Digital evidence

The appellant, Nicholas Johnson, appealed his conviction for second-degree murder, challenging the trial judge's refusal to qualify a proposed expert mid-trial.

The expert was intended to recover access to the appellant's Google account via his cell phone to obtain location services data.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision, noting the lack of a proper application and insufficient evidence regarding the expert's qualifications or the admissibility of the potential data.

The accused was charged with accessing, possessing, and distributing child pornography under the Criminal Code.

The trial focused on the mens rea for these offences, specifically whether the accused knowingly downloaded, possessed, or accessed the illegal files.

The court acquitted the accused on the distribution charge, finding insufficient evidence of knowledge or intent regarding file sharing via uTorrent.

However, the court found the accused guilty of possession and accessing child pornography, rejecting his testimony that his possession was unwitting and that he did not view the files.

The conviction was based on forensic evidence (e.g., a "CP" subfolder, RAM screenshots, link files) and the accused's police statement, which was interpreted as an admission of viewing child pornography to "understand the pattern" for protective reasons.

The application of the Kienapple principle for multiple convictions was deferred to sentencing.

At a preliminary inquiry into a shooting at the Pickering Ribfest on June 2, 2018, the court determined the admissibility of hearsay evidence, specifically police statements from three key witnesses who claimed memory loss at trial.

The Crown sought to introduce statements from Shamar John, Zachery Hamedi, and Vaughan Roberts under the principled exception to the hearsay rule.

The court found that the twin criteria of necessity and threshold reliability were satisfied for all three witnesses' statements.

The court also addressed the admissibility of a Snapchat video and the identification of the accused by the accused's brother.

The court committed the accused to stand trial on multiple charges related to the shooting.

The appellant appealed his conviction for possession of child pornography.

The Crown's case relied on evidence obtained when police reviewed a mirror copy of the appellant's work computer hard drive without a warrant.

The trial judge found a Charter breach under s. 8 but declined to exclude the evidence under s. 24(2).

The appellant also challenged the trial judge's conclusion that possession had been proven beyond a reasonable doubt.

The Court of Appeal upheld the conviction, finding no error in the trial judge's s. 24(2) analysis or his conclusion regarding possession based on the totality of the evidence.

The accused was charged with trafficking carfentanil following the death of a young man from an overdose.

Police obtained the deceased's phone from his father and, without a warrant, examined text messages between the deceased and the accused.

The court found that the accused had standing to challenge the seizure of his sent text messages under section 8 of the Charter, as he retained a reasonable expectation of privacy in those communications post-transmission.

The warrantless search violated section 8.

However, the court admitted the evidence under section 24(2) of the Charter, balancing the seriousness of the violation (minor, given the law at the time), the significant impact on the accused's privacy interests, and society's strong interest in adjudicating a serious drug trafficking charge in the context of a community opioid crisis.

The defendant brought a motion to exclude evidence obtained pursuant to a search warrant executed on his home and personal computer, arguing that there were no reasonable grounds for the warrant's issuance and that the search violated his Charter rights under section 8.

The defendant raised three grounds: typographical errors in the Information to Obtain, staleness of information due to a two-month delay, and insufficient corroboration of the evidence.

The court found that the errors were inadvertent and correctable, that the delay was not fatal given the nature of digital evidence and forensic retrieval capabilities, and that sufficient corroboration existed.

The motion was dismissed and the warrant was upheld as valid.

The accused was charged with two counts of breach of recognizance: failing to abide by a curfew imposed between 7:00 p.m. and 3:00 a.m., and possessing and using a computer or device with access to the internet or digital network.

The Crown called one witness, the accused's neighbour, who testified she saw the accused away from his residence during curfew hours on October 6, 2017, and identified concerning Facebook posts made from the accused's account.

The defence called three witnesses, including the accused's spouse and sister, who claimed the accused had written permission to be away during curfew and that the Facebook posts were made by the spouse and sister, not the accused.

The court found the accused guilty on both counts, rejecting the defence evidence as implausible and finding the accused had accessed his Facebook account in breach of his recognizance.

The defendant was charged with accessing, possessing, and attempting to distribute child pornography, as well as obstructing police by giving a false statement.

