Crown: S. Latimer, Office of the Crown Attorney, Brampton
Defence: Craig Penney, Brampton Child Pornography and Computer Crimes Lawyer
¶ 1 REASONS FOR JUDGMENT: Mr. S. stands accused of three charges under the Criminal Code of Canada: possession of child pornography under s. 163.1(4); accessing child pornography under s. 163.1(4.1) and one count of making available child pornography under s. 163.1(2). The matter was commenced on March 26, 2015, and continued April 1, 20, May 14, and May 25, 2015. Mr. S. filed an application under the Charter of Rights and Freedoms, seeking to exclude evidence obtained in breach of his section 8 Charter rights. The Crown called two witnesses on both the trial and the Charter application. The defence called no evidence on the Charter application. The Crown and the defence sought a ruling on the application prior to continuing the trial. These are the reasons for my ruling. Overview of the Facts:
¶ 2 The Crown alleges that on May 14, 2012, Mr. S. created an account on his computer which gave him access to a website called Photobucket, and that on that date he used that website to upload and share child pornography. Photobucket, a company located in the United States, closed the account almost immediately, and forwarded the files and information about the account to the National Center for Missing and Exploited Children (NCMEC), in accordance with United States law. A report was sent to the Canadian National Child Exploitation Co-ordination Centre (NCECC). That agency prepared an investigative file, which it forwarded to Peel Regional Police (PRP). The PRP investigated the files sent to it and determined that they fit the definition of child pornography set out in the Criminal Code. Based upon information provided through the NCMEC, a Law Enforcement Request was sent to Rogers Communications Inc., the service provider associated with the IP address of the suspect computer, in order to obtain information about the subscriber. Rogers provided a subscriber name, an address of Brampton associated with the account, and a modem serial number.
¶ 3 Based upon this information, along with other investigative steps, Officer A*** of the PRP swore an affidavit in support of a search warrant for the accused's address. The warrant was executed on May 31, 2013. Two hard drives were seized, one contained in an Apple computer and one stand alone hard drive located on a shelf in Mr. S.'s bedroom. The hard drives were searched in January 2014 and again on March 17, 2015. A number of child pornography files were found during the first search; information tending to show that Mr. S. was the owner and user of the hard drives at the relevant times was found during the second search. The Crown seeks to tender all of this evidence on the trial. Issues:
1) Was the initial search of the hard drive conducted in breach of Mr. S.'s s. 8 Charter rights?
2) Was the second search conducted in breach of his s. 8 rights?
3) Was the delay in conducting the searches so unreasonable such that it amounted to a breach of his s. 8 rights?
4) If a breach or breaches are established, should the evidence obtained as a result of either or both searches be excluded under s. 24(2) of the Charter?
Issue 1: Was the initial search of the hard drives conducted in breach of Mr. S.'s s. 8 Charter rights?
¶ 4 The Crown conceded that pursuant to the decision in R. v. Spencer, 2014 S.C.C. 43, the seizure and first search of the hard drives breached Mr. S.'s s. 8 Charter rights. The Law Enforcement Request to Rogers Communications Inc. for subscriber information was a search without prior judicial authorization, and was therefore a search conducted in breach of s. 8.
¶ 5 The Law Enforcement request was sent on March 5, 2013. A warrant was obtained on May 28, 2013, authorizing a search of Mr. S.'s home and any computers found therein. The warrant was issued in large part based upon the information provided by Rogers Communications Inc. with respect to their subscriber information. The warrant was executed on May 31, 2013, and two hard drives were seized: one, referred to in evidence as the "866 drive" was located in a MacIntosh laptop; the second, referred to as the "867 drive" was located on a shelf in Mr. S.'s bedroom. These drives were copied by the PRP on June 13, 2013. Initial searches of the hard drives were done on October 1, 2013 and January 3, 2014, and a number of files were found containing pornographic images involving children. Information was also found on the 866 drive that showed that some of these files were shared.
¶ 6 The Spencer decision was not released until June 13, 2014, months after the initial search. While this search was unconstitutional, it was conducted while the law was in a state of flux. The breach was not egregious. Issue 2: Was the second search conducted in breach of Mr. S.'s s. 8 rights?
