Toronto Child Pornography Lawyer

Possess Child Pornography — Toronto Criminal Lawyer

Client:  M.S., Accused
Complainant:  Kingston Police Service
Charges:  possessing, accessing, and making available child pornography


The Queen v. M.S.
Ontario Court of Justice, Kingston
Judge Wheeler
(acquitted: 19 May 2021)

Crown:   E. Foxton, Office of the Crown Attorney, Kingston
Defence:  Craig Penney, Criminal Defence Lawyer, Kingston

¶ 1   The applicant M.S. is charged with making available, possessing and accessing child pornography. The charges arise out of evidence located on his cellphone and on the micro SD card contained within his phone seized upon execution of a search warrant at his home on December 7, 2017.

¶ 2   The defence brought an application to exclude evidence under s. 24(2) of the Charter. The defence argued that the police breached the applicant's rights under ss. 8, 9, and 10(b) of the Charter. The Crown conceded that there was a breach of s. 8, but not to the full extent alleged by the defence, and also conceded that there was a breach of s. 9.

¶ 3   The police used a "dynamic" or "no-knock" entry, meaning that they used a battering ram to break open the front door to the residence just before 6:30 a.m. on December 7, 2017. Officers from the Emergency Response Unit (ERU) entered the home with weapons drawn, and with the express intent of taking the occupants by surprise. That objective was achieved: The applicant and his wife were in bed together, and their roommate, a Queen's University student, was also in bed in his room.

¶ 4   The Crown called all five members of the ERU who participated in breaking into and securing the residence, as well as the seven investigators who followed them into the residence, the student boarder, and a representative from Cellebrite, an independent company that did a data extraction on the applicant's phone at the request of the police. The defence did not call witnesses on the application.

¶ 5   I have concluded that the police breached the applicant's rights under ss. 8, 9 and 10(b) of the Charter, and that the evidence derived from the search warrant should be excluded under s. 24(2) of the Charter.

Overview of Charter issues

¶ 6   The defence argued that the police breached the applicant's Charter rights in several ways. The Crown conceded a portion of the s. 8 breach and conceded that there was a s. 9 breach. The arguments can be broken down as follows:

Decision to use dynamic entry (s. 8)

The defence argued that the Crown has not met its onus to justify departure from the requirement that the police knock and announce prior to entering a home. As part of this argument, the defence points to the lack of inspector approval and the lack of detailed notes by the officers who were involved in the decision.

The Crown argued that the use of dynamic entry was justified by the need to preserve digital evidence, and that this was not undermined by the lack of inspector approval or by the quality of officers' notes.

Use of rifles (s. 8)

The defence argued that even if the decision to use dynamic entry was justified, it was an unreasonable and unnecessary show of force for the ERU officers to use rifles.

The evidence was not clear on whether one or two officers used rifles. The defence argued that two officers had rifles.

The Crown argued that only one officer used a rifle, but that in any event the use of rifles did not make the search unreasonable in the manner of execution.

Delay in informing the applicant of right to counsel/ questioning him during the search (ss. 8 & 10(b))

The applicant was not informed of the right to counsel for over 20 minutes after the ERU officers secured the home and admitted the investigators. During that time period he identified a cell phone as his, and responded to a detective's questions that asked him for the phone's passcode and for his email addresses. The defence argued that this breached both s. 8 and 10(b).

The Crown conceded that the detective's questions breached s. 8. The Crown also conceded that the applicant was detained during this time period, but argued that in the circumstances there was no breach of s. 10(b).

Failure to take the applicant before a justice without unreasonable delay/within24 hours of arrest (s. 9)

The applicant was arrested at 11:20 a.m., on December 7, 2017. He was held overnight at the police station and appeared in bail court at 3 p.m. the following afternoon, contrary to s. 503 of the Criminal Code.

The Crown conceded that this breached s. 9 of the Charter.

Sending the applicant's phone to an outside company for data extraction (s. 8)

When unable to access all the data in the applicant's phone, the police sent it to Cellebrite, a private company, to do a data extraction. The police did not obtain an assistance order under s. 487.02 of the Criminal Code, nor did they seek to vary the s. 490(1)(b) order for detention of things seized. The defence argued that this breached s. 8.

The Crown argued that the search warrant permitted post-seizure examination of the phone and that no separate authorization was required to send the phone to Cellebrite, and also that this did not breach the detention order.

Decision to use dynamic entry (s. 8)

¶ 7   The search on December 7, 2017 was actually a second attempt to execute a search warrant at the applicant's residence. A previous warrant had been obtained, specified to be executed on December 5, 2017. However, a high priority call came in when the officers were on their way to the residence, and they were diverted to that call. As a result, Det. Fisher, who was in charge of the investigation, obtained a second search warrant for execution on December 7, 2017.

¶ 8   No specific authorization was sought for dynamic entry, although the search warrant application adverted somewhat obliquely to the possibility. In Appendix C to the information to obtain Det. Fisher stated:

49. I propose to execute this search warrant on Thursday, December 7th,, 2017, between 6:00am and 9:00pm. I plan to execute the search warrant at a time, and in a manner, that I believe will mitigate the opportunity for the destruction of evidence and the possibility to injury or harm to persons on the premise or officers acting in conjunction with me. The above is a date when members of the Internet Child Exploitation Unit and the Emergency Response Unit are available, as per the General Orders of the Kingston Police and good practice.

¶ 9   There was some inconsistency in the evidence over how and when the decision for dynamic entry was made. Det Fisher testified that it was not his decision, but was up to the ERU. Cst. Graham, who was the team lead of the ERU, testified that the decision for dynamic entry was up to the detective in charge of the case, but that the actual tactics used were up to the ERU. ERU officer Det. Fleming testified that the decision was made collaboratively by members of the ERU in consultation with Det. Fisher. ERU officer Cst. Lachapelle testified that it was an ERU decision made after listening to the detective's concerns.

¶ 10   Of all the ERU officers, it is my view that Cst. Lachapelle had the best recollection about the manner in which the decision was made. He testified that the investigating officer does not dictate to the ERU how to do things. He recalled that there was a briefing for the earlier intended execution on December 5, 2017. At that time Det. Fisher told them about the investigation, and the ERU members discussed it amongst themselves after he left. He recalled that he and Cst. Graham, as the "breachers" (meaning the officers who were actually going to break the door open) had a lengthy discussion where the major consideration was for the safety of the people inside. He testified that they do not want a guilty party to have time to think about their jeopardy and come up with a plan to prolong the situation that might put their own or the safety of other occupants at risk.

¶ 11   With respect to when that decision was made, I accept Det. Fleming's evidence that the decision for dynamic entry was actually made prior to December 7, in relation to the aborted attempt to execute a search warrant on December 5. Det. Fleming testified that the earlier decision was simply reconfirmed on the 7th. That makes sense to me, because there was no indication that the police had any new information that would have caused them to reconsider the earlier decision. This might well be the source of the ambiguity in the evidence about who made the decision that dynamic entry would be used on December 7. Furthermore, the fact that Det. Fisher's operations plan for December 7 contemplated dynamic entry in all likelihood reflected the results of the decision making process from December 5.

¶ 12   According to Kingston Police protocol, Det. Fisher was supposed to obtain the approval of an inspector to use dynamic entry. However, he only sent the operations plan to the inspector at 5:51 a.m. on December 7, shortly before the 6 a.m. briefing. He also testified that he prepared the operations plan shortly before sending it. He acknowledged that he was required to seek the inspector's approval before undertaking a dynamic entry. He had no recollection and no explanation for why he did not communicate with the inspector in a timely way prior to attending the 6:00 a.m. briefing and prior to having the ERU break into the applicant's residence at 6:25 a.m.

