to a trial judges
    sentencing decision.  As explained in
R. v. Ramage
, 2010 ONCA 488, 257
    C.C.C. (3d) 261, at para. 70:

Appellate deference to the trial judges sentencing decision
    makes good sense.  Sentencing is a fact-specific exercise of judicial discretion.
    It is anything but an exact science.  In the vast majority of cases, there
    is no single sentence that is clearly preferable to all others.  Instead,
    there is a range of reasonable options from which the trial judge must make his
    or her selection.    Absent the discipline of deference, sentence
    appeals would invite the appellate court to repeat the same exercise performed
    by the trial judge, with no realistic prospect that the appellate court would
    arrive at a more appropriate sentence.  Appellate repetition of the
    exercise of judicial discretion by the trial judge, without any reason to think
    that the second effort will improve upon the results of the first, is a misuse
    of judicial resources.  The exercise also delays the final resolution of
    the criminal process, without any countervailing benefit to the process.

[97]

As
    the trial judges sentencing reasons reflect no error in principle and the
    sentence he imposed was fit, there is no reason for this court to interfere
    with it.

[98]

The
    appellant sought to introduce fresh evidence showing the steps that he has
    taken towards rehabilitation following sentencing.  As already noted, the
    sentencing judge imposed a custodial sentence on the basis that a conditional
    sentence would not adequately reflect the principles of denunciation and
    deterrence.  The proposed fresh evidence cannot reasonably be expected to have
    affected the sentence.  Therefore, I would not admit it: see
R. v. Levesque
,
    2000 SCC 47, [2000] 2 S.C.R. 487, at para. 35.

DISPOSITION

[99]

Accordingly,
    I would dismiss the appeal against convictions, grant leave to appeal sentence,
    and dismiss the sentence appeal.

Released: July 17, 2014 (E.E.G.)

E.E. Gillese
    J.A.

I agree. Paul Rouleau J.A.

I agree. S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Stevenson v. Smit, 2014 ONCA 521

DATE: 20140704

DOCKET: C57977

Weiler, MacPherson and Cronk JJ.A.

BETWEEN

Helen Stevenson

Respondent (Applicant)

and

Peter Smit

Appellant (Respondent)

Daniel S. Melamed and Charley Levitan, for the appellant

Herschel I. Fogelman and Oren Weinberg, for the
respondent

Heard: July 3, 2014

On appeal from the order of Justice Carolyn Horkins of
the Superior Court of Justice, dated October 29, 2013, dismissing appeals from
the order of Justice H.L. Katarynych of the Ontario Court of Justice, dated May
17, 2012.

By the Court:

I.        Background

[1]

The parties are former spouses.  They married in 1989, separated in 2003
and divorced in 2004.  There are three children of the marriage, aged 19, 18
and 14, respectively.

[2]

In 2005, following their separation, the parties entered into a
separation agreement (the Agreement).  It provided, among other matters, that
neither party would pay child support in accordance with the Child Support
Guidelines (the Guidelines).  Rather, the parties agreed that they would
share equally all major expenses concerning the children of the marriage,
including private school tuition, activity fees, camp fees, and post-secondary
education expenses.

[3]

When the Agreement was signed, the appellant, Peter Smit (the father),
was engaged in forming a new company, and had minimal income (his income had
been declining for four years).  After execution of the Agreement, his income
in most years continued to decline.  He met his share of the childrens special
expenses by drawing down on or liquidating some of his then considerable
capital assets.

[4]

In this fashion, the father met his obligation to pay 50% of the
childrens special expenses until 2008, when he defaulted and informed the
respondent, Helen Stevenson (the mother), that he could no long satisfy his contractual
child support obligations.

[5]

After the fathers default, the mother applied to the Ontario Court of
Justice for an order quantifying the fathers arrears of child support for
enforcement purposes.  The father countered with an application to terminate
his child support obligations under the Agreement as of November 1, 2008, and
to substitute in their stead a requirement that he pay child support in
accordance with the Guidelines.  The father claimed that he had [lost] the
ability to liquidate capital to support his children, that he had insufficient
income to pay the agreed child support, and that these allegedly unforeseen and
unanticipated factors constituted material changes in circumstances justifying
relief from his child support obligations under the Agreement.