¶ 7 After speaking with a Crown attorney on March 17, 2015, Officer La****, a technical crimes officer with the PRP, conducted a further search and analysis of the 867 drive, which had been located in Mr. S.'s residence. Child pornography was found on this drive. In addition, personal information regarding Mr. S. was also found on this hard drive, including a copy of a doctor's note regarding Mr. S.; several of his resumes; and job applications. No additional warrant was obtained authorizing this subsequent search.
¶ 8 The Crown argued that this second search did not breach Mr. S.'s s. 8 rights. He argued that the original warrant obtained on May 28, 2013 was presumptively valid, and remained valid until such time as a Court ruled otherwise. He argued further that Mr. S. could have applied to the Court for the return of his hard drives at any time, and that absent an order that they be returned to him, the drives were in the lawful possession of the Crown and available for lawful search.
¶ 9 With respect, I find no merit in this argument. The Crown conceded that the first searches of the hard drives was unconstitutional. I fail to see how the second searches could become constitutionally permissible without some intervening judicial authorization. The fact that they remained in police custody does not confer constitutionality on the searches. The first searches were unconstitutional. The second, based upon the same constitutionally invalid search warrant, were also unconstitutional.
Issue 3: Was the delay in conducting the searches so unreasonable such that it amounted to a breach of Mr. S.'s s. 8 rights?
¶ 10 The first searches of the two hard drives were done in October of 2013 and January of 2014, five months and eight months after they were seized. The second searches were conducted in March 2015, some ten days prior to the commencement of the trial, and almost two years after the drives were seized.
¶ 11 The defence argued that the delay in conducting the searches — particularly the second searches — amounted to an unreasonable manner of search which breached s. 8, citing R. v. Vu,  3 S.C.R. 657. He submitted that the reasonableness of the delay ought to be assessed against the standard set out in the authorities under a s. 11(b) Charter analysis. He urged the Court to find that the second search, conducted less than two weeks prior to the first day of trial, had the potential to prejudice his ability to make full answer and defence.
¶ 12 I note that the defence did not argue any actual prejudice to Mr. S. There was no adjournment sought on the basis that the disclosure of the second search report impeded his ability to make full answer and defence. The trial was not otherwise delayed as a result of the actions of the Crown. No s. 11(b) Charter application was made. No caselaw other than R. v. Vu was referenced in support of this argument.
¶ 13 In my view, in the absence of any prejudice to Mr. S. arising out of the delay in conducting the second search, the timing of the search does not render it unreasonable. There was no breach of his s. 8 rights on this basis.
Issue 4: If a breach or breaches are established, should the evidence obtained as a result of either or both searches be excluded under s. 24(2) of the Charter?
¶ 14 Having determined that all searches of the defendant's hard drives were done in breach of his s. 8 Charter rights, the issue as to whether the evidence obtained as a result thereof ought to be excluded under s. 24(2) of the Charter must be addressed.
¶ 15 It was the submission of the Crown that the evidence obtained from the initial search of the hard drives ought to be admitted, despite the conceded breach of s. 8, as the searches were done in good faith. The law was unclear at the time of the initial searches, and the officer had a warrant. The Court in R. v. Spencer, it was argued, admitted the evidence obtained from the unlawful search of the computer in that case precisely for those reasons. But for the second breach of Mr. S.'s s. 8 rights, I would have agreed with the Crown's position.
¶ 16 The Crown argued that if the second search of the 867 hard drive was not lawful, the evidence obtained from it should nonetheless be admitted under the analysis set out in R. v. Grant,  2 S.C.R. 353. The Crown's submission was that the officer acted in good faith in conducting the second search, and that there was no wilful or reckless disregard for Mr. S.'s Charter rights. He argued, as noted above, that the officer believed he was in valid possession of the two hard drives, had a warrant to search them, and had already conducted one search, and thus believed a further search would be Charter compliant.
¶ 17 Officer A*** testified that he attended a training course in June of 2014 which focused on the R. v. Spencer decision. He understood that the Supreme Court of Canada had ruled that the use of Law Enforcement Requests in support of applications for search warrants of computers was unconstitutional. He knew that had the first search occurred prior to the R. v. Spencer decision, he would have had to seek judicial authorization to obtain the subscriber information from Rogers Communications Inc., as can be seen from his testimony:
Q. Yes. So when you and ITO — okay, I'm going to put it to you 'cause I'm seeing this in other ITOs so I'm just going to put it to you. The practice that emerged for units such as you, and — because you discussed — this was discussed — this issue was discussed at your training and seminars in Halifax, correct?
