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Charter - s.8 Search and Seizure - Informational Privacy (4). R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considers (and finds) that a breach of CCC 489.1 ['Restitution of thing or report'] constitutes a Charter s.8 'seizure' (not a 'search') violation:[2] Mr. Lambert also argues that s. 8 was violated by the failure of the police to file “as soon as [was] practicable” a return relating to the first seizure, as required by s. 489.1 of the Criminal Code.
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[8] Section 8 was violated relating to the first seizure by non-compliance with s. 489.1, since the first return to a justice was not filed “as soon as [was] practicable”. The trial judge did not recognize this breach because of his erroneous holding that s. 8 of the Charter was not engaged. I would not exclude the evidence obtained from the first seizure as a result of this Charter breach.
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B. DID THE TRIAL JUDGE ERR IN FAILING TO FIND A BREACH OF S. 8, ARISING FROM THE DELAY IN FILING A REPORT TO A JUSTICE BETWEEN THE HANDOVER OF COMPUTER 1 ON MAY 14, 2016, AND JULY 28, 2016, WHEN THE FIRST REPORT TO A JUSTICE WAS MADE?
[96] In explaining his conclusion that the Charter was not breached as the result of the delay in filing the first report to a justice, the trial judge said that no “warrantless search” had occurred to trigger s. 489.1. I am satisfied that when the trial judge said “search” he misspoke. He knew this was a seizure case, and s. 489.1 speaks of items being “seized” and does not use the term “search”. As I read the trial decision, he appears to have found that since, in his view, no seizure occurred within the meaning of s. 8, s. 489.1 did not have to be complied with to satisfy the demands of the Charter.
[97] I am persuaded that regardless of the precise line of reasoning the trial judge employed, his failure to find a Charter breach relating to the delay in filing the first report to a justice was an error. Section 489.1 applies to all seizures, including warrantless seizures: R. v. Backhouse, (2005) 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.). Where a peace officer seizes “anything” they must report to a justice “as soon as is practicable”. I have considered the explanations that PC Cunning offered for the delays that occurred, but I can see no basis for holding that it was not practicable to file the first report to a justice before July 28, 2016, a delay of approximately two months after Computer 1 was seized on May 14, 2016. The failure to comply with s. 489.1 is a Charter breach: Garcia-Machado. This is because a seizure is an ongoing event. During the delay that occurred before the report to a justice was filed relating to Computer 1, the ongoing retention of the computer, a continuing seizure, was not authorized by law and was therefore unreasonable, contrary to s. 8 of the Charter. . R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considered (and reversed on this point, but not on the result) an appeal as to whether Charter s.8 ['search and seizure'] operated ('was engaged') when a wife turned over a shared computer to the police with evidence of child pornography:[1] The appellant, Richard Lambert, appeals his convictions on three counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46. He argues that the trial judge erred in finding that s. 8 of the Canadian Charter of Rights and Freedoms did not apply because it was not “engaged” when, on two occasions, Ms. Lecompte, the appellant’s wife at the time, turned family computers over to the police that contained evidence that he had been accessing child pornography. Mr. Lambert submits that, on both occasions, “seizures” occurred within the meaning of s. 8 that could not lawfully be undertaken by the police without a warrant.
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[4] During the Charter voir dire, the sole question that was litigated was whether s. 8 of the Charter applies if someone with a shared privacy interest in a computer, hands it over to the police of their own initiative. As indicated, the trial judge concluded that s. 8 was not “engaged” in these circumstances. He therefore dismissed the Charter challenges relating to the two computers. ...
[5] For the reasons that follow, I conclude that the trial judge erred in these determinations.
[6] As I will explain, s. 8 of the Charter is engaged for consideration if there has been a search or seizure within the meaning of s. 8. Where this has occurred and a Charter application has been brought, a trial judge must determine whether the search or seizure was reasonable. The trial judge did not inquire into the reasonableness of the seizures in this case because he erroneously determined that seizures had not occurred within the meaning of s. 8. In my view, seizures occurred within the meaning of s. 8 when the police took control over the computers in which Mr. Lambert had a reasonable expectation of privacy. The court extensively walks through it's Charter s.8 reasoning at paras 46-91.
