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Case Name:

R. v. Siemens
Between Her Majesty the Queen, and Lindsay Siemens [2011] S.J. No. 406 2011 SKPC 57

Saskatchewan Provincial Court Saskatoon, Saskatchewan D.E. Labach Prov. Ct. J. May 20, 2011. (57 paras.) Criminal law -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Legal rights -Protection against unreasonable search and seizure -- Application by accused, charged with trafficking methamphetamine, to exclude evidence obtained from Budget Rent-a-Car dismissed -Police obtained the accused's name, address, photo, Mastercard number and driver's license from his lease agreement with Budget Rent-a-car, after an undercover investigator observed drug traffickers purchase methamphetamine from an individual in the rental car -- Accused had no reasonable expectation of privacy in the information contained in the lease agreement -- Company complied with privacy legislation, police had the right to request the information, contract contained the right to disclose the information to the police and the information was not intrusive to accused's privacy. Information technology -- Personal information and privacy -- Reasonable expectation of privacy -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Right to privacy -Application by accused, charged with trafficking methamphetamine, to exclude evidence obtained from Budget Rent-a-Car dismissed -- Police obtained the accused's name, address, photo, Mastercard number and driver's license from his lease agreement with Budget Rent-a-car, after an undercover investigator observed drug traffickers purchase methamphetamine from an individual in the rental car -- Accused had no reasonable expectation of privacy in the information contained in

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the lease agreement -- Company complied with privacy legislation, police had the right to request the information, contract contained the right to disclose the information to the police and the information was not intrusive to accused's privacy. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s. 24(2) Controlled Drugs and Substances Act, S.C. 1996, c. 19, Criminal Code, R.S.C. 1985, c. C-46, s. 47.014, s. 47.014(1) Personal Information Protection and Electronic Document Act, s. 2(1), s. 4(1), s. 5(1), s. 7(3), s. 7(3)(c.1), s. 7(3)(c.11) Counsel: Lynn Hintz and Bruce Bauer, for the Crown. Kevin Hill, for the Accused.

DECISION ON VOIR DIRENO. 1 D.E. LABACH PROV. CT. J.:-INTRODUCTION 1 At the outset of his trial on a number of drug-related and other charges counsel for the accused, Lindsay Siemens, advised that he would be taking issue with the admissibility of certain evidence obtained by the police from a Budget Rent-a-Car outlet in British Columbia. In his view, this information was obtained in violation of the accused's section 8 Charter right and as such, it, and any derivative evidence obtained as a result of it, should be excluded from the trial pursuant to section 24(2) of the Charter. The Crown acknowledged receiving proper notice of this Charter application. 2 The trial proceeded. At the time the Crown wished to tender the information obtained from Budget Rent-a-Car, a voir dire was commenced to determine the Charter issues. While the voir dire surrounded the admissibility of the information seized from the rental car company, it was agreed by counsel that there were other exhibits that flowed from this information that the Defence would

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be asking to exclude if the Charter breach was proven. Defence counsel advised said he would outline what specific pieces of evidence he wanted excluded when he made his closing argument. After the evidence on the voir dire was completed, Crown and Defence advised that they would make closing argument on the issues on the voir dire at the end of the trial proper. It is on the issues on this voir dire that I now render my decision. FACTS 3 The Saskatchewan Combined Forces Special Enforcement Unit (CFSEU), a specialized police unit comprised of members from a number of police forces throughout the province and mandated to investigate organized crime and drugs, was involved in an investigation named Project DECOY from August 2009 to March 2010. The investigation targeted a number of individuals in the Saskatoon area who were suspected of trafficking in methamphetamine (crystal meth). 4 On November 2, 2009, police made arrangements for a female undercover officer to be introduced to one of the targets in a holding cell at the Saskatoon RCMP Detachment. This target, a young lady by the name of Alyssa Holmes, and the undercover officer struck up a conversation. Eventually the conversation turned to a discussion about crystal meth. When Ms. Holmes found out what the officer was paying for a gram of crystal meth, she said she could do better. She gave the officer her phone number and told her to call when she got out. 5 A few days later, the undercover officer followed up on this invitation and made contact with Ms. Holmes. On November 13, 2009, the undercover officer purchased two grams of methamphetamine from Ms. Holmes. Further to this purchase, there were discussions about the officer wanting to purchase more crystal meth from her. The relationship between them was cemented. 6 Over the next days, there were a number of text messages between the undercover officer and Ms. Holmes wherein Ms. Holmes advised that she was about to purchase a large amount of crystal meth. The drugs were coming from British Columbia from someone Ms. Holmes referred to as her "BC buddy". She wanted to know if the undercover officer wanted to purchase some of these drugs from her. On November 16, 2009, she disclosed that the crystal meth was on its way but that her BC buddy would not be coming all the way to Saskatoon. She texted the undercover officer that her and her boyfriend, Clayton Soare, another target in the investigation, would be driving a few hours away from Saskatoon to meet this BC buddy. 7 As a result of this information, CFSEU officers began surveilling Ms. Holmes and Mr. Soare. They observed Mr. Soare attend at a branch of the Toronto-Dominion bank in Saskatoon and withdraw nineteen $100 bills. Shortly thereafter Mr. Soare picked up Ms. Holmes at their residence in a dark blue Sebring, Saskatchewan licence plate 415 GDW. They ran a number of errands and then were seen parking close to a yellow van associated to another target of the investigation, a fellow by the name Clayton McLeod. Officers watched Ms. Holmes going into the yellow van and then returning to the Sebring.

