Crown: R. Garwood-Jones, Office of the Crown Attorney, Milton
Defence: Craig Penney, Child Pornography Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: This is in the matter of the Queen and Issac. I, today, give my ruling on the defence application to quash the two search warrants in this matter. The defence application is granted for the following reasons. The defence attacks the two warrants that were used in the course of the investigation of this prosecution. One of the warrants was obtained by the Toronto police, the other by the Halton police. I find no fault in the manner in which the Halton police obtained and executed the warrant and any defects in the processing of that warrant were of a technical nature only and would not warrant quashing the warrant.¶ 2 The matter of the Toronto warrant is another matter entirely. The Toronto police have a unit that is dedicated to the investigation of internet pornography and child pornography in particular. The officer in question is engaged on a day to day basis in surfing the Internet to try to identify persons who are engaged particularly in the traffic in child pornography. This is what he is trained to do. This is what he does for a living. In this case, he did find, on his evidence, a person who was engaged in this activity. He was able to determine that this person was a customer of a local internet service provider and obtained a warrant from the court to obtain account information from the internet service provider in order to further his investigation. He neglected to make a return after he had executed that warrant as is prescribed in the Criminal Code and as is required pursuant to the Charter which requires ongoing judicial supervision of search and seizure powers by police. ¶ 3 If this had been merely an oversight in this one case, I would not have viewed it as a basis for exercising my discretion to quash the warrant in the balancing exercise under the Charter. However, that was not the case. The police evidence was that routinely warrants such as these were not returned to the judicial officer who issued them and that the officer in question did not realize that it was necessary to do so. This is a fundamental shortcoming in the training and supervision of police engaged in this sort of investigative technique. That sort of fundamental misunderstanding about the nature and extent of police search powers and their responsibilities to make returns to judicial officers is a matter of institutional concern. In those circumstances it is appropriate that the Court exercise its discretion to quash the warrant. ¶ 4 I am mindful of how serious the charges are in this case, but the investigative techniques that are used by police in respect to obtaining information about users on the internet goes to the very core of these kinds of offences and therefore the institutional incompetence in this case arises specifically in the context of an offence of this seriousness to begin with and if this ill is to be addressed, it can only be addressed in a case such as this. ¶ 5 I am also mindful that the charges in this case relate, on the allegations, to a person who is alleged to be trading in pornography on the internet, not a commercial producer of them and while I, in no way, diminish the seriousness of the charges by making those remarks, I note that in the balancing exercise between the seriousness of the matter before the Court and the seriousness of the breach of the Charter right, it is hard to imagine, this is not a case where a commercial child pornographer has been identified and through misfortune the police have failed to comply with their Charter obligations. Issac, insofar as this can be said about anyone, alleged to be a routine trafficker in child pornography, not a producer of it or a trader of it on the internet, and in balancing the interests that are at stake here in order to ensure that there is compliance by police with their return obligations, if I do not exercise my discretion as I have described in this case, when would the Court be able to address this shortcoming in the police investigative techniques. ¶ 6 As a result of my decision in respect to the first warrant, the factual foundation of the second warrant falls and it is quashed for that reason. I need say nothing further about the specific grounds raised by the defence in respect of the second warrant. However, there was an institutional problem in that case that does need to be addressed in order to give some direction. ¶ 7 In that case, a return was made by the investigating officer by way of interoffice mail to the office of the justice of the peace. I understand this was done pursuant to a suggestion that had been made by justices of the peace in this region. It is important that both the police and the justices of the peace have some direction in order to ensure that what happened in this case doesn't repeat. What happened in this case was that the return was made and there was no response received. I understand that in other cases returns have been made by interoffice mail and that the returns have been processed by the justice of the peace, but the result of that processing has not been provided back to police but instead has been just placed in a court file. ¶ 8 The responsibility for ensuring that the return has actually been completed must rest with the police. That is because they are in the best position to ensure that the paperwork is actually maintained. However, the justices of the peace, if they are going to permit returns to be made by interoffice mail, a practice that strikes me as eminently reasonable and practical in routine cases, should ensure that their decisions on the releases are sent back to the investigating officer who sent the request to them so that that officer will know that the return process has been completed. I encourage the justices of the peace and the police to use this mechanism. I would not refer to it as interoffice mail since they are in separate offices, but any technique that will result in efficiency in police time and court time without diluting the attention that is paid to the return process is to be encouraged. In a region such as Halton where police may be located in many different parts of the region and the justice of the peace could be in any one of three courthouses on any given day, it makes sense not to require police to be driving all over the region in order to take care of what is a purely administrative task. However, it is important that the administrative task be completed and in order to facilitate the police in being satisfied that the task has been completed, the office of the justice of the peace needs to ensure that the returns are sent, or at least a copy of them, is sent back to the investigating officer who may then ensure that his file is complete. ¶ 9 As I indicated at the outset of these reasons, I viewed that shortcoming in the second warrant as nothing more than a minor or technical defect in this case and I would not have quashed the warrant for that reason. Nonetheless, I think it appropriate to give some direction in respect of that issue since I understand it has arisen as a matter of practice and might well arise again in other cases. That is my decision. [At this time, there was a break in the proceedings.] ¶ 10 CROWN: Your Honour, returning to the matter of Mr. I.C., I'll just, for the record, indicate that with respect to the distribution count there is a limited basis upon which the Crown could still continue with the prosecution. There is not with respect to the possession count, having regard to Your Honour's ruling. Taking that into account and in light of Your Honour's ruling I'm requesting that both counts be endorsed withdrawn at the request of the Crown. ¶ 11 THE COURT: All right. Madam Registrar, could I have the Indictment, please? This is the 25th? ¶ 12 CLERK: Correct. ¶ 13 CROWN: Yes. ¶ 14 THE COURT: Oral reasons given this date quashing both warrants. Following this decision both charges withdrawn at the request of the Crown. ¶ 15 CROWN: Thank you, Your Honour. ¶ 16 THE COURT: Thank you.