. R. v. Tello
In R. v. Tello (Ont CA, 2023) the Court of Appeal noted a change in the law regarding text messages and s.8 ["search and seizure"] privacy:[66] The appellant seeks to raise a new issue on appeal. At trial, he did not challenge the admissibility of the PGP messages under s. 8 of the Charter. At the time, this court’s decision in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, held that the sender of a text message had no standing to challenge the admissibility of messages sent to another device.
[67] However, on the same day that the trial judge began his charge to the jury – December 8, 2017 – the Supreme Court of Canada reversed this court’s decision and held that the sender of text messages may have standing to challenge the admissibility of such messages under s. 8 of the Charter. The majority held that, “depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8” and “whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 4-5. . R. v. Attard
In R. v. Attard (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.8 ['search and seizure'] and s.24(2) ['exclusion of evidence'], here while assessing a CCC 489 issue regarding the seizure of a car's airbag deployment data in a Crown appeal.
Here the court focusses on 'reasonable expectation of privacy':[1] This appeal turns on the admissibility of data found in a motor vehicle’s Event Data Recorder (“EDR”). An EDR is an airbag deployment device that records five seconds of vehicle data before a crash.[1] Its main purpose is airbag activation on a “deployment event” – that is, on a collision. It captures limited data with respect to the speed, throttle, and braking of the vehicle in the five seconds before an event or near-deployment event. It does not capture any other data. Data cannot be inputted into the EDR or changed.
[2] Two Canadian appellate decisions have held that there is no reasonable expectation of privacy in EDR data following lawful seizure of a car as evidence of a criminal offence: R. v. Fedan, 2016 BCCA 26, 333 C.C.C. (3d) 287, leave to appeal refused, 2016 CanLII 44776 (SCC), and R. v. Major, 2022 SKCA 80, leave to appeal refused, 2023 CanLII 14940 (SCC). Trial courts in Ontario are divided on the issue of whether EDR data attracts a reasonable expectation of privacy. While it appears to be generally accepted that the owner/operator of a vehicle may have a subjective expectation of privacy in its EDR data, the decisions diverge on whether such an expectation is objectively reasonable.
[3] In the present case, the trial judge relied on R. v. Hamilton, 2014 ONSC 447, 65 M.V.R. (6th) 239, and R. v. Glenfield, 2015 ONSC 1304, 321 C.C.C. (3d) 483, to find that the expectation of privacy in EDR data is objectively reasonable. Other Ontario cases to the same effect include R. v. Patterson, 2020 ONCJ 536, and R. v. Yogeswaran, 2021 ONSC 1242.
[4] In a conflicting line of Ontario cases, the courts have come to the same conclusion as in Fedan and Major: there is no reasonable expectation of privacy in EDR data, and any limited territorial privacy interest in the EDR is extinguished after a s. 489(2) seizure of a vehicle. These cases include R. v. Anastasis, [2016] O.J. No. 7344, R. v. Anstie, 2019 ONSC 976, and R. v. J.S., 2023 ONCJ 216. For the reasons that follow, I share this view.
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III. SECTION 489(2) OF THE CRIMINAL CODE
[11] Section 489(2) gives a police officer the power to seize “any thing”, without a warrant, in certain circumstances. Because s. 489(2) plays a key role in the resolution of this appeal, I set it out now for ease of reference.489(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament. [Emphasis added.] ....
[45] Section 489(2)(c) provides a police officer with the power to seize “any thing” that the officer believes, on reasonable grounds, will “afford evidence in respect of an offence”. The existence of reasonable belief and the legal impact of a seizure under s. 489(2) both involve the application of a legal standard to the facts of a case, which is a question of law subject to review for correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Chow, 2022 ONCA 555, 163 O.R. (3d) 242, at para. 46.
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Issue 2 - The police were authorized to extract the EDR and its data
[56] Fedan, at para. 78, and Major, at para. 70, hold that the lawful seizure of a car under s. 489(2): (a) extinguishes a driver’s territorial privacy interest in the EDR; and (b) eliminates any reasonable expectation of informational privacy in the EDR data. I agree. In explaining why, I will first discuss the extraction of the EDR and then the extraction of its data.
