Crown:   D. Moull & P. Enright, Office of the Crown Attorney, Newmarket
Defence:  Craig Penney, Criminal Defence Lawyer, Newmarket

¶ 1 MR PENNEY:  ... I gather you are familiar with the basic requirements of a search warrant — the grounds that are necessary for you to obtain a search warrant? Correct? You are nodding yes?

¶ 2 OFFICER:  Yes.

¶ 3 MR PENNEY:  Thank you so much Officer.

¶ 4 OFFICER:  Sorry, yes.

¶ 5 MR PENNEY:  And one is you have to have reasonable and probable grounds to believe there is an offence, correct? Reasonable and probable grounds that items exist? Thirdly, reasonable and probable grounds that the items exist at a specific address?

¶ 6 OFFICER:  Yes.

[In this part of the cross-examination, I establish the following. Even though the police officer believed that Mr. L. had purchased access to a website containing child pornography, the officer had no basis for believing (a) that Mr. L. made the purchase knowing there was child pornography on that website, (b) that Mr. L. accessed any child pornography, and (c) that Mr. L. downloaded child pornography. As you read this, keep in mind that the officer had sworn before a Justice that she believed that Mr. L. had possessed child pornography.]

¶ 7 MR PENNEY:  ... if someone buys a membership you are going to draw a reasonable inference that he is going to access right?

¶ 8 OFFICER:  Yes.

¶ 9 MR PENNEY:  That he has spent the money — why not go and use it?

¶ 10 OFFICER:  Yes.

¶ 11 MR PENNEY:  ... you don't know that this is a person that has a mindset — I am going looking for child pornography, correct?

¶ 12 OFFICER:  Yes.

¶ 13 MR PENNEY:  Although you can certainly draw a reasonable inference, in my submission, that you know a person who spent $79.00 Canadian ... on access to a website probably wants to have access to the website and probably is going to follow through?

¶ 14 OFFICER:  Yes.

¶ 15 MR PENNEY: Reasonable inference, but you don't know what in fact he is looking for in terms of child pornography or anything else correct?

¶ 16 OFFICER:  Yes.

¶ 17 MR PENNEY:  So, you can draw an inference that he is going to access that site? But you don't know if, in fact, he even viewed any child pornography on the site correct? Because you don't know how many web pages are on the site? Correct?

¶ 18 OFFICER:  No.

¶ 19 MR PENNEY:  Or how many pages he has to click through to go through? So, you don't know what images he saw? Even if he saw any images of child pornography, correct?

¶ 20 OFFICER:  Yes.

¶ 21 MR PENNEY:  ... then you certainly don't know whether he downloaded any? You don't know whether this is a person saying wow I hit the jackpot? You don't know if you are dealing with that kind of person or someone that is completely disgusted by what they are seeing on the screen and immediately shutting down their computer? Correct?

¶ 22 OFFICER:  Yes.

¶ 23 MR PENNEY:  Could be one? Could be the other? You have no basis for believing that this particular subscriber is one type of user as type as opposed to another type of user correct?

¶ 24 OFFICER:  No.

¶ 25 MR PENNEY:  You certainly have no basis for believing he saved any images of child pornography correct?

¶ 26 OFFICER:  No.

[Now into the second day of the cross-examination, I establish two things: firstly, that the officer had no reasonable belief that Mr. L. possessed any child pornography from the date that he purchased the membership (28 May 2003) up to and including the date of the search warrant (10 March 2005); and, secondly, that the officer had no reasonable belief that there were any "items" to be searched for.]

¶ 27 MR PENNEY:  And you have already indicated to His Honour that you didn't have reasonable and probable grounds to believe that Mr. L. downloaded or possessed any items on May 28th, 2003? Correct?

¶ 28 OFFICER:  Correct.

¶ 29 MR PENNEY:  All right. And you certainly had no grounds to believe that he collected anything after May 28th, 2003? Correct?

¶ 30 OFFICER: Correct.

¶ 31 MR PENNEY:  All right, so it would stand to reason that you had no reasonable and probable grounds to believe that he was in possession of [child pornography] items on March 9th, 2005? Correct?

¶ 32 OFFICER:  Correct.