The charges stemmed from an investigation following an attempt to distribute child pornography via email to a recipient in the United States, execution of a search warrant at the defendant's residence, and discovery of child pornography on two cellular telephones seized from the defendant's bedroom.

The defendant claimed that a friend named Chris had used the phones without his knowledge.

The court found the defendant guilty of all four offences after determining that the defendant's testimony was not credible, that he had knowledge of and control over the child pornography, and that he deliberately misled police to obstruct the investigation.

The appellant challenged an order permitting an FBI "clean team" to examine seized computer servers and prepare a report to assist the court in determining what material should be sent to the United States under the Mutual Legal Assistance in Criminal Matters Act.

The servers were seized pursuant to a valid search warrant in connection with an investigation into alleged copyright infringement.

The court held that while the application judge had jurisdiction under section 15(2) of the Act to make such an order, the application judge erred in failing to consider the effect on the appearance of fairness and judicial impartiality of having an entity closely associated with one of the adversaries examine the material and prepare the report.

The court set aside the order and held that any entity retained to assist the judge should be independent of the interested parties, absent compelling circumstances such as unique expertise.

The accused was charged with two counts of criminal harassment under section 264 of the Criminal Code for repeatedly communicating with two women, Stephanie Guthrie and Heather Reilly, via Twitter between August 1 and November 20, 2012.

The Crown alleged that the accused's tweets caused both complainants to reasonably fear for their safety.

The accused was also charged with violating a peace bond.

The court found that while the accused engaged in repeated communication and the complainants were harassed, the Crown failed to prove beyond a reasonable doubt that the accused knew the complainants were harassed or that the complainants' fear for their safety was reasonable in all the circumstances.

All charges were dismissed.

The applicant sought directions under the Mutual Legal Assistance in Criminal Matters Act regarding servers seized in Canada pursuant to a warrant issued to assist a United States criminal investigation.

The applicant proposed that a “clean team” of United States investigators conduct a forensic examination of the servers in Canada and prepare a report to the court identifying potentially relevant evidence before any sending order.

The respondent argued that privacy interests required an independent Canadian forensic examiner instead.

The court held that the clean team proposal, subject to safeguards including supervision by Canadian authorities and prohibition on disclosure to investigators without court authorization, adequately protected privacy interests and complied with the Act and Charter principles.

The court emphasized the importance of international comity and cooperation in mutual legal assistance matters and granted the requested order.

This is a preliminary inquiry decision concerning three accused charged with unlawfully importing cocaine into Canada contrary to the Controlled Drugs and Substances Act.

The Crown sought to commit all three accused as parties to the importation offence and/or of conspiring to import cocaine.

The evidence established that a young woman was provided with a free trip to Jamaica, where she was instructed to return with a suitcase containing over 1.4 kilograms of cocaine.

The court applied the test for preliminary inquiries, examining whether there was sufficient evidence upon which a reasonable jury could return a verdict of guilty.

The decision addresses the roles of each accused in facilitating the importation scheme, the doctrine of innocent agents, and the elements of conspiracy.

The accused applied to exclude evidence obtained from extensive computer searches conducted during a child pornography investigation arising from purchases linked to the AZOV website.

The court held that although the search warrant was validly issued and police were entitled to investigate, the method of execution violated s. 8 of the Canadian Charter of Rights and Freedoms.

Police conducted a sweeping file‑by‑file search of approximately 40 terabytes of digital storage without first using targeted search parameters tied to the specific information known to them.

The court found the search overly intrusive given the narrow investigative grounds and concluded that police failed to pursue the least intrusive means available.

Applying the framework in R. v. Grant, the court excluded most of the discovered child pornography evidence under s. 24(2), admitting only evidence directly tied to the specific AZOV downloads known to investigators.

During a criminal trial involving allegations of sexual assault, the Crown sought to qualify a police detective as an expert in the operation of Facebook features and Microsoft Word functions relevant to the creation of a document allegedly copied from a Facebook News Feed.

The defence challenged the scope and usefulness of the proposed expert evidence, arguing that the detective lacked sufficient expertise regarding Facebook’s technical coding in 2009 and could not conclusively authenticate the document.

Applying the criteria for admissibility of expert evidence from R. v. Mohan, the court found the proposed testimony relevant and necessary to assist the trier of fact in understanding technical aspects of copying, pasting, hyperlinks, and auto-correct features.