¶ 13   Det. Fisher did not seek approval from his inspector in relation to the aborted attempt to execute a search warrant on December 5, 2017.

¶ 14   Det. Fisher testified that in his view the dynamic entry was warranted because of the nature of digital devices sought and the nature of digital evidence that was expected to be found. In his view, a "knock and announce" entry carried too great a risk of loss, destruction or manipulation of evidence. In addition, he had learned through preliminary investigative steps that the suspect was using a virtual private network (VPN), and he knew that evidence can be difficult to obtain if a VPN connection is severed.

¶ 15   Det. Frawley, who is a computer forensics officer, gave similar evidence. He testified that he always has concerns about loss or destruction of evidence when cell phones are involved. Because of their small size, they can be easily hidden or destroyed. Furthermore, cell phones have become easier to encrypt and can be rendered useless from an evidentiary perspective simply by turning them off.

¶ 16  Det. Fisher also wanted to execute the warrant very early in the day, with the expectation of catching the occupants at home and by surprise.

¶ 17   Members of the ERU testified that the decision to use dynamic entry is made on a case by case basis. Here, given the nature of the evidence sought, it was determined that dynamic entry was the best option for preservation of evidence, as well as being safest for the police and the occupants. The officers testified that they consider many factors apart from the type of evidence sought, which would include how many residents were expected to be inside the home, and the presence of elderly persons, children and dogs.


¶ 18   The common law requires that before forcing entry into a residence, the police must do what has come to be called "knock and announce." In Eccles v. Bourque, [1975] 2 S.C.R. 739, 19 C.C.C. (2d) 129, Dickson J. (as he then was) set out the three components to this, and the need for exigent circumstances to justify departure from these rules, as follows (at p. 134 C.C.C.): In the ordinary case the police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required.

¶ 19   The case law does not require the police to seek prior judicial authorization to depart from the common law rules, but the onus is on the Crown at trial to establish that there were exigent circumstances that made it necessary. The evidence must establish that "the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence." The greater the departure from the common law rules, the heavier the onus. See R. v. Cornell, 2010 SCC 31 at para. 20; R. v. Thompson, 2010 ONSC 2862 at paras. 36- 38, 44, 59-60.

¶ 20   Judicial review of dynamic entry must be assessed by what was or reasonably should have been known to the police at the time (Cornell, at para. 23). Furthermore, the police must be allowed some latitude in how they decide to enter a residence. The reviewing court "is to appropriately balance the rights of the suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback" (Cornell, at para. 24).

¶ 21   R. v. Burke, 2013 ONCA 424 is particularly relevant and important. The police obtained a search warrant in relation to child pornography offences. The police battered down the door to the accused's apartment. Some officers were wearing masks. They entered with guns drawn and yelled at the accused to get down on the floor. The lead investigator acknowledged that the decision to use dynamic entry was not based on an individualized assessment, but on internal police policy to use dynamic entry for search warrants seeking child pornography files, because of the ease with which digital files can be destroyed or encrypted.

¶ 22   The Court of Appeal upheld the finding that there was no s. 8 breach in the dynamic entry given that the trial judge had accepted the investigating officer's evidence that digital files may be quickly rendered inaccessible or destroyed. Weiler J.A. held (at para. 51) that there was "no basis upon which to interfere with the trial judge's conclusion that the element of surprise accompanying a no-knock entry was warranted given the need to prevent destruction of evidence."

¶ 23   With that framework in mind, I turn to consider the specific complaints raised by the defence relating to the decision to use dynamic entry.

¶ 24   Lack of notes. The courts have not required the police to seek prior judicial authorization to effect a dynamic entry. Rather, the reasonableness of the police conduct is reviewed after the fact. I agree with the defence argument that, like other extraordinary police powers that are subject to after the fact review, this creates an increased obligation on the police to keep detailed notes. See, for example, R. v. Golden, 2001 SCC 83 at para. 101; R. v. Fearon, 2014 SCC 77 at para. 82.

¶ 25   Despite the paucity of notes, I have concluded that the Crown has put forward sufficient evidence to enable a meaningful review of the reasonableness of the dynamic entry decision. I rely in particular on Cst. Lachapelle's evidence about the detailed discussion that he had with Cst. Graham.

¶ 26   Lack of inspector approval. In Golden, Iacobucci and Arbour JJ., writing for the majority, found that the failure to notify or seek authorization from a senior officer to strip search a suspect contributed to the finding that a strip search was conducted in an unreasonable manner. See para. 113. However, in Cornell, the Supreme Court was unconcerned about missing paperwork and some lack of communication between the investigative team and the tactical team as regards risk assessment in relation to dynamic entry. Cromwell J. adopted Slatter J.A.'s comments in the Court of Appeal, that "[t]he real question is whether the type of search that was conducted was reasonable given the facts collectively known to the police" (at para. 37).

¶ 27   Pursuant to internal Kingston Police policies, it was expected that Det. Fisher would seek his inspector's approval for dynamic entry. Det. Fisher did not seek approval for dynamic entry in relation to the aborted attempt to execute a search warrant at the applicant's residence two days earlier, on December 5, 2017. The timing of his request for approval on December 7 (sent at 5:51 a.m.) meant that it was not realistic to expect that the inspector would even read the email prior to the officers arriving at the applicant's residence, let alone prior to the 6 a.m. briefing. Furthermore, it is not clear to me what materials Det. Fisher provided to the inspector.

¶ 28   The courts have not required the police to obtain prior judicial authorization to derogate from the knock and announce rule. In my view, this increases the significance of adhering to internal policies such as this, which can only be in place to ensure that the power is used appropriately.

¶ 29   However, given what was known by the police and given the case law on dynamic entry, in particular Burke, I find it likely that the inspector would have approved the dynamic entry. Furthermore, as addressed below, I find that the decision to use dynamic entry was reasonable in the circumstances.

¶ 30   Although I am troubled by the failure to follow police protocol on this issue, I find that it did not in the circumstances amount or contribute to a breach of s. 8 of the Charter.

¶ 31   Overall reasonableness of the decision to use dynamic entry. I accept that the police had legitimate concerns about loss or destruction of evidence, whether by encryption or more brute force methods such as submersing a phone in water or dropping it down a duct where it might be unlikely to be discovered. A micro SD card can be ejected from a phone with a paperclip, and is only about half the size of a postage stamp. It could be easily concealed. The evidence spoke to all of these things. (In addition, see R. v. Adler 2020 ONCA 246 where the suspect swallowed a memory card from a video camera.) However, the evidence also addressed the fact that it is not easy to delete digital files in a permanent way that renders them inaccessible to forensic investigators.

¶ 32   I find that safety concerns are not relevant to the analysis here. On the evidence presented, they did not rise above a generic concern that a suspect who realizes that the police are onto them with respect to a highly stigmatized crime might react with panicked desperation.

¶ 33   I do not agree with the defence argument that executing the warrant in the ordinary way, by knock and announce, would be just as effective if not more effective than dynamic entry, because the suspect could be controlled immediately upon answering the door. It is easy to foresee how knocking at the door and waiting a reasonable amount of time for an answer (as required, see R. v. Pan, 2012 ONCA 581 at para. 40) could have resulted in loss of evidence. The suspect could have looked out and seen the police at the door prior to answering it. Or, if someone else answered the door, the suspect could be near enough to realize that it was the police. Unless the police effectively barged in the door the moment it was answered (which would itself not comply with knock and announce), a suspect with a guilty conscience, potentially primed with concern about being discovered, would have a window of opportunity to hide or destroy evidence.

¶ 34   The defence argued that if the need to ensure preservation of digital evidence was sufficient to justify dynamic entry in this case, it would tend to suggest that it could be justified anytime the police have a search warrant that is based on possession of illicit digital content. However, the Court of Appeal's decision in Burke provides strong support for the Crown's argument that the dynamic entry was justified by concerns about preservation of evidence. Certainly, the element of surprise was the best bet to address that.