¶ 33 MR PENNEY:  All right. And I gather, given those answers, you could not have reasonable and probable grounds to believe that there are any items in existence concerning his activity on May 28th, 2003.

¶ 34 OFFICER:  Sorry can you repeat the question?

¶ 35 MR PENNEY:  The question concerns the second ground of the search warrant trilogy.

¶ 36 OFFICER:  Yes.

¶ 37 MR PENNEY:  Whether any items existed? Correct? That suggesting that you don't have reasonable and probable grounds to believe that any items exist with respect to the offence — [an offence] that you say you didn't have reasonable and probable grounds to believe was committed.

¶ 38 OFFICER:  I have reasonable belief. I just — maybe not reasonable or probable grounds that he went through this process to get these images.

¶ 39 MR PENNEY:  ...you certainly have reasonable and probable grounds that he subscribed on May 28th, 2003. We went through that yesterday?

¶ 40 OFFICER:  Yes.

¶ 41 MR PENNEY:  You certainly have reasonable and probable grounds that he spent this money and made this purchase because he is interested in viewing the website correct?

¶ 42 OFFICER:  Yes.

¶ 43 MR PENNEY:  ...by March 9th, 2005, you have reasonable and probable grounds to believe that he is a subscriber?

¶ 44 OFFICER:  Yes.

¶ 45 MR PENNEY:  I asked you a series of questions yesterday concerning your reasonable and probable grounds regarding, number one, his intent going into the site. Correct?

¶ 46 OFFICER: Yes.

¶ 47 MR PENNEY:  And what he might have been looking for? Correct?

¶ 48 OFFICER:  Yes.

¶ 49 MR PENNEY:  And whether, in fact, he did even see any pornography when he went into the members' section correct?

¶ 50 OFFICER: Yes.

¶ 51 MR PENNEY:  All right. Now, I don't want to go over all those questions again because you have given the answers and His Honour is listening carefully ... do you now want to change your answers to any of these questions because I do want to be fair to you?

¶ 52 OFFICER:  No.

¶ 53 MR PENNEY:  You have given all of those answers and you have just indicated to His Honour that you had no reasonable and probable grounds to believe that he was in possession on May 28th, 2003, March 10th, 2005, or any date in between? Correct? That is the answer you just gave His Honour.

¶ 54 OFFICER:  Yes.

Crown:   D. Moull & P. Enright, Office of the Crown Attorney, Newmarket
Defence:  Craig Penney, Criminal Defence Lawyer, Newmarket

¶ 1  THE COURT:  Mr. Enright.

¶ 2  CROWN:  Thank you, Your Honour. Returning to the Mr. L. case, which we commenced yesterday.

¶ 3  THE COURT:  Okay.

¶ 4  CROWN:  After some consideration we have decided, Mr. Moull and I, that we are not going to examine the affiant, Detective Constable L., nor are we going to call any evidence on the motion. As a result, I am going to withdraw our application to tender the evidence that was acquired through the two search warrants, which has been — really, the focal point of the hearing thus far in the case. The Crown's case rests entirely on the seizure of materials from the residence at [N.L.'s address]. Accordingly, I will, in a few minutes, ask the Court to acquit the applicant, since I will not be calling further evidence. What is really factored into this decision is this. There is, of course, a continuing duty on Crown Counsel to continually assess reasonable prospect of conviction, even when a case begins. Usually that is done well in advance, as it should be, but sometimes things change in the course — the dynamics of a hearing, which causes the Crown to have a second and third look at it. That is something that Mr. Moull and I did diligently over the lunch hour today.

¶ 5  I have concluded that there no longer exists a reasonable prospect of conviction, based essentially on the testimony of the affiant, during this application. As you know, and as Mr. Penney knows, apart from the affiant's testimony, there were issues surrounding the two warrants. The majority of the applicant's alleged shortcomings, with the informations backing the two search warrants, we were quite prepared — we, the Crown, were quite prepared — to meet with arguments and case law to suggest essentially, as Mr. Moull, I think, made it fairly clear in his response to the notice of application, that natural common sense inferences could be drawn from established facts — established facts through the Canadian and American investigation. Natural common sense inferences could be drawn the issuing justice who, of course, is charged with making an independent judicial decision, as to whether or not the grounds for a search warrant exist, and whether or not permission ought to be given to the peace officer to seize personal property. That has been, and continues to be, our position.