[6]

The application judge disagreed.  After a three-day trial, she held that
the father had failed to establish a material change in circumstances.  She
therefore dismissed his application to change his child support obligations
under the Agreement.  She also set a schedule for the fathers payment, over
time, of his arrears in child support and for his future payment of his share
of the childrens ongoing special expenses.

[7]

The father appealed.  By order dated October 29, 2013, Horkins J. of the
Superior Court of Justice dismissed his appeal.

[8]

The father appeals to this court.  Following oral argument, we dismissed
his appeal, for reasons to follow.  These are those reasons.

II.       Issues and Discussion

[9]

The father argues, first, that the application and appeal judges erred
by failing to find a material change in circumstances as contemplated by s. 14
of the Guidelines.  In the alternative, he submits that foreseeability of a
change in circumstances is not the appropriate test for variation under the
Guidelines of contractual child support obligations.

[10]

In
the circumstances of this case, we disagree.

[11]

The
application judge found that the fathers need to resort to capital to meet his
child support obligations, the fact that he was in an income-earning slump,
and the fact that his income was in decline were factors plainly known to the
parties at the time they entered into the Agreement.

[12]

The
application judge further found that the father had untapped income-earning
potential and that he had chosen to resort to his capital (including an
equalization payment in the approximate sum of $1 million paid to him by the
mother) to satisfy his child support obligations and to finance his own
lifestyle, as well as his various business ventures.

[13]

These
findings were amply supported by the evidentiary record.  They are dispositive
of the fathers first ground of appeal.  They compelled the conclusion that the
father failed to establish a material change in circumstances within the
meaning of that term under the applicable authorities.  The appeal judge did
not err in deferring to this central finding by the application judge.

[14]

Nor
can the fathers claim that the application and appeal judges erred in their
appreciation of the governing test for the variation of special contractual
child support obligations on the basis of a material change in circumstances be
accepted.  Both judges recognized that this test is definitively set out in
Willick
v. Willick
, [1994] 3 S.C.R. 670.  Foreseeability lies at the heart of this
test: if the matter relied upon as constituting a material change in
circumstances was known at the time of contract formation, it cannot ground a
variation request.

[15]

The
father next argues that the judges below both erred, in effect, by requiring
him, without imputing income to him, to comply with a child support order that
he cannot possibly honour.

[16]

We
do not accept this submission.  The application judge considered, and rejected,
the fathers contention that the mothers application constituted a request to
impute income to him.  She pointed out, correctly in our view, that imputation
of income was not the task at hand.  The issue before the application judge
was not whether the father, in fact, was positioned financially to meet his agreed
child support obligations.  Rather, the issue was whether, at the time the
Agreement was entered into, it was objectively foreseeable that the father
would be required to encroach on his capital to satisfy those obligations,
given that he did not then and may not in the future have the income to do so.
No material change in circumstances having been demonstrated, imputation of
income to the father was essentially irrelevant.

[17]

In
our view, the fathers remaining grounds of appeal are similarly without
merit.  Contrary to his contention, the application judge did not fail to
consider the Guidelines.  To the contrary, she expressly recognized that, in
this case, the parties freely and knowingly elected to enter into special
arrangements regarding child support, outside the parameters of the
Guidelines.  The parties were entitled to do so, as long as the childrens
needs for and entitlement to support were not bartered away.  That did not
occur in this case.

[18]

Finally,
the fathers complaint that the application judge erred by failing to credit
him for the full amount of the private school bursaries that were obtained for
the children also fails.  On our reading of the transcript, the mother did not
concede that the father was entitled to full credit for the bursaries.  In any
event, the application judges treatment of the issue  according each parent
equal credit for the bursaries  cannot be faulted.

III.      Disposition

[19]

For
the reasons given, the appeal is dismissed.  The respondent is entitled to her
costs of this appeal and of the motion for security for costs, fixed in the
total amount of $12,500, inclusive of disbursements and H.S.T.

Released:

JUL -4 2014                                     Karen
M. Weiler J.A.

KMW                                               J.C.
MacPherson J.A.

E.A.
Cronk J.A.