¶ 35   The defence relied on R. v. Bahlawan, 2020 ONSC 952 where use of dynamic entry was found to violate s. 8 of the Charter. In that case, the evidence showed that the police never considered the possibility of non-dynamic entry. The trial judge concluded (at para. 43): "I cannot uphold a decision-making process that simply did not occur." Here, the police did turn their minds to whether dynamic entry was or was not justified.

¶ 36   In Burke, the police had learned through a ruse that the suspect appeared to live alone in his apartment. They also knew that the suspect was a computer programmer. However, the decision to use dynamic entry in that case was not based on an individualized assessment, but rather was based on internal police policy that arose from the ease with which a suspect can destroy or encrypt digital files before answering the door.

¶ 37   As indicated, I accept that there were legitimate concerns about loss or destruction of digital evidence. Based on Burke, I find that the Crown has met its onus to justify use of dynamic entry.

¶ 38   I make that finding with some misgivings. I am troubled by how little information the police had about the applicant's residence and who lived there prior to making the decision to effect a dynamic entry. The information to obtain reveals only that the police believed the home was occupied by the applicant and his wife, that the applicant worked as a high school teacher, and that there were two, or possibly three vehicles associated with the residence. Prior to executing the search warrant at the home, the police did not know exactly how many people lived there, whether they had any particular vulnerabilities (advanced age, young age, mental or physical disability), whether there were pets, or whether there was any predictable household schedule.

¶ 39   In Cornell, the Supreme Court held that a reviewing court must assess police conduct in light of "what was or should reasonably have been known to them at the time", and must "appropriately balance the rights of suspects with the requirements of safe and effective law enforcement." This speaks to a cost/benefit analysis, and if a reviewing court must conduct that balancing, then presumably the police should also. In the case of digital evidence, that balancing would have to include the fact that, as outlined in the information to obtain here, it is possible to retrieve data long after it has been deleted by a user. It seems to me that particularly where dynamic entry is said to be justified by the potential loss of digital evidence, the police ought to conduct some sort of cost/benefit analysis to decide whether those concerns outweigh the impact on the occupants, and that sort of assessment ought to require more preliminary investigation than was done here. That said, the evidence put before me on this application would not indicate that additional investigation would have tipped the balance against dynamic entry.

Use of rifles by ERU officers (s. 8)

¶ 40   The applicant's residence was a detached home in a residential neighbourhood. The ERU officers first checked to see whether the door was locked. Upon finding that it was, they used a battering ram to break it open. Five ERU officers went in. As the first officers entered, they called out that they were the police, executing a search warrant.

¶ 41   The ERU team accounted for everyone in the residence within 60 seconds or less after they went in. They then admitted the seven investigators. Cst. Lachapelle testified that this was a very easy entry, and the ERU role to secure the premises was quickly accomplished. ERU officer Det. Fleming testified that once everyone is accounted for, the ERU officers remain inside to support the investigators, essentially acting as scene security. The ERU officers remained on scene until 6:50 a.m. when Det. Fisher released them.

¶ 42   Of the five ERU officers, Cst. Cook was the only one who testified that he used a rifle. The other four testified that they had their 9 mm handguns drawn. However, the Queen's student testified that an officer with a rifle also briefly entered his room.

¶ 43   The officers were not wearing masks or helmets. They did not use a "flash bang" distraction device. There was no evidence that police officers raised their voices beyond the initial announcement of their presence and purpose. The occupants were simply told to put their hands in view. They were not told to get down on the floor. No one was handcuffed. On the whole, the home was impeccably tidy when the police arrived and there is no suggestion that the police caused any disarray. The damage to the front door frame appears to have been minimal.

¶ 44   Cst. Cook had a flashlight on his rifle but did not remember if he was using it when he went into the master bedroom where the applicant and his wife were in bed. He testified he pointed the weapon at the bed as he entered the room. The applicant and his wife were quite calm and very compliant right away. As soon as Cst. Cook saw that, he lowered the weapon and explained what was going on. He told them that they were Kingston Police officers, that they were executing a search warrant for child pornography, that he was a member of the Emergency Response Unit present to secure the residence, that the investigators would be along shortly to explain everything, and that he was not an investigator.

¶ 45   The Queen's student testified that he was asleep when the officers entered the home. It was dark. The officers immediately identified themselves as Kingston Police and told them to put their hands up, so right away he had a good idea of what was going on. The first ERU officer he saw had a rifle with a light on it, and that was the only light in the room until the officer turned the light on. The officer had the rifle at chest height but it was never pointed directly at him, and as soon as the officer saw him he pointed the rifle towards the sky. The police directed him to move to the guest room. He testified that it was traumatic to be woken up in this way, but that all the officers acted very professionally, and that he did not take issue with the officers' actions.

¶ 46   Cst. Cook testified that after the initial short period required to secure the residence, he kept his rifle with him, hanging on a sling on his vest, pointed straight down at the floor and with one arm across it.

¶ 47   Cst. Cook was not asked why he used a rifle rather than his side arm. Det. Fleming, a very experienced member of the ERU, testified that different factors can inform the choice of weapon - the threat level, the number of occupants, the presence of dogs and sometimes the officer's own choice.

¶ 48   No other ERU officer testified to entering the master bedroom. Cst. Lachapelle testified that he saw the applicant and his wife in the master bedroom but that he did not cross the threshold because everything was under control. He testified that they try not to overwhelm the occupants.


¶ 49   In Cornell, the accused argued that the use of masks by police made the search unreasonable. Cromwell J. held (at para. 31) that the task of a reviewing judge "is not whether every detail of the search, viewed in isolation, was appropriate," and cautioned against micro- managing the police's choice of equipment once it is determined that a no-knock entry was justified.

¶ 50   In Burke, the Court of Appeal also rejected the argument that the manner of conducting the dynamic entry (guns drawn, officers masked, officers yelled at accused to get down on the floor) was unreasonable and violated s. 8 of the Charter. Weiler J.A. held:

55 In addition, I am not prepared to say that the use of drawn weapons and masks rendered the overall search unreasonable. The appellant acknowledged that it was apparent that the persons in his apartment were the police. While he was understandably extremely frightened by the officers, there is no evidence that the police used any gratuitous or spiteful violence towards him. He was arrested and safely removed from his residence within minutes of police entry. He knew why the search was being carried out and knew that the police were authorized to carry out the search. The police left behind a copy of the warrant in the appellant's apartment.

56 Aside from some minor damage to the front door of the apartment, there was no evidence that the police caused any deliberate or unnecessary damage to the appellant's property. The police did not seize any materials beyond those identified in the ITO.

57 The fact that the appellant had no prior criminal record would not have affected the reasonableness of the police concern that he could readily destroy the evidence sought in the warrant. As the trial judge in Cornell observed: "A person without a criminal record could destroy evidence as easily as a person with a criminal record" (para 27). In addition, the appellant's lack of a prior criminal record would not provide assurance to police that he would react peacefully when confronted by police officers performing a no-knock entry. As Dickson J. commented in Eccles, at p. 746:"An unexpected intrusion of a man's property can give rise to violent incidents."

58 It may be that it is standard practice for the tactical unit of the police force to conduct a forced entry with guns drawn and with some officers wearing masks. In the absence of a concern for police safety, the element of intimidation accompanying the use of masks and drawn weapons may be unnecessary and is a cause for judicial concern. However, I am sensitive to Cromwell J.'s caution in Cornell, that, "[h]aving determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police's choice of equipment" (at p. 31). And as Cromwell J. made it clear, the role of the reviewing court is limited to assessing whether the search overall was reasonable.