Extraction of the EDR
[57] On the matter of the extraction of the EDR, existing law from this court supports the view that lawful seizure of a vehicle extinguishes privacy interests in the vehicle and its component parts. For example, in Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879, at para. 35, Trotter J.A., writing for the court, states that lawful seizure of a car includes the right to conduct a mechanical inspection of it.[4] The EDR is a component of the car just as much as its engine, steering wheel, and brakes. Therefore, the police acted lawfully in extracting the EDR. Accordingly, the trial judge erred in law in finding that police entry into the lawfully seized cars to remove the EDRs amounted to trespass.
[58] In my view, the trial judge further erred in law in finding the respondent’s car was a “place”, rather than a “thing” within the meaning of s. 489(2)(c). In so finding, the trial judge appears to have confused the EDR (a component of the car) with the contents inside a car. For example, he expressed concern that if police can “seize” the EDR, they can seize whatever is in the car. This concern is misguided. Section 489(2) does not purport to give police the power to conduct a warrantless seizure of things within a vehicle. It empowers the police to seize a “thing”, which in this case were motor vehicles, including the EDRs as components of those vehicles.
Extraction of the EDR data
[59] In terms of the extraction of the EDR data, the question was whether that act by the police violated the respondent’s s. 8 Charter-protected interests. To answer that question, the trial judge had to determine whether there was a reasonable expectation of privacy in the EDR data. It is the respondent’s onus to establish that he did, failing which s. 8 protection is not extended.
[60] Three broad categories of privacy interests have emerged over time: territorial, personal, and informational: R. v. El-Azrak, 2023 ONCA 440, at para. 30; R. v. Spencer, 2014 SCC 43, at para. 38.
[61] At paras. 31-32 of El-Azrak, Fairburn A.C.J.O., writing for this court, summarized the legal framework - whatever the form of privacy is at issue – for whether someone has a reasonable expectation of privacy. That determination necessitates both a factual and a normative inquiry. The factual inquiry necessitates a command of all the circumstances in play in the case. The normative inquiry is broader in nature, with an eye to protecting that for which we ought to expect protection from a privacy perspective in a free and democratic society. The test for determining whether someone has a reasonable expectation of privacy asks the following:1. What is the subject matter of the search?
2. Does the accused have a direct interest in that subject matter?
3. Does the accused have a subjective expectation of privacy in the subject matter?
4. Would an expectation of privacy be objectively reasonable in the circumstances of the case? ....
[65] The EDR is completely objective. It contains no information going to the driver’s biological core, lifestyle, or personal choices, nor information that could be said to directly compromise his “dignity, integrity and autonomy”: Fedan, at para. 82. The recorded EDR data has information limited to a five-second window before the crash on the vehicle’s speed, throttle, and braking. There is no data on driving patterns, driving history, or average driving speed. There is no data on location or GPS coordinates. EDRs are not reprogrammable and cannot be reinstalled once removed.
[66] While an EDR is an electronic data storage device just as are personal computers, cell phones, and location trackers, the similarities end there. There is no personal information in the EDR akin to that which could potentially be found on a computer, cell phone or location tracker. EDR data is impersonal, automatically deleted, and limited to five seconds of information regarding the operations of the car. It has no link to any location or person. It does not identify the driver. It does not broadcast or receive data. As the court observed in Major, at paras. 68-71, the data provides no independent insight into the behaviours of anyone in the car.
[67] In short, the EDR data provides no personal identifiers that could link the driver to its captured data. Accordingly, the respondent had no reasonable expectation of informational privacy in the EDR data after the vehicle he was driving had been lawfully seized.
[68] This conclusion is reinforced by a recognition that EDR data is about the manner of driving, which is a public, highly regulated activity. Indeed, in the present case, the respondent’s driving was caught on camera and dashcam video. While EDR data contains more detailed information than what a member of the public might observe, the information is qualitatively similar – the speed of the vehicle and whether it is braking can be seen.