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8 The surveillance team lost the Sebring for approximately an hour. They guessed that Ms. Holmes and Mr. Soare were heading towards Calgary and took up positions on the main highway from Saskatoon to Calgary. At Rosetown, CFSEU officers located the Sebring heading westbound. They followed Ms. Holmes and Mr. Soare to Drumheller, Alberta where the Sebring stopped at a Mac's/Husky Service Station. A short time later, a red four door Chevrolet Cobalt, British Columbia licence plate 957 LBT arrived at this service station and the Sebring and the Cobalt then left together heading west out of Drumheller on Highway 10. 9 The surveillance team followed the vehicles to Rosedale, a small town some five kilometres from Drumheller. There, the vehicles parked in front of the Roadhouse Saloon. The driver of the Cobalt got out and went and sat in the Sebring with Ms. Holmes and Mr. Soare. A few minutes later, this person got out, went back to the Cobalt and then into the bar. Officers noted this person to be a male in his late 30's or early 40's with a shaved head and some facial hair. 10 Ms. Holmes and Mr. Soare did not get out of the Sebring. After this male exited the Sebring, officers observed the Sebring travel back to Saskatoon. Ten minutes after the Sebring left Rosedale, Ms. Holmes texted the undercover officer to meet her at her home in Saskatoon in four hours to do a deal for some crystal meth. 11 At 1:28 a.m. on November 17, 2009, the undercover officer attended at 436 Berini Drive in Saskatoon, the Holmes/Soare residence, and purchased 28 grams of crystal meth for a total price of $3,500.00. Ms. Holmes told the undercover officer that the meth was from BC. 12 No one on the surveillance team saw any drugs or money change hands while they observed Mr. Soare and Ms. Holmes meeting with the male from the red Cobalt. None of the officers observed what they were doing or heard what was said between them. However, based on the information they had from their undercover officer, the officers believed Ms. Holmes and Mr. Soare were purchasing a large amount of crystal meth from this male. The male was not an identified target in Project DECOY nor had the CFSEU officers seen him before. Based on their belief, they wanted to know who he was. 13 CFSEU member, Constable Hicks, was tasked with obtaining this information. She ran the BC licence plate from the red Cobalt on a police data base and found out that this vehicle was registered to Phelps Leasing Ltd. in Richmond, BC. Further investigation determined that Phelps Leasing ran a number of Budget Rent-a-Car franchises in that province. 14 On November 18, 2009, Constable Hicks contacted David Chang, the business manager for Phelps Leasing. She identified herself as a police officer and asked for information regarding the person who had rented this red Cobalt on November 16, 2009. Mr. Chang asked her why she wanted this information and she told him that the vehicle was involved in a drug trafficking investigation. After she told him this, he advised her that the red Cobalt, BC licence plate 957 LBT, had been rented to an individual by the name of Lindsay Siemens. He provided her with the driver's license number that Mr. Siemens had given at the time of renting the vehicle and some other