¶ 51   There is a factual point to resolve in relation to the police use of rifles. Was Cst. Cook the only officer with a rifle, or did another ERU officer also have a rifle? If there was a second officer with a rifle, it seems most likely that it would have been Det. Fleming. I accept that Cst. Graham and Cst. Lachapelle, would not have had rifles because they used the battering ram and then went in last. I find that it is unlikely that Cst. Clarke would have had a rifle because he went in towards the back, and also he was not a regular member of the ERU. That leaves only Det. Fleming, who testified that he went in first, and that he entered a room on the right where one male was in bed. That has to have been the Queen's student's room. Det. Fleming testified that none of the officers used a rifle. Given Cst. Cook's evidence, he was clearly mistaken about that. Furthermore, I accept the Queen's student's evidence that he was woken up by an officer with a rifle. The event would reasonably be a lot more memorable to the Queen's student than it would be for Det. Fleming given the passage of time and his intervening duties. I find that it is likely that there were two officers with rifles.

¶ 52   It would have been helpful to have direct evidence from Cst. Cook about why he used a rifle. As events unfolded, with all occupants being extremely cooperative, it would seem that the rifles might have turned out to be an unnecessary show of force. However, it is not appropriate for me to conduct an after the fact assessment based on what did or did not transpire. Once the decision was made to conduct a dynamic entry, then looking at the situation as it presented itself to the officers prior to the search, they had no way of knowing whether this was going to be a very easy entry, or not. Furthermore, I can see that there would be an advantage to at least the first officers in having a weapon with a flashlight mounted to it, as the rifle did, until lights can be turned on. The officers' ability to see what is going on is crucial to their safety and to the safety of the occupants.

¶ 53   All of the ERU officers struck me as cautious and professional. They were mindful of the seriousness of the task, and wanted to accomplish it with as little trauma to the occupants as possible. Det. Fleming agreed with defence counsel that the rifle was more "firepower" than the sidearm, but stated the team members are heavily trained in dynamic entry, they do the task professionally, and they do not hang around intimidating people. Cst. Dale Clarke testified that his role was to assist in clearing the residence in a "safe and kindly manner."

¶ 54   When I balance the applicant's rights against the need for effective law enforcement, I find that the fact that one or, more likely, two officers were armed with rifles did not contribute to the s. 8 breach connected with Det. Frawley's questioning of the applicant.

Delay in informing the applicant of right to counsel/questioning him during the search (ss. 8 & 10(b))

¶ 55   The tactical team broke into the residence at 6:25 a.m. Very shortly afterwards they deemed it safe for the investigators to enter.

¶ 56   ERU officer Det. Fleming testified in chief that prior to the search Det. Fisher had provided the name of the male suspect as being the person "we were going in for to detain and then turn over to the investigating officers." In cross-examination he stated that he believed there were two potential suspects identified, a male and a female. ERU officer Cst. Graham testified that Det. Fisher identified the applicant as the "person of interest" at the briefing prior to executing the search warrant.

¶ 57   Cst. Cook, the officer with the rifle who went into the master bedroom, testified that he would have asked the applicant his name. He did not recall if the applicant needed to get dressed. He testified that he turned the applicant over to one of the investigators.

¶ 58   Det. Fisher first encountered the applicant in the living room or on his way to the living room. The applicant was then seated on the couch. The applicant had his hands behind his back. Det. Fisher told him that was not necessary.

¶ 59   Det. Fisher testified that from his perspective the applicant was detained only for perhaps 20 seconds when the police first encountered him, and that in his view the detention ended when all areas of the house had been secured. Det. Fisher initially testified that he told the applicant to stay on the couch while they completed the search, and then stated that he told the applicant to stay on the couch until they had secured all the occupants. He also testified that he told the applicant that as long as he was not interfering with the search, he was not under detention. He agreed that he did not tell the applicant that he was free to go.

¶ 60   Det. Fisher was unsure about whether he showed the applicant a copy of the warrant in that initial interaction, or whether he did that when he next interacted with the applicant at 6:50 a.m.

¶ 61   Det. Fisher did not advise the applicant of his right to counsel during their initial interaction. He testified that this was because he anticipated that as soon as all occupants were accounted for, the applicant would no longer be detained, he was not seeking to elicit any statements from him, and he also did not have grounds to arrest.

¶ 62   Det. Fisher then left the applicant sitting on the couch and was occupied with other tasks connected with the search, including an interaction with the applicant's wife in the basement at 6:35 a.m. No officer was able to recall how the applicant was dressed or whether he had shoes or footwear on when sitting in the living room during the search.

¶ 63   The operations plan for the search did not address anything to do with giving occupants their right to counsel. Det. Fisher testified that this is left up to individual officers, who are trusted to know what their obligations are if they arrest or detain someone.

¶ 64   In contrast to what happened with the applicant, Det. Lund advised the applicant's wife of her right to counsel almost immediately upon taking her to the basement. At 6:35 a.m., Det. Fisher then came to the basement. During a conversation with him, the applicant's wife indicated that she wanted to speak to counsel, and the officers facilitated that. The officers also facilitated calls to her workplace.

¶ 65   Similarly, Sgt. Hough informed the Queen's student of his right to counsel. She testified that she specifically told him that he was free to leave, but that she thought it prudent to read him the right to counsel and caution anyway. She also offered to let him use her phone if he wanted to contact counsel. Sgt. Hough testified that once the team identified everyone, she knew that the Queen's student was not the main target of the investigation.

¶ 66   Det. Fisher testified that he set certain tasks for other officers. He asked Det. Williams to take photos, and he asked Cst. Smith to be in charge of documenting seizure of exhibits. Otherwise there were no pre-defined or specifically assigned roles, and it seems that the officers substantially adapted to the needs of the situation. Sgt. Hough stayed with the Queen's student in his bedroom. Det. Lund and Det. Jamie Graham (as opposed to ERU Officer Cst. Geoff Graham) stayed with the applicant's wife. However, no one stayed with the applicant.

¶ 67   During the time when the applicant was left alone in the living room, Det. Smith located a Samsung Galaxy S7 phone in the master bedroom. It had an alarm sounding. She believed that she stopped the alarm by pressing or swiping something on the phone. It was not necessary to unlock the phone to do that, and she did not seek input from any other officer prior to silencing the alarm, whether by snoozing it or turning it off.

¶ 68   Det. Frawley retrieved the Samsung Galaxy S7 from Det. Smith, and spoke to the applicant about it. This was at approximately 6:35 a.m., just 7 or 8 minutes after he had entered the residence. The applicant acknowledged that the phone was his. Det. Frawley could not recall if that was something that the applicant volunteered or whether he asked. Det. Frawley asked the applicant if there was a security lock on the phone and what it was. The applicant gave him the passcode pattern for the phone. Det. Frawley was unclear about why he asked the applicant for the passcode. He thought perhaps it was because the alarm was ringing and that was the only way he could shut it off.

¶ 69   Det. Frawley made a note of the passcode pattern in his notebook. He also used the pattern to unlock the phone and made note of the fact that the main screen showed an app called "PIA" which stood for Private Internet Access. He testified that this app is used for internet privacy.

¶ 70   Det. Frawley also asked the applicant about email accounts, and made note of four different email addresses that the applicant provided to him. He asked this because the information from the National Child Exploitation Coordination Centre that initiated the investigation had included a particular email address associated with the account on the Kik app that was sharing child pornography.

¶ 71   Det. Frawley did not inform the applicant of his right to counsel prior to asking him for the passcode and asking him about email addresses. He had not been with the applicant for the entire time up until then. He did not know and did not make any inquiries about whether the applicant had already been informed of his right to counsel, or whether he had waived it or indicated that he wanted to exercise it.