[69] For these reasons, I agree with the courts of appeal in Fedan and Major that a driver/owner does not have a reasonable expectation of privacy in the EDR and its data after the vehicle has been lawfully seized under s. 489(2).
[70] The trial judge’s errors in law on Issues 1 and 2 had a material bearing on the respondent’s acquittal because, as previously noted, the evidentiary gap on acceleration and speed would have been filled by the EDR data. . R. v. Bykovets [IP addresses]
In R. v. Bykovets (SCC, 2024) the Supreme Court of Canada considers an important case on Charter s.8 ["unreasonable search or seizure"] and the internet, specifically the police requesting IP addresses used in certain credit card transactions from third parties without a warrant:I. Introduction
[1] The Internet has shifted much of the human experience from physical spaces to cyberspace. It has grown to encompass public squares, libraries, markets, banks, theatres, and concert halls, becoming the most expansive cultural artifact our species has ever created. Along with our shopping mall and our town hall, for many of us, the Internet has become a constant companion, through which we confide our hopes, aspirations, and fears. Individuals use the Internet not only to find recipes, pay bills, or get directions, but also to explore their sexualities, to map out their futures, and to find love.
[2] These new realities have forced courts to grapple with “a host of new and challenging questions about privacy” (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 1). In Spencer, this Court determined that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. A request for this information by the state is a “search” under s. 8 of the Canadian Charter of Rights and Freedoms.
[3] This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer must be yes.
[4] An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address.
[5] But because IP addresses consist of numbers that can usually be changed by an ISP without notice, the Crown submits — and the majority of the Court of Appeal agreed — that an IP address does not attract a reasonable expectation of privacy. Here, the Crown contends that police were after no more than the collection of numbers that would ultimately allow them to obtain the production order contemplated by Spencer. Thus, the Crown reasons, the state did not infringe on the appellant’s right to privacy because Spencer sufficiently protected his personal information.
[6] I respectfully disagree. This analysis runs counter to this Court’s jurisprudence under s. 8 of the Charter. We have never approached privacy piecemeal, based on police’s stated intention to use the information they gather in only one way. The right against unreasonable search and seizure, like all Charter rights, must receive a broad and purposive interpretation, reflective of its constitutional source. Since Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, we have held that s. 8 seeks to prevent breaches of privacy, rather than to condemn or condone breaches based on the state’s ultimate use of that information. Privacy, once breached, cannot be restored.
[7] To that end, our Court has applied a normative standard to reasonable expectations of privacy. We have defined s. 8 in terms of what privacy should be — in a free, democratic, and open society — balancing the individual’s right to be left alone against the community’s insistence on protection. This normative standard demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 32).
[8] Informational privacy is particularly critical — and particularly challenging. Our jurisprudence recognizes that computers are unique and present privacy risks that differ from s. 8’s traditional objects. Thus, this Court has determined that s. 8 generally prevents police from seizing a computer without a warrant — even though the device itself provides no information without judicial permission to search its contents — because seizing the computer gives the state the means through which to access its content (R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 34).
[9] Casting the subject matter of this search as an abstract string of numbers used solely to obtain a Spencer warrant goes against these precedents. IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement. The specific online activity associated with the state’s search can itself tend to reveal highly private information. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought.
[10] And the Internet has concentrated this mass of information with private third parties operating beyond the Charter’s reach. In this way, the Internet has fundamentally altered the topography of informational privacy under the Charter by introducing third-party mediators between the individual and the state — mediators that are not themselves subject to the Charter. Private corporations respond to frequent requests by law enforcement and can volunteer all activity associated with the requested IP address. Private corporate citizens can volunteer granular profiles of an individual user’s Internet activity over days, weeks, or months without ever coming under the aegis of the Charter. This information can strike at the heart of a user’s biographical core and can ultimately be linked back to a user’s identity, with or without a Spencer warrant. It is a deeply intrusive invasion of privacy.
