R v MacPherson

R. v. MacPherson

2017 ONSC 7378
Ontario Superior Court of Justice — Justice Calum MacLeod | December 11, 2017

Background

Scott Kyle MacPherson was arrested on June 14, 2015, after Ottawa Police officers searched his vehicle and found marijuana, cocaine, methamphetamine and $1800 in cash. He was charged with two counts of possession for the purpose of trafficking and one count of possession of proceeds of crime. MacPherson claimed the search was unlawful because officers targeted him after he interacted with a police officer at a party earlier that evening. A witness named Mr. Saumier said he saw an unmarked police vehicle following MacPherson when he left the party around 11:30 p.m.

The officers claimed they spotted MacPherson's vehicle in a parking lot just after midnight and saw marijuana through the windshield — but MacPherson didn't buy it. He believed they followed him from the party and conducted an unconstitutional search. To prove his theory, MacPherson applied for production of GPS data from the three police cruisers involved in his arrest.

Issues

1. Should GPS tracking data from police vehicles be treated as "first party records" subject to disclosure under Stinchcombe, or "third party records" requiring an O'Connor application?
2. Is GPS data from police vehicles relevant enough to warrant production for the defence?

The GPS Data Dilemma

The Crown argued this was an O'Connor application for third-party records because the GPS data wasn't directly related to the investigation. But Justice MacLeod disagreed. He found that police GPS data falls into a "gray area" — it's automatically collected for operational purposes, not specifically for investigating MacPherson, but it becomes relevant when the defence claims officers are lying about their location.

The judge noted a key problem: officers communicated on a DART radio frequency that isn't recorded, so there were no communication records to verify their version of events. He also pointed to a recent case where Constable Boldirev's testimony was found "wanting" in similar circumstances, raising credibility concerns about the officer's evidence in this case.

Most importantly, the Crown had already provided evidence that no queries were run on MacPherson's licence plate before 12:30 a.m., supporting his claim that he wasn't targeted until after the alleged search. The judge found the GPS data could either support or contradict the officers' testimony about where they were when they claimed to spot the marijuana.

Key Takeaway

Police GPS tracking data can be ordered for production when it's relevant to challenging officer testimony about their location during an investigation.

If you believe police officers are lying about where they were or how they came to investigate you, GPS data from their vehicles might be available to test their credibility — but you'll need some evidence beyond mere speculation to convince a judge the data is relevant to your defence.