¶ 72   Det. Frawley did not recall whether the ERU officers were still present when he interacted with the applicant, but they must have been, because they had not yet been released from the scene, the house was not large, and the applicant was in the main living area.

¶ 73   Det. Frawley's evidence was somewhat equivocal on the issue of detention. He did not readily acknowledge that the applicant was subject to at least a degree of psychological detention. He testified that at any search warrant he had attended, if a person is not under arrest, "they realize that they're free to go." Det. Frawley eventually agreed that with hindsight it would have been prudent to inform the applicant of his right to counsel and/or to know what the status of his s. 10(b) rights was prior to interacting with him.

¶ 74   Det. Fisher next interacted with the applicant after he released the tactical team. He testified that at 6:50 a.m., he informed the applicant of his right to counsel, and told him that he was not being detained or arrested. He testified that he was simply at that point reminding the applicant that he was not detained.

¶ 75   The applicant spoke with duty counsel shortly afterwards, using one of the police officer's phones. Shortly after that, Det. Frawley asked him for the password for a MacBook laptop that was found in a knapsack by the front door, but the applicant told him that he had been advised not to provide it.

¶ 76   Once back at the police station, Det. Frawley removed a micro SD card from the Samsung Galaxy S7 phone. Det. Williams took the phone to extract data, while Det. Frawley extracted data from the micro SD card. Examination of the SD card did not require use of the passcode, but extraction of data from the phone required that certain settings on the phone be adjusted, and the passcode was needed for that. Det. Williams believed that the phone was already unlocked when it was handed over to him, because his notes only stated that the passcode was known to the investigator.

¶ 77   Det. Frawley showed Det. Fisher the results of some the data extraction from the phone and the micro SD card. At that point, Det. Fisher knew the phone belonged to the applicant and given the nature of the images found, Det. Fisher had grounds to arrest the applicant.


¶ 78   The Crown appropriately conceded that Det. Frawley's questions to the applicant breached s. 8 of the Charter on the basis that the request for the passcode conscripted the applicant to participate in the search of his own device. I agree with that concession. See R. v. Harris 2007 ONCA 574 at paras. 33-44.

¶ 79   Although the Crown did not concede that there was a violation of s. 10(b), the Crown did acknowledge that the applicant was detained when Det. Frawley found out that the phone belonged to the applicant, and asked him for the passcode to his phone and for his email addresses.

¶ 80   I agree that the applicant was detained when questioned by Det. Frawley. The interaction occurred less than 10 minutes after an ERU officer, dressed in tactical militaristic gear pointed a rifle at the applicant in bed, and while the ERU team was still in the residence. The applicant remained sitting on the couch where he was first directed to go by the search team.

¶ 81   Given Det. Fisher's lack of notes on the issue, his lack of recollection on other points, and the fact that he his recollection was proved to be incorrect at least with respect to the important point about what he told Cellebrite (discussed below), as well as the passage of time, I have difficulty accepting as reliable his evidence that he told the applicant clearly that he was not detained. At its highest, Det. Fisher told the applicant that he was not detained as long as he did not interfere with the search. That meant that the applicant was not in fact free to move around his home, or even change his clothes or gather what he needed to leave the home if he wanted without police supervision. Furthermore, given the totality of the circumstances relating to the dynamic entry, it would in my view have taken a very clear statement to the applicant to undo the actual and psychological detention he initially experienced.

¶ 82   I find that the applicant's right to counsel under s. 10(b) of the Charter was breached. The ERU team entered at 6:25 a.m. All of the occupants were immediately cooperative and compliant, and in very short order the ERU deemed it safe to admit the investigators. Det. Lund advised the applicant's wife of her right to counsel at 6:26 a.m. The applicant was not informed of his right to counsel until 6:50. Det. Frawley interacted with him at 6:35 a.m.

¶ 83   The police conduct breached s. 10(b) of the Charter in two separate ways (see R. v. Noel, 2019 ONCA 869 at paras. 18-19): * First, the applicant should have been informed of his right to counsel promptly. Officer safety and preservation of evidence were no longer concerns once the ERU gained control of the occupants and admitted the investigators, and yet the applicant was not even informed of his right to counsel for over 20 more minutes. This delay was unjustified. Even if concerns about officer safety or preservation of evidence had persisted, this would only have justified delay in implementing the right to counsel, but not delay in informing the applicant about his right to counsel. See R. v. Rover, 2018 ONCA 745 at paras. 25-28. * Second, Det. Frawley interacted with the applicant during that time period, when he should already have been provided with his right to counsel. The interaction that occurred in breach of s. 10(b) included the applicant incriminating himself by identifying the phone as his (whether or not this was in response to a question from the officer), and providing his passcode and his email addresses in response to questions from the officer.

Failure to bring the applicant before a justice without unreasonable delay/within 24 hours (s. 9)

¶ 84   Det. Fisher had grounds to arrest the applicant at 10:38 a.m. He returned to the residence and arrested the applicant at 11:20 a.m. He informed the applicant of his right to counsel. The applicant advised that he had contacted counsel and was waiting for a call back. The applicant was presented before a justice of the peace in bail court at 3 p.m. the next day, a delay of 27 hours and 40 minutes from arrest.

¶ 85   In 2017, bail court in Kingston commenced at 2 p.m. (This has since changed.)

¶ 86   Det. Fisher testified that his mind turned to the bail process as soon as he knew he would be arresting the applicant. Given the nature of the charges, he knew that the issue of release from custody needed to be addressed in bail court.

¶ 87   The applicant entered the booking area at the police station at 11:39. After booking he spoke to counsel. Fingerprints and photographs would have taken 30-45 minutes, and then he was lodged in a cell.

¶ 88   At 1:30 p.m., Det. Fisher was in Det. Frawley's office where Det. Frawley showed him more images that in Det. Fisher's view met the definition of child pornography. This was the last entry in Det. Fisher's notes for the day. Det. Fisher did not know how late he worked that day.

¶ 89   Det. Fisher drafted various documents: the charges; a court tracking form that listed the charges, witnesses and exhibits; a synopsis; an arrest report; and a bail hearing report that addressed issues relating to potential release and Det. Frawley's position on the relevant risk factors. He testified that all of these documents were required before a person can be taken to bail court, and that given the nature of the investigation he was the only officer who could prepare them, so "it took the time it did."

¶ 90   Det. Fisher acknowledged that it only took him about 20 minutes to prepare the information, and that it would take only 10 minutes to drive the applicant to the courthouse.

¶ 91   Det. Fisher testified that once he submits the paperwork and tells his supervisor that the brief is complete, he does not know how a case actually makes its way to bail court. He was not aware of any hard and fast rule about when the paperwork has to be done into order to get a person to bail court in the afternoon. He did not know how late the bail court sat on December 7, 2017.

¶ 92   Detective Fisher acknowledged that there is no hard and fast cut off time about when an accused has to be at the courthouse in order to appear in front of a justice that day. He did not have any note or recollection of when during the afternoon he knew that he was not going to get the applicant to court on the afternoon of December 7th, but stated that he knew as soon as he arrested the applicant that he was "against the clock."

¶ 93   Det. Fisher did not reach out to Crown counsel or make inquiries about having the applicant appear before a justice prior to the scheduled 2 p.m. start for bail court on December 8. He testified that he was not aware that he could exercise any influence over the time that the applicant appeared in court.

¶ 94   Det. Fisher interviewed the applicant on the morning of December 8, 2017 over the course of an hour, starting at 8:05 a.m. He testified that there was plenty of time to do this before the applicant was taken to court that day. When asked why he did not interview the applicant on the day of his arrest, Det. Fisher testified that he did not know why, but that he also knew that the applicant would be there in the morning.