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personal information that had been obtained from Mr. Siemens for the rental. Constable Hicks requested that Mr. Chang send her a copy of the rental contract for the Cobalt. He told the officer that she would need to fax him a formal request for that information. 15 The red Cobalt was rented from Phelps Leasing's Budget Rent-a-Car outlet in Langley, British Columbia. At the time of the rental, the accused signed a contract and provided a valid driver's license and two other pieces of identification. The outlet took a copy of his driver's license and an imprint of the his credit card before giving the car keys to him. The original contract and copies of any other documents in relation to the rental were kept at Phelps Leasing main office in Richmond. Upon receiving the faxed request from the officer, Mr. Chang retrieved the original contract that was signed by Mr. Siemens. He forwarded it on to Constable Hicks. 16 The information obtained from Mr. Chang was of considerable significance in the Project DECOY investigation. From the rental contract, officers obtained Mr. Siemans name, address, driver's licence number and Mastercard number. Attached to the contract was a photocopy of his driver's licence which included his picture. Constable Hicks showed this picture to the officers who had surveilled Mr. Soare and Ms. Holmes to Rosedale, Alberta and they identified Mr. Siemens as the male who had met these two at the Husky Service Station in Drumheller and then later, outside the bar in Rosedale. This led to further investigation of Mr. Siemens which in turn led CFSEU officers to conclude that the accused was the BC supplier of crystal meth to Ms. Holmes and other targets in their investigation. ISSUES a) Was the seizure of the Budget Rent-a-Car information a violation of the accused's section 8 Charterright? b) If there was a violation of the accused's section 8 Charter right, should the evidence obtained as a result of the Charter breach be excluded pursuant to section 24(2) of the Charter?

ANALYSIS a) Was the seizure of the Budget Rent-a-Car information a violation of the accused's section 8 Charter right?

17 There are a number of cases from the Supreme Court of Canada defining the right protected by section 8 of the Charter and providing guidance to judges as to how to determine if that right has been breached: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Tessling, [2004] 3 S.C.R. 432; R. v. Kang-Brown, [2008] 1 S.C.R. 456; R. v. Patrick, [2009] 1 S.C.R. 579; R. v. Gomboc, [2010] 3 S.C.R. 211. 18 Section 8 of the Charter protects an individual's right to privacy. However, that right to privacy is not absolute. The Charter only protects a reasonable expectation of privacy. See Hunter v. Southam Inc., supra, at pages 159 to 160.

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19 There are two distinct questions which must be answered in any section 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. The Court need only consider the second question if the first question is answered in the affirmative. Where no reasonable expectation of privacy is established, no threshold justification is required because the search does not trigger Charterprotection. See Edwards, supra at paragraphs 33 and 45; Tessling, supra at paragraph 33; Patrick, supra at paragraphs 27 and 28. 20 Privacy is a varied and wide ranging concept. There are a number of privacy interests protected by section 8, namely: (i) (ii) Personal privacy, involving bodily integrity and the right not to have our bodies touched or explored; Territorial privacy, involving varying expectations of privacy in the places we occupy, with privacy in the home attracting heightened protection because of the intimate and private activities taking place there; Informational privacy, involving the claim of individuals, groups or institutions to determine for themselves, when, how and to what extent information about them is communicated to others.

(iii)

See Tessling, supraat paragraphs 20 to 23; Gomboc, supraat paragraph 19. 21 Whether an individual had a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances in any given case. Useful factors to consider in assessing the totality of the circumstances are presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, the ability to regulate access to the place, the existence of a subjective expectation of privacy and the objective reasonableness of that expectation. See Edwards, supra at paragraph 45. 22 In a section 8 challenge, it is the accused's responsibility to show on a balance of probabilities that he has a reasonable expectation of privacy in the place searched or the items seized by the police. If the accused is able to demonstrate this and the search and seizure was warrantless, then the burden shifts to the Crown to show that the search was reasonable. See Collins, supraat paragraphs 21 and 22. 23 A search involving a Charter protected privacy interest will be reasonable if the police are authorized by law to conduct a search, if the law authorizing the search is reasonable and if the search is conducted in a reasonable manner. 24 In the present case, Constable Hicks seized personal information of the accused from Budget Rent-a-Car that the accused had to provide in order to rent a car. The privacy interest asserted by the accused is a claim to informational privacy. The first question then in determining if the accused's section 8 Charter rights in fact were violated, is whether the accused had a reasonable expectation