[11] Weighed against society’s legitimate interest in privacy is society’s legitimate interest in “[s]afety, security and the suppression of crime” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17). While the right to be left alone must keep pace with technological developments, the way in which crime is committed and investigated also evolves. Easy access to the Internet and user anonymity combine to facilitate the commission of crime and challenge effective law enforcement. Clearly, the particularly insidious nature of much online crime, including child pornography and luring, presents serious and pressing social harm. Police must have the tools to investigate these crimes. And when an IP address (or subscriber information) is clearly linked to a crime — as it obviously can be for child pornography or luring — prior judicial authorization is readily available. A production order for an IP address would require little additional information to what police must already provide for a Spencer warrant. Both society’s interest in effective law enforcement and its interest in protecting the informational privacy rights of all Canadians must be respected and balanced.
[12] On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
[13] As a crucial component inherent in the structure of the Internet, an IP address is the key that can lead the state through the maze of a user’s Internet activity and is the link through which intermediaries can volunteer that user’s information to the state. Thus, s. 8 ought to protect IP addresses. Doing so would safeguard the first “digital breadcrumb” and shroud the trail of an Internet user’s journey through cyberspace; it would further s. 8’s purpose of preventing potential infringements of privacy rather than circumscribe its scope according to the state’s stated intentions about how it will use this key.
[14] I would allow the appeal. There is a reasonable expectation of privacy in an IP address. A request by the state for an IP address constitutes a search.
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IV. Analysis
[28] This appeal raises a single issue: Does a reasonable expectation of privacy attach to an IP address? In my view, the answer is yes. As I will explain, an IP address is the crucial link between an Internet user and their online activity. Thus, the subject matter of this search was the information these IP addresses could reveal about specific Internet users including, ultimately, their identity. To find that s. 8 does not extend to an IP address because police collected it only to obtain a Spencer warrant ignores the information it can reveal without a warrant. Such an analysis reflects piecemeal reasoning based on how the state intends to use the information in a specific case, contrary to the broad, purposive approach required by s. 8’s constitutional status. Nor can the analysis be limited to the privacy interests affected by what the IP address can reveal on its own, without consideration of what it can reveal in combination with other available information, particularly from third-party websites. Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy. If s. 8 is to meaningfully protect the online privacy of Canadians in today’s overwhelmingly digital world, it must protect their IP addresses. . R. v. Campbell [no search where police talk on phone, but yes a search where text msgs because permanent record]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court considers the interesting issue of police using a cell phone that was found with an arrestee to negotiate a further drug buy, and whether that attracted any Charter 8 search concerns - and then further whether the use of the text message function is different (it is):(e) Undercover Police Work Is Not Imperilled
[69] The Crown further argues that the police impersonation of Mr. Gammie was simply an undercover police investigation, and was therefore not a search under s. 8. It cites the comments of Karakatsanis J. on behalf of a minority of the Court in Mills, that “s. 8 does not prevent police from communicating with individuals in the course of an undercover investigation”, and that “an individual cannot reasonably expect their words to be kept private from the person with whom they are communicating” (para. 42). The Crown says that simply because an interlocutor turns out to be an undercover police officer does not convert a text message conversation into a search, and that accepting Mr. Campbell’s privacy claim would lead to “a society bereft of undercover police work” (R.F., at para. 55).
[70] Like the Court of Appeal, I would reject this argument. I accept that there is nothing necessarily improper in the police answering the phone of an arrested person and speaking with an unsuspecting caller, as occurred in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520. But speaking with a caller on a telephone is constitutionally different from creating a permanent electronic record of the communication through a surreptitious sound recording or by using the medium of text messaging. The surreptitious recording of a communication by the police is a search and seizure for constitutional purposes. As La Forest J. stated in Duarte, “[a] conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does” (p. 57). Likewise, as Arbour J. stated in R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 12, “a conversation with an informer, or a police officer, is not a search and seizure. Only the recording of such conversation is”.
[71] In this case, the police did not surreptitiously record Mr. Campbell’s conversation. Instead, the medium of communication of text messaging itself generated the record of the conversation (TELUS Communications, at para. 34). That medium potentially gives rise to a reasonable expectation of privacy, but this does not in itself prevent undercover police work. Instead, it merely imposes constitutional constraints on police investigations involving text messaging by requiring the police to comply with s. 8 of the Charter (see Marakah; Jones).
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