R. v. Fawthrop, 2002 CanLII 45004 (ON CA)

DATE: 20020705 DOCKET: C36382

COURT OF APPEAL FOR ONTARIO

CATZMAN, BORINS AND SIMMONS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Leo Adler, for the appellant

Respondent

• and -

LAURENCE FAWTHROP

Susan M. Chapman, for the respondent

Appellant

Heard: January 25, 2002

On appeal from convictions by Justice Nicholson McRae dated May 2, 2001 and May 11, 2001 and sentences imposed May 25, 2001.

BORINS J.A.:

Overview

1. [1] The appellant, Laurence Fawthrop, was convicted of possession of child pornography. The evidence supporting that conviction was discovered and seized in his home while police were executing a search warrant that was later determined to be partially invalid. At trial, the judge determined that although the warrant was partially invalid, the evidence was admissible under s. 489(1) of the Criminal Code, or under s. 24(2) of the Canadian Charter of Rights and Freedoms. The appellant challenges the admissibility of that evidence in this court.

2. [2] The circumstances surrounding the issuing of the impugned warrant are as follows. Two young children complained to their mother about the conduct of the appellant, who was a family friend. In particular, one of the girls, A.Y., who was 9 years old, complained that the appellant had engaged in improper sexual conduct with her and that he had taken two polaroid photographs of her naked private areas. This occurred when A.Y. had spent the night with the appellant in his home in which he lived alone. Because of the family friendship, it was not unusual for A.Y. to spend the night at the appellant’s home. For the purpose of this appeal, it is only the complaint of A.Y. that is relevant.

3. [3] The mother conveyed the children’s complaints to the police. As a result, Det. Const. Pulkki interviewed the children and their mother. Based on her interview with A.Y., she formed the belief that, even though about 10 weeks had passed since the incident with her, the appellant was still in possession of the two photographs. She also suspected that the appellant might be a pedophile and that he might be in possession of child pornography. To confirm her suspicion, she obtained an opinion from Dr. Peter Collins, a psychiatrist with expertise in pedophilia. Although Dr. Collins did not express an opinion about the appellant specifically, he advised Det. Const. Pulkki that, generally speaking, pedophiles tend to collect and retain pornographic material involving children.

4. [4] On the basis of the information that she had received from A.Y. and her family and Dr. Collins’ opinion, Det. Const. Pulkki applied for and obtained a warrant to search the appellant’s home. Marshall J. issued the warrant to search for the two photographs of A.Y. together with three additional items related to the photographs, as well as a list of other materials which a pedophile would be expected to have in his possession. In executing the warrant, the only item located and seized relative to A.Y.’s complaint was a polaroid camera. However, the police located and seized a quantity of material which, at his trial, the appellant conceded constitutes child pornography within the meaning of s. 163.1(1) of the Criminal Code.

5. [5] Although the appellant was charged with an offence arising from A.Y.’s complaint, this charge was withdrawn. However, he was charged and convicted of possession of child pornography contrary to s. 161.1(4), which conviction is the subject of this appeal. In addition, the appellant was charged with a totally unrelated offence of sexual assault arising from an incident that occurred in 1982, to which he pleaded guilty. The appellant received a conditional sentence of two years less a day, plus three years probation, for both offences. In addition, he was ordered to provide a bodily sample for the purpose of the DNA data bank pursuant to s. 487.052(1) of the Criminal Code.

6. [6] At his trial, the appellant challenged the validity of the search warrant on a number of grounds. Primarily, he contended that the seizure of the child pornography occurred as a result of a warrantless search that rendered the seizure of the material unreasonable under s. 8 of the Charter. He contended that the material should be excluded from evidence under s. 24(2) of the Charter. Although the trial judge found that the seizure of the material was unreasonable under s. 8 of the Charter, he held that it was admissible under s. 489(1) of the Criminal Code which he said is the codification of the “plain view” doctrine. In addition, the trial judge stated that if he was wrong in the application of s. 489(1), the material was nevertheless admissible on the basis of a s. 24(2) Charter analysis.

7. [7] The appellant has appealed his conviction for being in possession of child pornography on the following grounds:

(a) The absence of reasonable and probable grounds on which to issue the warrant;

(b) The warrant was facially invalid: R. v. Branton (2001), 2001 8535 (ON CA), 154 C.C.C. (3d) 139 (Ont. C.A.);

(c) The trial judge erred in admitting the evidence of child pornography under s. 489(1) of the Criminal Code;

(d) If the evidence was not admissible under s. 489(1) of the Criminal Code, the trial judge erred in failing to exclude it under s. 24(2) of the Charter.

In addition, the appellant has applied for leave to appeal from sentence and has appealed the order that he provide a DNA sample. For the reasons that follow, I would allow the appeal from conviction and from the order that the appellant provide a DNA sample. I would also grant leave to appeal from sentence and allow the appeal to extent of varying the appellant’s sentence.

The Facts

8. [8] In addition to the facts to which I have referred in my overview, I would add the following. Appended to Det. Const. Pulkki’s information in support of her application for a warrant were three documents: the list of the items to be searched for, the offence in respect of which the warrant was requested, and a copy of Dr. Collins’ opinion. It is helpful to reproduce the first two documents.