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of privacy in the information seized by Constable Hicks. Reasonable expectation of privacy 25 Not all information that a person may wish to keep confidential is protected by section 8 of the Charter. In R. v. Plant, [1993] 3 S.C.R. 281 (S.C.C.), another section 8 Charter case, the Supreme Court held that the accused did not have a reasonable expectation of privacy in computerized records of the local electrical utility which outweighed the state interest in enforcing the laws relating to narcotics offences. Speaking for the majority, Mr. Justice Sopinka, said at page 16: .... I do agree with the aspect of the Miller decision which would suggest that in order for constitutional protection to be extended, the information seized must be of a "personal and confidential" nature. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. ... 26 While the Supreme Court in Edwards set forth a number of factors to consider to determine if an accused had a reasonable expectation of privacy in the place searched and/or the items seized, the same Court expanded on those factors in Tessling. In Patrick, supra, the Supreme Court dealt with whether an accused had a reasonable expectation of informational privacy with respect to his garbage and the information stored therein. The Court refined the Tesslingfactors to address informational privacy. At paragraph 27, the Court listed the factors as follows: 1. 2. 3. 4. What was the nature or subject matter of the evidence gathered by the police? Did the appellant have a direct interest in the contents? Did the appellant have a subjective expectation of privacy in the informational content of the garbage? If so, was the expectation objectively reasonable? In this respect, regard must be had to:

a)

b) c) d)

The place where the alleged "search" occurred; in particular, did the police trespass on the appellant's property and, if so, what is the impact of such a finding on the privacy analysis? Whether the informational content of the subject matter was in public view; Whether the informational content of the subject matter had been abandoned; Whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?

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e) f) g)

Whether the police technique was intrusive in relation to the privacy interest; Whether the use of this evidence gathering technique was itself objectively unreasonable; Whether the informational content exposed any intimate details of the appellant's lifestyle, or information of a biographic nature.

27 In order to determine whether the accused had a reasonable expectation of informational privacy with respect to the Budget Rent-a-Car contract he executed to rent the red Chevrolet Cobalt, the Patrick factors are particularly applicable. I turn now to an analysis of those factors in light of the evidence. 28 The subject matter of Constable Hicks search in this case was a copy of the Budget car rental agreement for the red Chevrolet Cobalt, British Columbia license 957 LBT and the information contained therein. This included the name of the person who rented the Cobalt, their address, the date it was rented, the date it was due back, where it was rented from, an imprint of the renter's credit card and a photocopy of the renter's driver's license. As the accused Lindsay Siemens was the renter, he had a direct interest in all this information. 29 The accused did not testify on the voir dire so there is no direct evidence before the Court that he had a subjective expectation of privacy in the information he provided Budget Rent-a-Car to rent the Cobalt. However, when a person provides such personal information as their address, contact information, credit card number and driver's license to rent a vehicle, I think it is reasonable for that person to assume that that information is not going to be shared with others and that the contract they signed will not be given to others. Mr. Chang confirmed this when he testified that this information would not be given to an ordinary citizen who asked for it. 30 In this case, there is evidence of the contractual relationship between the accused and Budget Rent-a-Car. There is nothing in the contract that the accused signed indicating that Budget would share this information with anyone else. 31 At the bottom of page 1 of the contract there is a box entitled "Privacy Statement". It reads as follows: By my signature, I acknowledge receipt of all notices that appear on this rental document, agree to the terms and conditions on the separate rental documents jacket provided and agree to be bound by your Privacy Policy available from you.

PRIVACY: By signing this form: I consent (1) to you "Budget" collecting, using and disclosing my personal information (PII) for the purpose of servicing and administering my rentals and related

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purposes as stated in Budget Privacy Policy, including Budget's business management, development and protection; and (2) to Budget using and disclosing my PII to send me information about products and services provided by Budget, Budget licensor, affiliates, and Budget system licensees. Budget may also use (but not disclose) my PII to offer me Budget system program partner organizations products and services. (highlights are mine) 32 Budget's Privacy Policy is a separate document from the contract that a person signs to rent one of their vehicles. A copy of Budget's Privacy Policy was tendered as an exhibit on the voir dire. On page 2 of the policy it states: We may disclosure your PII to other related and non-related organizations including: .... * To government, regulatory and law enforcement agencies where the disclosure is required or authorized by law; ...