¶ 6  There was another issue. The issue, as you learned, the later return of the first warrant. It was not returned to the Justice of the Peace, as is required, "as soon as practicable." And again, in our submission, that lapse was not fatal to the admission of the evidence gathered from the bank regarding the credit card activities. That would have been our argument probably tomorrow, when we got to that stage.

¶ 7  What has changed is this. This morning in her testimony, Detective Constable L. essentially disavowed some of the necessary bases premising any reasonable probable grounds. Now, while I personally do not agree with her answers in this regard, it obviously does go some distance in making out the defence case here on the application. And, so, what Mr. Moull and I struggled with over the lunch hour, and earlier this morning during the break, was whether or not we ought to attempt to rehabilitate Detective Constable L's answers by engaging in a cross-examination of our — on our own, which of course we would be permitted to do. But I adjudged, rightly or wrongly, that by suggesting questions to Detective Constable L., as to what perhaps the better answer would have been, might not be appropriate under the circumstances of this case. That is the decision I have made, and that is the decision I am going to live with.

¶ 8  So, in the final analysis, this is a case where after some difficult consideration, I have concluded that we no longer have a reasonable prospect of conviction based on the likely event that the Court, in making its ruling on a section 8 application, would exclude the evidence. About six thousand images of what the Crown alleges are child pornography were actually seized from the evidence — sorry, from the residence of [N.L.'s home]. Now, in fairness to Mr. L., those six thousand images were really a "drop in the bucket," because there were hundreds of thousands of other images, which would be considered adult pornography, or legal pornography. I know that had the case proceeded on the merits, his defence on the merits would have been that there was such a small percentage of images of what could constitute child pornography, that it would affect his mens rea — that perhaps he was not so diligent in downloading these images, that he didn't realize what he was downloading. And, as we all know from the evidence, he made but one visit back in May of 2003. He made but one visit to this child pornography site. There is no evidence here that he repeatedly went back to the site, and so it would have factored, I suppose, in his defence on the merits that it was but one occasion, and he didn't realize what he was downloading.

¶ 9  That, of course, is really all conjecture at this point, because we are not going to go that far. But I thought I should put on the record some appropriate reasons as to why I am going to bring the prosecution to a close now, because a lot of work has been done by the applicant, and by Mr. Moull, my colleague, in terms of responding to these issues. I know the Court has only had a couple of days to come up to speed, but you have come up to speed, on the materials too. It is a difficult decision that you would have had to make, but frankly, given the vive voce testimony of Detective Constable L. this morning, I think the defence could not have had a more successful cross-examination. That is really what causes me, at this stage, to intercede and conclude that there no longer exists a reasonable prospect of conviction. So, having put all of those reasons on the record, I will formally announce that we are calling no further evidence on the trial proper in this case, and obviously, I will invite the Court to find the defendant "not guilty."

¶ 10  THE COURT:  All right. Thank you, Mr. Enright. Mr. N. L., would you stand up, please. I have heard a lot about this case — a lot more than I knew even five minutes ago, but I think one thing is clear in this particular case, that Mr. Enright is doing what a Crown should do, which is consider and keep considering a reasonable prospect of conviction. When we look at what the evidence is in this case, it is clear to me that all of the things that he touched upon were things that I had concerns with, as well. I am also heartened to hear what the defence may well have been in this case, because I think that is something that the Crown needs to consider, as well, when you are looking at the reasonable prospect of conviction. I too was concerned. I think Mr. Enright's characterization of Detective Constable L.'s evidence in cross-examination — there could hardly have been a more successful cross-examination. Not to say that it was any way other than — that the answers that were ultimately given, were beneficial to the defence position in this case.

¶ 11  So, that is what is left after all of the evidence was heard with respect to the Crown's case and to their position with respect to this search. So, I am going to acquit you, of course, because I must. I have been asked to, and the evidence does not support a conviction. You will be found "not guilty" of the offence before the Court. Thank you very much. Thank you, Mr. Penney, for your very thorough job. Thank you Mr. Enright and Mr. Moull for a very thoughtful prosecution.

¶ 12  CROWN:   Thank you very much, Your Honour.

¶ 13  MR PENNEY:   Thank you, Your Honour.