¶ 95   Det. Fisher described the applicant as inconsolable, distraught and dejected: the applicant knew the charges were going to change the "trajectory of his life." After asking for the video to be turned off, the applicant told Det. Fisher about being a victim of past abuse, and said he had been tortured by a step-brother who was now in jail. He also talked about being anxious about dying. Det. Fisher testified that these are not uncommon conversations to have with someone in the applicant's position. When asked if he was concerned for the applicant's well-being he testified that he had grown accustomed to seeing people in that state, and that he did not recall being concerned for the applicant's imminent safety.


¶ 96   The Criminal Code establishes the following time periods for bringing an arrested person before a justice if the person is not released by the police: 503. (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law: (a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period. (b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

¶ 97   There was no suggestion that a justice was not available within the 24 hour period. The applicable provision is therefore s. 503(1)(a), such that the police were required to take the applicant before a justice without unreasonable delay and in any event within the 24 hour period.

¶ 98   The Crown conceded that the police breached the applicant's right under s. 9 of the Charter not to be arbitrarily detained, on the basis that he was not bought before a justice within the 24 hour period. I agree with the concession but also find that the s. 9 breach was more serious in that the police did not observe the "without unreasonable delay" rule both on the afternoon of December 7, and in the morning of December 8. Given the time of arrest, it seems likely that all tasks connected with taking the applicant into police custody (booking, consultation with counsel, fingerprints and photographs), were likely complete by 1 p.m. In my view, the police failed to take reasonable efforts to take the applicant before a justice that afternoon, or the following morning.

¶ 99   Det. Fisher testified that he knew the clock was ticking on his ability to get the applicant before a justice on the day of his arrest. He also knew that, at the time, bail court in Kingston had a scheduled start time of 2 p.m.

¶ 100   Det. Fisher's lack of notes and inability to recall the afternoon's events with much precision makes it difficult to assess whether he acted with appropriate diligence in trying to get the applicant before a justice on the afternoon of December 7. Given the time of the arrest, Det. Fisher had to have known that in order to comply with s. 503(1)(a) he had to move quickly in order to get the applicant before a justice in the bail court that afternoon, or he had to request that some special or extra steps to have the applicant appear before a justice in the morning. Simply defaulting to the 2 p.m. bail court on December 8 guaranteed that s. 503(1)(a) would be breached.

¶ 101   Given that he knew in advance that he was up against the clock, there were some steps that Det. Fisher could perhaps have taken to create a bit of space in the day to complete the reports in a timelier way. He could have delegated the arrest to another officer. He could have had the fingerprints and photographs taken on another day (although it is not clear to me whether Det. Fisher participated in that, so it may not have had a bearing on the delay).

¶ 102   Of more concern is Det. Fisher's evidence that he was unaware that he could influence the process towards having the applicant appear before a justice earlier than he did. Efforts should have been made to communicate with the local Crown's office or the court office to see if steps could be taken to avoid an otherwise inevitable breach of s. 503 of the Criminal Code if the applicant was simply held until the afternoon of December 8.

¶ 103   I find that the police violated s. 503 both by failing to bring the applicant before a justice without unreasonable delay and by failing to bring him before a justice within 24 hours. This breached the applicant's right not to be arbitrarily detained, pursuant to s. 9 of the Charter.

Sending the phone to Cellebrite (s. 8)

¶ 104   The Kingston police were unable to access all the data on the applicant's phone. In February 2018, Det. Fisher sent the phone to Cellebrite, a company that specializes in retrieving data from phones. The Crown called Daniel Embry, a representative from Cellebrite, to testify to the company's processes and operations. Cellebrite retrieves data from phones and puts it on a storage device. It does not look at or analyze the data in any way. Cellebrite returned the phone to the Kingston Police along with a 64 GB thumb drive of the extracted data. Det. Frawley described that as a "blob of data", and testified that specialized software tools were still required to access it.

¶ 105   At the company's request, Det. Fisher signed a letter stating that there was a valid court order for Cellebrite to examine the phone. Det. Fisher testified that he believed the search warrant provided the necessary authority, and that an assistance order under s. 487.02 of the Criminal Code was not required.

¶ 106   In Det. Fisher's view, an assistance order would only be required if the police wanted third party assistance in the initial execution of the search warrant at the applicant's residence. He distinguished between the search at the residence and the examination of the phone as being separate activities, and resisted any characterization of Cellebrite's involvement as being a search that required separate authorization.

¶ 107   Det. Fisher testified that he believed that the search warrant provided the necessary authority to send the phone to Cellebrite, in that the search warrant was what put the police in lawful possession of the phone, and that this was all that was needed for the police to then take all necessary steps to examine it for evidence of the offences specified in the search warrant.

¶ 108   Det. Fisher acknowledged that he never turned his mind to whether he needed to get a variation of the order for return/retention of items seized. He did not agree that the phone had left the custody of Kingston police when it was sent to Cellebrite, because he would always know where to find the phone.

¶ 109   Det. Fisher shipped the phone to Cellebrite using FedEx. This was the company's standard way of conducting business with police forces. Det. Fisher testified that this is also police practice when they need to send seized items to another location, such as the Centre for Forensic Sciences or to an expert.

¶ 110   Det. Fisher acknowledged that since it is illegal to possess child pornography, a court order is sought to provide disclosure of child pornography to defence counsel, to ensure that it is lawful to provide it and lawful for counsel to possess it. He testified that this was not a consideration in his decision to send the phone to Cellebrite, because they were not asking Cellebrite to access the data, they simply wanted the company to make a copy of the data and send it back. In his evidence in chief he testified that the company did not know what was on the device and that he could not say whether he ever told them what type of investigation was involved. He had no notes and no recollection, but stated that perhaps by virtue of his email signature that showed him as an investigator with the Internet and Child Exploitation unit, Cellebrite might have pieced it together. However, upon reviewing his email correspondence with the company, Det. Fisher acknowledged that this was incorrect, and that he did alert the company that the police anticipated that there would be child pornography on the phone.


¶ 111   In R. v. Yabarow, 2019 ONSC 3669, Dambrot J. summarized the law with respect to searches of electronic devices, as follows: 12 The examination of an electronic device such as a computer or a cell phone raises privacy issues that do not arise in most other contexts. In this context, there are usually two distinct intrusions into privacy, one entitling the authorities to search for and seize the device, and another to examine its content. Each must be authorized by law. As a result, it was established in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657(S.C.C.), that the general principle that authorization to search a place includes authorization to search places and receptacles within that place gives way, in the case of computers and cell phones, to the requirement for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization. Both the search for the electronic device itself, and the subsequent examination of its content, which is, itself, a search (see R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621(S.C.C.)), must be justified by showing reasonable grounds for the search. In the case of the content of the devices, an informant must satisfy the justice that the things sought are accessibly in the device and will afford evidence of the named offence.

¶ 112   The defence argued that having Cellebrite extract data from the phone was a search, and even though the company was willing to provide assistance without being compelled to do so by court order, an assistance order under s. 487.02 of the Criminal Code was required. The Crown argued that the search warrant provided the necessary authority for the police to send the phone to Cellebrite, and that no additional judicial authorization or order was required.

¶ 113   Section 487.02 of the Criminal Code states: 487.02 If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person's assistance may reasonably be considered to be required to give effect to the authorization or warrant. The order has effect throughout Canada.

¶ 114   Cellebrite's role consisted of retrieving the data from the phone, so that the police could then examine the data as outlined in the information to obtain the search warrant. Without Cellebrite's involvement, data on the phone was not fully accessible to the police. Accordingly, I agree with the defence that Cellebrite's extraction of data constituted a search of the phone.