This appears to be the only indication that Budget could share the accused's personal information with the police. However, there is no evidence before me that the accused was given a copy of Budget's Privacy Policy, that this paragraph was even brought to his attention or that he ever accessed and read the Privacy Policy. As a result, I cannot conclude that he was aware of this specific paragraph indicating that Budget would share the information from his rental contract with the police in certain circumstances. 33 Since the contract the accused signed does not specifically indicate that Budget may share the information contained therein with the police and there is no evidence that the accused was aware of the Budget Privacy Policy, it is reasonable to infer that the accused did not expect that the personal information he provided to rent the Cobalt would be provided to anyone. 34 While I am satisfied that the accused had a subjective expectation of privacy in this information, I am not satisfied that it was objectively reasonable. The information was in the hands of a third party, Phelps Leasing Ltd. There was no intrusion onto the accused's property or into his home or possessions to get it. Nor did the police have to violate his bodily integrity to obtain it. The information was kept at the corporate head office of Phelps Leasing in Richmond, British Columbia. This is where they kept all of their rental contracts in relation to the different Budget Rent-a-Car outlets they ran. The police simply contacted Phelps Leasing's head office, explained that they wanted the information as a result of a drug investigation and Phelps Leasing provided them the information. 35 The accused did not throw this information away or relinquish his right to it by providing it to

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Phelps Leasing. He gave it to them because without doing so, he would not have been able to rent a vehicle from them (or from any other rental car company for that matter). 36 Mr. Chang, the business manager for Phelps Leasing, said that they did not make this information to the ordinary public. However, according to their rental contract and Budget's Privacy Policy, Phelps Leasing may make the information available to a select group of organizations for the reasons set forth therein. 37 Looking at the contract between the accused and Phelps Leasing, it is clear that the accused did sign it in a number of places. There is no direct testimony that the numerous signatures on the contract are his, but the contract is in the accused's name and a copy of the picture driver's license of the accused is attached to the contract. Not only is the signature on the attached copy of the driver's license the same as the signature on the contract, but the Budget employee dealing with the accused would have compared the picture on the driver's license to the person standing before him or her attempting to rent a vehicle. Had the picture not matched the person standing there, I am sure that they would not have agreed to the rental. 38 Specifically, the accused signed off on a paragraph at the bottom of the contract that stated: I have read and agreed to both sides of this agreement . ... By signing off on this paragraph, the accused was agreeing to the line in the "Privacy Statement" of the contract that he agreed to be "bound by your Privacy Policy available from you". If the accused did not receive a copy of the Privacy Policy, he should have asked for it. A reasonably prudent person would have asked for a copy of the policy to see what else they were agreeing to be bound by. Either the accused read the Privacy Policy or he did not, but should have. Irrespective of that, by signing the contract he agreed that the personal information he provided to rent the Cobalt could be disclosed to any of the organizations listed in the Privacy Policy including the police. 39 Defence counsel argued that despite what it said in the contract the accused signed and in the Budget Privacy Policy, Phelps Leasing was subject to the Personal Information Protection and Electronic Document Act (PIPEDA). The information the accused provided to Budget was personal information as defined in PIPEDA and as such, the Act created a reasonable expectation of privacy in it. In their view, the police induced Phelps Leasing to breach the accused's rights under the Act. In reaching this conclusion, they rely heavily on the decision R. v. Kwok, [2008] O.J. No. 2414 (Ont. Ct. of Justice). 40 In the Kwokcase, the accused was charged with distribution and possession of child pornography. A police officer monitoring the Internet engaged in a chat room discussion with the accused in which the latter raised the prospect of trading child pornography. The officer determined that the accused was a Rogers Internet customer. He subsequently requested subscriber information from Rogers Cable under the authority of PIPEDA. The cable company responded providing the officer with the name and address of the subscriber.

