A B.C. Supreme Court justice has tossed out a Penticton woman’s application to cross-examine an RCMP officer over his information sworn to obtain a search warrant that led to her arrest on drug charges.
In his decision, Justice Gary Weatherill was also heavily critical of the defence suggestion that the use of the text messages to obtain a search warrant breached 31-year-old Jennifer Montgomery’s section 8 charter rights, which largely cover protections against unreasonable search and seizure.
Montgomery’s first day of trial by judge alone on Wednesday began with a voir dire to examine the defence application to cross-examine Cst. Chad Jackson in trial.
Defence lawyer Michael Patterson argued the information to obtain (ITO) a search warrant relied heavily on text messages found on another woman’s cell phone searched earlier that day, which Patterson believed to be a breach of Montgomery’s charter rights.
On June 22, 2016, police arrived at a residence in the 1400 block of Penticton Avenue believed to belong to Montgomery to serve a traffic ticket, and spotted Natasha Clifton at the residence, who was found to be in breach of a court order.
Upon arresting Clifton, police found a large quantity of drugs in her purse, as well as a weighed-out portion of drugs in her bra. Officers searched her phone and found text messages, either on Facebook or on other text messaging apps, with a person named Jennifer Leanne, with a picture matching Montgomery, whose middle name is Leanne.
Between that information and surveillance done at Montgomery’s residence, in which police noted a couple of known drug users entering the residence, Jackson swore the ITO, and police executed the search warrant on the same day.
Patterson attempted to argue in the voir dire that the defence needed to cross-examine Jackson on his ITO, as Patterson believed finding the messages between Montgomery and Clifton would have taken more than a cursory search of the phone.
That can be problematic in some cases, as there is a certain amount of privacy one can reasonably expect, legally. For example, the sender of a text message can reasonably expect that a message sent would not be shared with authorities by the service provider without a warrant.
In this case, Patterson said police taking more than a cursory search of the phone and finding Montgomery’s messages was a violation of her reasonable expectation of privacy.
Crown lawyer Ginger Holmes noted in her counter argument that she would not be using the text messages in her own case against Montgomery, but Patterson said that didn’t matter.
“It’s fruit of a poisonous tree,” Patterson said. “My friend, whether she’s going to use that evidence as part of her case or not is irrelevant. The point is the starting point is the using of the information, which we say, came from the breach of Ms. Montgomery’s section 8 rights to obtain a warrant, and in obtaining that warrant, they’re able to proceed with criminal charges against her.”
A major part of Patterson’s reasoning for wanting to cross-examine Jackson was his reference to the messages as text messages in the ITO, though the messages were Facebook messages and messages by other applications. But Holmes suggested that wouldn’t make much of a difference, an argument with which Weatherill agreed.
“There seems to be nothing misleading in any of this information in the ITO that would lead to the conclusion that they need to be cross-examined on what type of messages they are,” she said. “Should there be a different type of messages, we are in a completely different application about the reasonable expectation of privacy in Facebook messages and not text messages.”
Weatherill was also critical of Patterson’s argument that the text message evidence would affect the trial as a whole. Though he acknowledged the ITO “relied heavily” on the text message evidence, he believed the search warrant could have been granted without that evidence.
“There was sufficient information on which the warrant could — and I emphasise ‘could’ — have been issued,” Weatherill said.
“Respecting Mr. Patterson’s argument that the accused’s section 8 charter rights were breached and they occurred at the moment Ms. Clinton’s cell phone was searched and the fruit from the forbidden tree not be used to support a search warrant … at the time the time the ITO was sworn, there was no ‘forbidden tree’ in relation to the accused when Cst. Jackson used of the electronic messages as part of the grounds to form the basis of the ITO.”
Montgomery’s trial is expected to run for the the remainder of the week.