Q. So I'm going to suggest to you that what is — what emerged immediately after Spencer — police in this area became aware of Spencer, is that if you have a search warrant that has not be executed — issued yet, you ought — even if you have the tombstone information you have to get a production order, go back, get that and then incorporate the results of the IT — sorry, the production order in your ITO to make it good?
A. My understanding was is that if the case wasn't before the courts that that would be the practice, yes.
Q. Right. And the reason that would be the practice of course is that if you did otherwise you'd be submitting an ITO with information that you knew was unlawfully obtained, agreed?
A. After the Spencer decision...
A. ... yes.
¶ 18 His reasoning, in requesting that tech crimes Officer L*** do a second search post R. v. Spencer, was that since he conducted the first search in good faith pre-R. v. Spencer, and still had the imaged hard drives, he could in good faith conduct a second search. What is particularly disconcerting about this line of thought is that Officer A*** somehow understood the R. v. Spencer decision to have "legalized" the search of the computer in that case by virtue of the fact that the evidence was not excluded. The officer apparently felt that because the evidence was ultimately admitted in the R. v. Spencer case, the search was not illegal, and that therefore the search in this case was not illegal. This can be seen in the following portion of the transcript of his evidence:
Q. ... I'm asking you now about that period from when you learned about Spencer in Halifax right up until two weeks ago when we were all here in court together.
Q. I'm asking you about your belief in your authority as a police officer to invade Mr. S.'s privacy interests by doing further searches?
A. My belief is —is that on the execution of the search warrant everything was obtained lawfully. As a result of the seizing of the devices, again the exact copy was made by TCU and that was obtained lawfully. The property — physical property was then entered into our property bureau. So any examination after that I believe was done on the exact copy, which at the time was obtain lawfully. So I believe up until March 12th that any seizure or any search of that information again fell under the original information to obtain and that the searches were again done lawfully...
¶ 19 The Officer apparently did not accept that the search in the R. v. Spencer case was illegal, whether the evidence was ultimately admitted or not. He applied this fundamentally flawed logic to his investigation in Mr. S.'s case, and concluded that the searches of Mr. S.'s computer — both before and after the R. v. Spencer decision — were legal. In my view, this is an egregious error.
¶ 20 This reasoning apparently was confirmed in discussions held between the tech crimes Officer L***, who actually did the second search, and the Crown.
¶ 21 With respect, I find this reasoning to be disingenuous, and the officer's actions in conducting the second search not to be in good faith. The Crown and the police conducting the second search knew that the first search was unconstitutional after the R. v. Spencer decision. It was open to them at that time to seek judicial authorization that would make any subsequent search Charter compliant. They chose to conduct the second search knowing that it was subject to the same frailties as the first. This is not, in my view, acting in good faith as understood in the R v. Morelli,  1 S.C.R. 253 case.
¶ 22 With respect to the second search, I find the seriousness of the Charter infringing State conduct to be egregious. The Court must not be seen to condone or disregard actions by the state which seriously undermine the rights of individuals under the Charter. This was not a minor or technical breach of Mr. S.'s s. 8 rights. The Crown and the police were well aware that they were unlawfully in possession of the hard drives seized from Mr. S.'s home, pursuant to R. v. Spencer. They chose to ignore this, and to conduct the searches simply because they could. In my view, this seriously impacts on public confidence in the administration of justice, and strongly militates in favour of exclusion of the evidence.
¶ 23 It is clear from R v. Spencer, R. v. Morelli, and a host of other cases that individuals have a strong privacy interest in the information contained in their computers and similar electronic devices. Searches such as the second search of Mr. S.'s computer have an enormous impact on this privacy interest. Unlawful searches of computer devices heavily infringe on s. 8 rights. Charter breaches in this area have a very strong impact on these Charter protected rights. This branch of the test favours exclusion of the evidence.
¶ 24 Clearly, society has a significant interest in having cases involving allegations of making, possessing and sharing child pornography heard on their merits. The evidence obtained from the second search is clearly vital to the Crown's case, and is tangible evidence of the crimes alleged.
