The Crown appealed a trial decision that excluded computer evidence obtained under a search warrant in a child pornography investigation and resulted in an acquittal.
The trial judge had found multiple breaches of s. 8 of the Charter, including reliance on unverified NCMEC CyberTipline reports, failure to include disclaimers in the Information to Obtain, uncertainty regarding PhotoDNA use, and staleness of evidence due to delay.
The Superior Court held that the trial judge applied an incorrect legal standard by requiring verification for accuracy rather than assessing whether the information provided a credibly based probability sufficient for the issuing justice to grant the warrant.
The court found that NCMEC reports and Microsoft-generated data could constitute reliable hearsay supporting reasonable and probable grounds and that the time delay and investigative uncertainties did not negate the probability that computer artifacts or account evidence would remain.
The acquittal was set aside and a new trial ordered.