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41 In his decision Justice Gorewich concluded that personal information such as names or addresses of customers held by companies would tend to disclose intimate details of lifestyle and choices and that Mr. Kwok had a reasonable expectation of privacy in respect of his name and address. He felt that reliance on PIPEDA to obtain this information was a shortcut that should be used with great caution and that the police should have got a warrant to obtain this information. They chose not to and as a result, he found a Section 8 violation. He determined that the breach was serious and deliberate and he excluded the evidence pursuant to Section 24(2) of the Charter. 42 In my view, Kwok is of limited assistance in the present case. Judge Gorewich had no evidence about the contractual agreement between Mr. Kwok and Rogers in regards to the information he provided to the company when he became a subscriber. Secondly, based on their investigation, the police had enough information to get a warrant for Rogers to provide the subscriber's name and address. In the present case, the police did not have the necessary information for a warrant at the time they requested the information as to who had rented the Cobalt. The information they obtained from Budget only led to further investigation to determine if the accused was somehow involved in the drug trade. It was only after further evidence was obtained that the police felt they had a basis to arrest the accused for drug offences. 43 I do agree that despite was written in their Budget Contract and Budget Privacy Policy, Phelps Leasing was subject to PIPEDA. The Budget Contract was simply the terms of the contractual relationship between the accused and Phelps Leasing Ltd. operating as Budget Rent-a-Car for the rental of a red Chevrolet Cobalt. The Budget Privacy Policy was their explanation to the accused about what they could and could not do in light of PIPEDAand in certain provinces, in light of other provincial privacy legislation. This is a apparent in the second paragraph of the Privacy Policy which reads as follows: As of January 1, 2004, the Canadian federal government's Personal Information Protection and Electronic Document Act (PIPEDA), a new privacy law, will apply to Budget's Canadian operations. In addition, the province of Quebec, British Columbia and Alberta have enacted or intends to enact a private sector privacy law. The Act regulates the collection, use and handling of PII (eg. personal information about an individual) regardless of how the information exists. This policy explains how Budget protects their privacy and summarizes how and why we collect, use and disclose PII that you may provide to us. 44 I have not analyzed the entire Budget Privacy Policy to ensure that it accords with PIPEDA. That is not my function in this case. However, in terms of the issues on this voir dire,the statement in the Privacy Policy that a renter's information may be disclosed to law enforcement agencies where required or authorized by law accords with PIPEDA. 45 The sections of PIPEDA applicable on this point are as follows: 2(1) "Personal Information" means information about an identifiable individual,

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but does not include the name, title or business address or telephone number of an employee of an organization.

4(1) This part applies to every organization in respect of personal information that

(a)

the organization collects, uses or discloses in the course of commercial activities; or ...

5(1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

7(3) For the purposes of Clause 4.3 of Schedule 1, and despite the note that accompanies that clause an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

...

(ii)

the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or ...

46 It is clear from these sections that Phelps Leasing Ltd. cannot disclose personal information about a person renting one of their vehicles unless the request is made by a government institution, they have identified their lawful authority to obtain the information and they have indicated that the disclosure is requested for the purpose of carrying out an investigation relating to the enforcement of any law of Canada. These sections are not much different than the paragraph in the Budget Privacy Policy that says that Budget may disclose a rentor's personal information to any law enforcement agency where the disclosure is required or authorized by law. This section of the Privacy Policy is consistent with the aforementioned PIPEDAsection.