¶ 115   The police had a search warrant to search the phone, as required by R. v. Vu, 2013 SCC 60 at para. 64. However, the Supreme Court also held (at para. 54) that s. 8 of the Charter does not require that the search warrant always set out search protocols in advance, to spell out the manner of searching an electronic device. Cromwell J.A. held: 54 While I propose, in effect, to treat computers in some respects as if they were a separate place of search necessitating distinct prior authorization, I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in every case, be necessary to properly strike the balance between privacy and effective law enforcement.

¶ 116   There is no clear answer in the case law that was relied on by the parties or that I have examined on whether the police are required to obtain an additional search warrant coupled with an assistance order in order to have a third party do what the police themselves already have prior judicial authorization to do, and where the third party provides assistance willingly. The case law does however contain examples of the police obtaining assistance orders in order to have an outside company facilitate the search of a cell phone. See R. v. Salmon, 2018 ONSC 5670 at para. 8; R. v. R., 2019 ONSC 5533 at paras. 3-4 (both involving Cellebrite) and R. v. Millard, 2016 ONSC 348 (involving Apple).

¶ 117   The defence relied on R. v. Otto, 2019 ONSC 2514 at paras. 130-145, but that case was factually quite different. There, the police obtained a password for the accused's medical practice computer software from the software provider. Di Luca J. held that in order to get the password from the software provider, the police should have sought an assistance order when they obtained the original search warrant, or should have sought a production order to obtain that from the software provider. I see that as quite a different scenario. The original search warrant in that case authorized the police to access the data on the computer, and would have included reasonable efforts to crack or circumvent the password. However, the accused retained a reasonable expectation of privacy in his password, and as such obtaining the password from a third party required specific authorization.

¶ 118   I acknowledge that the fact that s. 487 only contemplates granting search authority to peace officers and other appointed or designated public officers "whose duties include the enforcement of this Act or any other Act of Parliament" does point in favour of an assistance order being required.

¶ 119   In R. v. Nurse, 2019 ONCA 260, the Court of Appeal rejected an argument that a second search warrant was required for the police to re-analyze data extracted from phones when an initial analysis had already been done. In addressing this argument, Trotter J.A. held (at para. 141): The inquiry must consider the specific circumstances in which the analysis was conducted. In this case, the second analysis was conducted in the course of an ongoing police investigation, the substance of which had not changed between the first analysis and the second analysis.

¶ 120   When I look at the specific circumstances and substance of what occurred here, I find that there was no requirement that the police obtain another search warrant that included an assistance order. As in Nurse and unlike Otto, there was no additional or further invasion of the applicant's privacy interests. Cellebrite was acting under the direction of the police, and the police had a valid search warrant not just to obtain the phone, but also to search the phone. The search warrant authorized the examination of the phone for data relevant to the listed offences and for data relevant to ownership, possession, access, use or control of the device or its data. Cellebrite's role simply made the data accessible to the police in order for them to carry out that examination. Cellebrite did off-site the type of work that police forces routinely employ civilian computer analysts to do, but in this case it was sufficiently specialized that it had to be done in house by Cellebrite. I find that Cellebrite's involvement did not infringe the applicant's reasonable expectation of privacy in the cell phone beyond what had already been judicially authorized in the search warrant.

¶ 121   Furthermore, I find that the police action in sending the phone to Cellebrite did not breach the terms of the detention order under s. 490(1) which ordered that various items seized, including the Samsung Galaxy S7 cellphone, be detained in the custody of Kingston Police. Although the phone left their immediate control, the Kingston Police always knew where it was or how to retrieve it. Counsel did not file any case law on the meaning of "custody" in s. 490(1)(b) of the Criminal Code. The section itself requires that the police take "reasonable care to ensure that it is preserved". The police fulfilled that obligation.

¶ 122   I find no s. 8 Charter breach in relation to the phone being sent to Cellebrite.

Section 24(2)

¶ 123   Section 24(2) of the Charter, states: 24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

¶ 124   I have found that the applicant's Charter rights were breached in the following ways: * Section 8. The police conscripted the applicant to assist the search by asking him for his passcode. * Section 10(b). There was an unjustified delay in informing the applicant of his right to counsel. Furthermore, the police questioned the applicant about his passcode and email accounts in violation of his right to counsel. The interaction in breach of the right to counsel also included the applicant incriminating himself by identifying the phone as his. * Section 9. The applicant was arbitrarily detained when the police failed to take him before a justice without unreasonable delay and in any event within 24 hours, as required by s. 503 of the Criminal Code.

¶ 125   I must first address the Crown's argument that not all of the Charter-infringing conduct had a sufficient connection to the evidence so as to trigger s. 24(2). I then turn to the framework set out in R. v. Grant, 2009 SCC 32, which requires that I consider three factors: (1) seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the applicant, and (3) society's interest in the adjudication of the case on its merits.

Obtained in a manner

¶ 126   In R. v. Griffith, 2021 ONCA 302, Jamal J.A. recently reviewed the law on the meaning of the "obtained in a manner" threshold under s. 24(2) of the Charter. He stated: [52] Courts have taken a "very broad reading" and "generous view" of the phrase "obtained in a manner" under s. 24(2), the threshold requirement of whether the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 77; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The jurisprudence has accepted that courts should examine the "entire 'chain of events' between the accused and the police": R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; Pileggi, at para. 101. The connection between the breach and the discovered evidence may be "causal, temporal, or contextual, or any combination of these three connections", as long as the connection is not "too tenuous or too remote": Pino, at para. 72; Pileggi, at para. 101; see also R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and Rover, at para. 35.

¶ 127   The Crown argued that the s. 9 breach is too remote from the search to figure into the s. 24(2) analysis. No evidence flowed from the arbitrary detention, and the Crown argued that the arbitrary detention was not part of the same "investigative transaction" as the evidence obtained in the search. The Crown argued that the s. 9 violation would, at most, justify a sentence reduction if sought under s. 24(1), should the applicant be convicted.

¶ 128   There is no direct connection between the s. 9 breach in failing to bring the applicant before a justice in a timely way, and the obtaining of evidence. However, there is a contextual and temporal connection between the breach of s. 9 and the breaches of ss. 8 and 10(b). They were all part of the same chain of events that showed an overall lack of attention towards the applicant's Charter rights. Furthermore, there was a direct causal connection between the s. 8 and s. 10(b) breaches relating to the passcode, and the applicant's arrest based on what was seen on the phone in the immediate aftermath of the search, which in turn led to the s. 9 breach. In addition, the police attempted during the course of the arbitrary detention to elicit further evidence from the applicant after he was held overnight at the police station.

¶ 129   I view the s. 9 breach as part of one course of conduct, such that it must be considered as part of the analysis of whether admission of the evidence derived from the search would bring the administration of justice into disrepute.

Seriousness of the Charter-infringing conduct

¶ 130   This factor requires that I situate the misconduct along a continuum, ranging from "inadvertent or minor violations of the Charter" to "wilful or reckless disregard of Charter rights". See Grant, at para. 74. As the seriousness of the state conduct that resulted in Charter violations increases, so will the negative effect on public confidence in the rule of law. As explained in Grant: 72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

¶ 131   In Noel, the Court of Appeal reviewed the importance of the right to consult counsel without delay in the context of the search of a home. The Court held: 23 The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.), at p. 191; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (Ont. C.A.), at para. 34. 24 For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at p. 1144. 25 Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination: Bartle, at p. 191; R. v. H. (T.G.), 2014 ONCA 460, 120 O.R. (3d) 581 (Ont. C.A.), at para. 4. 26 Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135(Ont. C.A.), at para. 45: The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [emphasis original]

¶ 132   The combined s. 8 and s. 10(b) violations in failing to inform the applicant promptly of his right to counsel, interacting with him in a way that caused him to incriminate himself by identifying the phone as his and then questioning him about his passcode and email addresses during the execution of the search warrant are very serious Charter breaches. The requirements of s. 10(b) are well-established and have been for a long time. See R. v. Bartle, [1994] 3 S.C.R. 173 at paras. 15-21.