The court concluded the detective possessed specialized knowledge through training and investigative experience and that any limitations in his expertise affected weight rather than admissibility.

The detective was therefore qualified to provide expert opinion within the proposed areas.

The moving party sought an order appointing a computer forensic expert to inspect the responding party’s computer systems to determine the authenticity of certain emails allegedly exchanged between employees.

The motion alleged a lack of transparency in the responding party’s investigation and requested inspection of servers and archived email systems.

The court accepted the responding party’s evidence that no trace of the emails existed in its live exchange system or archival vault and that prior internal and forensic reviews found no record of the communications.

Applying a threshold requirement that there be a real likelihood the emails once existed and were deleted, the court held the moving party’s request was based on speculation.

Given the intrusive nature of inspecting a competitor’s computer systems and the principle of proportionality in discovery, the court refused the requested order.

On a voir dire in a prosecution involving allegations of voyeurism and child pornography relating to the surreptitious filming of a minor in her bedroom, the accused challenged the admissibility of his statement and evidence obtained from a video camera and a household computer.

The defence argued that the statement was involuntary and that multiple Charter breaches occurred under ss. 7, 8, 9, 10(a), and 10(b), including alleged inducement, improper detention, and unlawful searches and seizures.

The court found the statement voluntary under the framework in R v Oickle and concluded the accused had been properly informed of his rights and given an opportunity to consult counsel.

It further held that the initial cursory examination of the camera and its seizure were justified as part of confirming the offence and as incident to arrest, that the computer was seized with valid consent from residents of the home, and that subsequent searches were authorized by valid warrants.

The court determined that no Charter breaches occurred and ruled that the evidence and statement were admissible at trial.

The Attorney General of Canada sought a sending order under s. 15 of the Mutual Legal Assistance in Criminal Matters Act to provide U.S. authorities with mirror-image copies of thirty-two seized computer servers as part of an international criminal investigation into alleged copyright infringement, conspiracy, money laundering, and racketeering.

The responding party argued the request was overly broad given the enormous volume of data on the servers and the limited evidence linking them to the alleged offences, and sought either refusal of the order or an independent forensic examination report.

The court held that although there were reasonable grounds supporting the initial warrant, privacy interests in the informational contents of computers required careful limits on the scope of disclosure.

Relying on appellate authority emphasizing that computer searches must not provide unfettered access to all stored data, the court concluded that further judicial supervision was required.

The application for a sending order was adjourned and the servers were ordered to be brought before the court so that the scope of material to be sent could be refined.

In a criminal appeal concerning workplace computer privacy, the Court held that an employee may retain a reasonable, though diminished, expectation of privacy in personal information stored on an employer-issued laptop where personal use is permitted or reasonably expected.

The police breached section 8 by conducting warrantless searches of computer data received from a school board, because the employer's authority to search for workplace purposes did not transfer to police for criminal investigation.

The majority concluded exclusion under section 24(2) was not warranted after balancing police conduct, privacy impact, and trial truth-seeking interests.

The appeal was allowed and a new trial order remained in place.

A dissent would have excluded the evidence due to serious disregard of warrant requirements.

The accused brought a motion seeking the trial judge’s recusal on the basis of alleged bias in ongoing criminal proceedings.

The court dismissed the recusal motion and delivered written reasons.

The endorsement also addressed procedural issues including a Crown motion under s. 486.3(4) of the Criminal Code to appoint counsel to cross-examine the complainant, directions regarding disclosure of electronic evidence, and scheduling of related motions.

The court provided directions to resolve technical issues with the accused’s access to digital disclosure and set timelines for further materials and assignment court scheduling.

The applicants sought to exclude text messages obtained by police through a production order directed to a telecommunications provider, arguing that the messages constituted private communications requiring a wiretap authorization under Part VI of the Criminal Code.

The court accepted that text messages attract a reasonable expectation of privacy but held that the statutory regime governing interceptions applies only to contemporaneous surveillance of communications.

The retrieval of stored text messages from a service provider after the communication had occurred did not amount to an interception.

The court found that the use of a production order under s. 487.012 of the Criminal Code was the proper legal mechanism and did not violate s. 8 of the Charter.