Michael Ryder

The applicant sought a ruling to exclude evidence obtained from a motor vehicle's "Infotainment system" arguing that police searches violated sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The court found that a warrantless search and a failure to make a return to a justice constituted Charter breaches.

However, the court determined that the search warrant itself was validly issued.

Applying the R. v. Grant factors, the court concluded that the seriousness of the breaches was moderate, the impact on the applicant's privacy interests was limited, and society's interest in adjudicating the case on its merits was strong due to the reliability and importance of the evidence.

Consequently, the admission of the evidence would not bring the administration of justice into disrepute, and the application to exclude the evidence was dismissed.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code based on 55 images found in the temporary Internet files on a shared computer.

The trial judge misapprehended expert evidence regarding how images are automatically cached in temporary Internet files, incorrectly concluding the appellant had deliberately downloaded the images.

The summary conviction appeal judge similarly misapprehended the evidence and dismissed the appeal.

The Court of Appeal granted leave to appeal and set aside the conviction, finding that accessing child pornography is not a lesser included offence of possession, and that amending the information to charge accessing would prejudice the appellant.