¶ 133   I do not find that any officer acted in bad faith or intentionally sought to violate the applicant's right to counsel or to conscript him to assist the search, but the most favourable view of the breaches is that they resulted from carelessness. I find that the related s. 8 and s. 10(b) violations likely occurred because the lead investigator was trying to do too many things at once, and because no one was given a clear role to be the applicant's "minder" during execution of the search. Although the Queen's student's presence in the house came as a surprise, the applicant had to be the prime suspect as compared to his wife, and this seems to have been the view of the officers present at the time of the search. And yet the least amount of care was devoted to him during the search despite the fact that no less than seven investigators entered the residence after the ERU, and of those, it seems that at least three were devoted to minding the Queen's student (Det. Hough) and the applicant's wife (Det. Lund and Det. Graham).

¶ 134   The Crown argued that the time spent by Det. Frawley in later assisting a defence expert to access data derived from the phone shows good faith. Det. Frawley should of course be commended for doing that. That type of cooperation assists the criminal process by ensuring that both sides fully understand the evidence, which in turn allows the parties to make best use of trial time. However, subsequently providing assistance to a defence expert is remote from the Charter breaches that occurred during the execution of the search, and it does not diminish the seriousness of the s. 8 and s. 10(b) breaches.

¶ 135   The section 9 breach was also serious, in that it appears to have been entirely avoidable, and because on the evidence before me, the arresting officer appears to have accepted it as almost an inevitability. Det. Fisher testified that it was his job to get the paperwork done on the afternoon of December 7, but that he was confident that they would not miss bail court again on the afternoon of December 8. He stated: "You know, matters were... were what they were, the day before, that we didn't get him to bail court."

¶ 136   The focus on paperwork post-arrest had the effect of prioritizing police procedures at the expense of the applicant's rights. The focus should have been on getting the applicant to bail court along with a copy of the information. The reports, such as needed, could have followed along afterwards.

¶ 137   I agree with Nakatsuru J.'s comments in R. v. Darling, 2020 ONSC 6397: 83 Third, I do not understand why all the paperwork must be completed before the person is sent to see a justice. I ask rhetorically, is it necessary for all items seized to e processed before the accused is ready to be sent to bail court? While I agree sufficient information needs to be sent to court so that the Crown can knowledgeably conduct a bail hearing, what P.C. Reitsma contends they had to complete seems beyond what is required.

¶ 138   In R. v. Poirier, 2016 ONCA 582, Weiler J.A. held that compliance with s. 503 "is not simply a matter of form" (para. 58), and that the section "reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law" (para. 57). In addition, Weiler J.A., rejected the Crown's submission that there was no violation until the 24 hour mark, because the section requires that the person be brought before a justice "without unreasonable delay." Twenty-four hours is the "outer limit." See paras. 60-61.

¶ 139   There was no deliberate bad faith in the s. 9 breach, but the delay in bringing the applicant before a justice in breach of s. 503 of the Criminal Code could certainly be seen as the result of indifference towards the applicant's rights given the lack of proactive steps taken.

¶ 140   Taken together, I find that the police conduct here resulted in breaches that were well towards the serious end of the spectrum. The breaches involve well-settled Charter principles. See Adler, at para. 44. Furthermore, a member of the public could be forgiven for seeing an unfortunate relationship between when rules and protocol were followed and when they were not. Inspector approval was not sought in any meaningful way for dynamic entry when the police sought to seize evidence. Little to no forethought was given to fulfilling the s. 10(b) rights of the applicant during the execution of the search warrant. However, every last bit of paperwork was prepared prior to taking the applicant to bail court at the expense of compliance with s. 503 of the Criminal Code and s. 9 of the Charter.

Impact of the violations on the applicant's Charter-protected interests

¶ 141   The s. 8 and s. 10(b) Charter violations had an extremely serious impact on the applicant. He identified the Samsung Galaxy S7 as his, and gave the police the passcode, which was then used to facilitate data extraction later that morning, and that in turn led to his arrest. Once the applicant had the opportunity to consult with duty counsel, he declined to assist the police by providing the password to a laptop based on the advice he received. Furthermore, the applicant was not even told about his right to counsel for more than twenty minutes after the police broke open the door to his home and woke him up with a rifle pointed at him and his wife in bed, and while ERU officers remained in the home.

¶ 142   The s. 9 violation also had a very serious impact on the applicant because it deprived him of the ability to have his detention reviewed at the earliest possible opportunity, a value that is also at stake in s. 11(e) of the Charter. See R. v. Brown, [2007] O.J. No. 2830 at para. 9, aff'd 2009 ONCA 633.

¶ 143   I do not question Det. Fisher's decision that the circumstances justified taking the applicant to bail court rather than releasing him from the station. However, on the information that was known at the point of arrest (no criminal record, no children in the home, married, employed as a teacher, living with a spouse who was also employed, contact with counsel already initiated), it would in my view be reasonably anticipated that the applicant would be able to assemble a bail plan that would result in his release from custody. As it turned out, he was released on Crown consent.

Society's interest in adjudication on the merits

¶ 144   The evidence seized here was reliable and it is necessary to the Crown's case in a serious prosecution. This favours admission of the evidence.

Balancing the factors

¶ 145   The third factor - society's interest in adjudication on the merits - strongly favours admission of the evidence. However, the other two factors strongly favour exclusion.

¶ 146   In R. v. Omar, 2019 SCC 32, the Supreme Court adopted the dissenting reasons of Brown J.A. in the Ontario Court of Appeal (2018 ONCA 875). Brown J.A. held (at para. 121) that there is no fixed rule as to how the s. 24(2) balancing exercise should be conducted.

¶ 147   The Crown asked that I distinguish between evidence derived from the micro SD card, and the evidence derived from the internal storage on the phone itself, because the police did not need the passcode in order to access the SD card contents. I have concluded that it would be inappropriate to do so. The phone and the SD card were still together as a single unit when the s. 8 and 10(b) violations occurred. The police did not distinguish between the phone and the SD card in asking the applicant for his passcode and email addresses. Even the fact that the applicant identified the phone as his occurred in breach of s. 10(b).

¶ 148   All of this occurred during a period of time when the applicant was detained without being informed of his right to counsel, and where the circumstances of the detention would have been unnerving. The ERU officers, dressed in militaristic uniforms, and two with rifles strapped to them, were still in the home. Although I have found that the case law supports a finding that the decision to use dynamic entry was reasonable, I find that this context adds to the seriousness of the delay in informing the applicant of his right to counsel, and in questioning him. Where the state is permitted to derogate from the knock and announce rule, extra care ought to be taken in how the police interact with occupants. Here, there was a continuum of Charter-infringing conduct that started shortly after the police entered the home and continued until the applicant was released from custody the next day. I find that it tainted all of the evidence. See Adler, at paras. 50-52.

¶ 149   The Charter breaches involved clear violations of well-established rules that had a significant impact on the applicant. It is my view that in all the circumstances and considering the cumulative effect of the Charter breaches, the long-term repute of the administration of justice requires exclusion of all of the evidence.


¶ 150   The Charter application is granted. Evidence derived from the search of the applicant's home on December 7, 2017 is excluded pursuant to s. 24(2) of the Charter.

¶ 151   The case was spoken to in court on Monday, May 17, 2021 at the request of counsel. I informed counsel of the result of this ruling, and that my written reasons would be released shortly. The Crown advised that it had no other evidence to call, and accordingly the applicant was acquitted.

¶ 152   I would like to thank both Crown and defence counsel for the manner in which they conducted the application and for the quality of the materials filed.