¶ 25 The detestable nature of the crime itself, however, should not cloud the issue. Indeed, the strength of the law's commitment to protecting Charter rights can be measured in some degree by its willingness to uphold those rights in cases where serious wrongdoing is alleged. As Justice Iacobucci held in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (SCC): "... [W]e should never lose sight of the fact that even a person accused of the most heinous crime...is entitled to the full protection of the Charter. Short-cutting or short circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2)."
¶ 26 In my view, this branch of the analysis marginally favours inclusion of the evidence.
¶ 27 In weighing the above factors, with respect to the second searches, I find that to admit the evidence obtained therefrom would bring the administration of justice into disrepute, and I therefore exclude this evidence.
¶ 28 I return to the issue of the first searches. Should the evidence obtained in the first, pre-R. v. Spencer searches be excluded? Had the second Charter breach not occurred, I would have admitted the evidence obtained in the course of the first search, for the reasons set out in R. v. Spencer. However, in light of the second breach, I would also exclude this evidence, for the following reasons.
¶ 29 There is a strong and substantive connection between the first and second searches. They both rely on warrants obtained through means which contravened the defendant's s. 8 rights, and they were both conducted as searches for personal and illegal data from an individual. They were also done in an iterative fashion. The second search involved the 867 drive, which was also searched earlier. It was searched again because a new program had become known to the OIC which could, in essence, "dig deeper" into the hard drive and find additional information. It was, essentially, all one search, the second differing only in terms of time and the tools used. This sets this case apart from R. v. Yakubovsky-Rositsan,  O.J. No. 4708 (O.C.A.).
¶ 30 In Yakubovsky-Rositsan, police were called to a domestic dispute. At the scene, the complainant handed the police a bag belonging to the accused, saying it held drugs, and that she did not want them in her house. The police found drugs in the bag. The trial judge held that the police had violated the accused's s. 8 rights in searching the bag, although the breach was minor in nature. There were subsequent, more serious breaches of the accused's rights at the station. The trial judge failed to consider the more serious Charter breaches during the s. 24(2) analysis regarding the initial s. 8 breach. The Court of Appeal upheld the ruling on the following basis (¶5):"In our opinion, the s. 8 breach was distinct and unrelated to the subsequent more serious breaches of the appellant's rights that occurred at the police station during the police investigation of the domestic assault. On the facts there were two separate investigations, no factual connection between the breaches and no pattern of abuse."
¶ 31 In the case at bar, the searches were not separate investigations, were factually connected, and tend to show a pattern of behaviour on the part of the state.
¶ 32 The British Columbia Court of Appeal considered this issue in R. v. Lauriente, 2010 BCCA 72. In that case, the police breached the Charter rights of several co-accused in the course of a drug investigation. Even though the breaches were not with respect to a single accused, but rather an aggregate of the breaches against several accused, the B.C. Court of Appeal considered the ruling of the trial judge and held that "... If she had considered the breaches individually, as if they had occurred in a vacuum, or in circumstances which were otherwise unremarkable, she may have concluded that the serious remedy of the exclusion of evidence was not warranted; that is, that the admission of the evidence obtained thereby could not have brought the administration of justice into disrepute. But these breaches did not occur in a vacuum, they occurred in the context of a relatively brief investigation where each step in the investigation followed and built on the prior step...In my view, the trial judge was entitled to have regard to all of these breaches, both in placing the seriousness of the individual breaches in context, and, more particularly, in determining whether this pattern of disregard of the Charter by the authorities could bring the administration of justice into disrepute."
¶ 33 A similar result was held in R. v. Chaisson,  SCC 11.
¶ 34 In my view, the seriousness of the second Charter breach of Mr. S.'s s. 8 rights must inform the s. 24(2) analysis with respect to the first breach. The second breach did not occur in a vacuum; indeed, the Crown and the police confronted exactly the same issue they faced regarding the first breach. The difference was that they had the benefit of the Supreme Court's ruling in R. v. Spencer. Despite that clear direction from Supreme Court of Canada, they continued to breach the very same s. 8 rights in the very same way. The cumulative effect of the two Charter breaches leads me to conclude that on the R. v. Grant analysis, the evidence obtained as a result of the first breach must also be excluded.
¶ 35 In conclusion, therefore, I rule that the evidence obtained as a result of any of the searches of either the 866 or 867 drives will be excluded.