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47 In this case, Constable Hicks complied with both the Budget Privacy Policy and with the procedural requirements of PIPEDA. She contacted Mr. Chang at Phelps Leasing, identified herself as a police officer and asked for some information about the individual who rented the a red Chevrolet Cobalt BC license 957 LBT on November 16, 2009. When he asked her why she wanted the information, she told him that the vehicle was involved in a drug trafficking investigation. He provided her with some of the information about the accused verbally. She then asked for a copy of the documentation he signed and/or provided to rent the vehicle. Mr. Chang asked her to fax him a formal request which he did. 48 Constable Hicks identified herself as a police officer and advised that the vehicle was being investigated in a drug investigation. Her lawful authority to obtain the information was as a police officer investigating this alleged contravention of the Controlled Drugs and Substances Act. She also had the lawful authority under section 47.014 of the Criminal Code which states: 47.014(1) For greater certainty, no Production Order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited from law by disclosing. 49 Constable Hicks testified that she could have got a Production Order to obtain this information but did not do so. She was aware that Section 47.014(1) allowed her to ask for it and that is what she did. Mr. Chang was aware of Budget's Privacy Policy and upon satisfying himself that Constable Hicks request was in compliance with it, he provided the requested information. While neither of them considered PIPEDA, they complied with the requirements under section 7(3) of that Act. Therefore, the information was not subject to an obligation of confidentiality. 50 The police called Phelps Leasing and asked for the information. They did not demand it nor did they threaten Mr. Chang or Phelps Leasing with prosecution if they did not provide it. Mr. Chang asked why the police wanted the information and Constable Hicks told him. The police had reason to suspect that the person driving the red Cobalt was selling crystal meth to Ms. Holmes and Mr. Soare. They asked for specific information about a specific vehicle and that was all they requested. There was nothing intrusive about the way they obtained the information and the method used was not objectively unreasonable considering the balance between privacy and the legitimate demands of law enforcement and criminal investigation. 51 Lastly, I am not satisfied that the information contained in the Budget Rent-a-Car contract or attached documents exposed any intimate details about the accused's lifestyle or information of a biographic nature. The information in the contract included the accused's name and Mastercard number. It also included a copy of the accused's driver's license which provided a photo of the accused, his driver's license number, his address, his height, weight, eye and hair colour, sex, birthdate, issue date, expiry date, class, endorsements and restrictions. 52 A lot of this information is personal to the accused but it does not reveal intimate details of his

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lifestyle or his personal choices. In today's world we have become increasingly dependent on the Internet and technology. Some of the information such as name and address are readily available on the Internet or in a phone book. I heard no evidence that the accused went to any lengths to keep this information out of a phone book or off the cyber highway. People use credit and debit cards to purchase things or make payments. A driver's license gives an individual the privilege to drive a vehicle and it has become a very common form of identification. Indeed, it is one of only a handful of acceptable identification when it comes to purchasing alcohol or cigarettes, travelling on an airplane within Canada, when cashing a cheque, when picking up merchandise already paid for, among other things. It is also used by retailers to deter and detect fraud. All provinces in Canada have given police the right to request a driver's license from someone driving a vehicle to verify the identity of the person driving to ensure that they are legally driving. Barring evidence to the contrary about a particular person, such reliance on driver's license and technology reduces the expectation of privacy that that person can expect in the information contained in these things. 53 It is also significant to note that the disclosure of this information did not lead to the police obtaining more intimate details of the accused's lifestyle or choices such as sexual orientation, religion or personal likes or dislikes. The only thing the information revealed was that Lindsay Siemens had a driver's license and a credit card and rented the red Cobalt that the police saw meet with Ms. Holmes and Mr. Soare in Rosedale, Alberta. It was only after the police did further investigation that they satisfied themselves that Mr. Siemens was the person who met with Ms. Holmes and Mr. Soare and that he was involved in the drug trade. 54 Taking into account the nature of the information in question, the fact that PIPEDA was complied with the lawful authority of Constable Hicks to request the information pursuant to section 47.014(1) and Phelps Leasing's right, in accordance with its contractual arrangement with the accused to disclose the information to a police officer engaged an active investigation, the accused did not have an objectively reasonable expectation of privacy in this information. 55 Against the backdrop of the nature of the investigation, the commercial information, the nature of the information sought and all of the relevant factors as discussed, I am not satisfied on the basis of the totality of the circumstances that the accused had a reasonable expectation of privacy in the information seized by Constable Hicks from Phelps Leasing Ltd. As such, it is not necessary for me to consider whether the seizure was reasonable. Since the accused has not established a reasonable expectation of privacy in the Budget Rent-a-Car information, there was no violation of his section 8 Charter right in this case. b) If there was a violation of the accused's section 8 Charter right, should the evidence obtained as a result of the Charter breach be excluded pursuant to section 24(2) of the Charter?

56 Given that I have determined that there was no section 8 Charter breach in this particular case, there is no need for me to consider whether the evidence should be excluded pursuant to section

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24(2) of the Charter. CONCLUSION 57 The accused's Charter application regarding the admissibility of certain evidence obtained by the police from Budget Rent-a-Car is dismissed. All exhibits on this voir dire are admissible and will become full exhibits in the trial proper. D.E. LABACH PROV. CT. J. cp/e/qlcct/qlvxw/qlhcs

---- End of Request ---Download Request: Current Document: 1 Time Of Request: Friday, October 28, 2011

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