ITEMS TO BE SEARCHED FOR

1. Camera(s) and in particular a polaroid camera

2. Photograph film and negatives

3. Developed photographs relating to victim: A.Y.

4. Receipt stubs from any photographic developing store

ALSO ANY PEDOPHILE COLLECTION WHICH MAY OR MAY NOT INCLUDE THE FOLLOWING:

5. Magazines

6. Videos depicting children and/or adults

7. Books, ledgers, card files, address books and catalogues

8. Photographs and/or photographic slides including negatives

9. Audio tape recordings of children’s voices

10. Writings of the accused which include letters, notes, diaries, related to sexual encounters with children and control samples of handwriting

11. Writings of children which may include notes, letters, postcards and drawings

12. Bank books and transaction receipts pertaining to payments to children, hotels, storage depots and safety deposit boxes

13. Children’s clothing and receipts for clothing and gifts related to children

14. Computer central processing unit, monitor, keyboard, printer(s) and any diskettes, tapes or other data storage devices

THE OFFENCE

(1) THAT Laurence J. FAWTHROP sometime between the 1^st day of July in the year 1999 and the 30^th day of September in the year 1999 at the City of Toronto in the Toronto Region did have in his possession child pornography to wit two polaroid pictures contrary to the Criminal Code

9. [9] The warrant that was issued by Marshall J. incorporated both the list of items to be searched for and the offence that were attached to Det. Const. Pulkki’s information.

10. [10] In the information that Det. Const. Pulkki swore in support of the warrant, she stated her belief that the appellant still had in his possession the two polaroid photographs that he had taken of A.Y. in July, 1999, which she believed would constitute evidence of the offence of possession of child pornography. However, Det. Const. Pulkki did not state her belief that the appellant had in his possession “any pedophile collection” that would constitute evidence of the more general offence of possession of child pornography. As the two polaroid photographs of A.Y. were not located, the appellant was not charged with the offence in respect to which the warrant was issued. Rather, he was charged with the more general offence of possession of child pornography, of which he was convicted.

11. [11] Only Det. Const. Pulkki testified on the voir dire to determine the admissibility of the items seized from the appellant’s home. She described how the appellant had been arrested at his work place and taken to his home where he co-operated by unlocking the front door. There were three bedrooms on the main floor, one of which was locked. That room contained a locked desk and “a couple of safes”. The appellant, when asked to do so, unlocked the door to that room and the desk. She testified that of the first four items on the list of items to be searched for, only a polaroid camera was located.

12. [12] No doubt because none of the team of officers who conducted the search testified on the voir dire, Det. Const. Pulkki’s testimony of how and by whom the warrant was executed and how, by whom and where the seized items were located was sparse to the extreme. She described the execution of the search in the following passages from her testimony:

Q. Can you tell us about the manner in which this execution was made, how it was done, how it was organized, how much disruption it caused, that sort of thing?

A. . . . We had a Detective Wilson who was the supervisor present. He was also the computer whiz or expert, what-have-you, for dealing with. [sic] He was there for the computer aspect of it.

Then there were officers from our Youth Bureau, and everybody was assigned - - Mr. Fawthrop and I went into the dining room and had a seat and each officer was assigned a room. I don’t know exactly which room, I’d be guessing who had which room, you know, each bedroom, and they would just whenever they found something they would show it to me or they’d bring it into the dining room, and then once the living room was finished being searched, I know that was P.C. Colewell (ph), then Mr. Fawthrop and I moved into the living room.

Q. Well, let’s talk about the pornographic materials. Where were they found?

A. . . . - I believe there were three bedrooms on the main floor. It’s a bungalow. There’s three bedrooms on the main floor and one of the doors was locked to one of the bedrooms or one of the rooms.

Q. Right?

A. And Mr. Fawthrop unlocked that and there was - - I believe there were a couple safes in there and a locked desk which he unlocked, and the child pornography, I believe, was found somewhere in that locked room. I don’t know if it was in the desk, or the locked desk, or in a safe or exactly where in that room.

Q. Now, we’ve heard also about assorted photographs and polaroids of young girls, identified - - or unidentified young girls. Do you remember locating those?

A. I’d have to look up from the exhibits officer, because I physically did not do any searching myself.

Q. Okay.

A. Exactly where that was located, but I think most - - the majority of stuff was in the locked room.

13. [13] Earlier in her testimony, Det. Const. Pulkki provided this explanation of her understanding of her powers of search and seizure in executing the warrant:

Q. And at the time or after she signed the search warrant were you satisfied that you had a valid search warrant in your hands?

A. Absolutely.

Q. Okay. And at that point, your grounds for going into his house would entail or include the allegations of A., the allegations of [A.’s sister], the expert opinion of Doctor Collins, is that correct?

A. That’s correct.

Q. And that - - that was what allowed you to form your reasonable and probable grounds, is that right?

A. That’s correct.

Q. Okay. Now, just in terms of what you knew your search and seizure powers were at the time that you executed the search warrant, let’s say that you’re looking for the two polaroids and you find all this other related materials such as the pornographic materials.

A. Mm-hm.

Q. What was your understanding at the time as to whether or not you could seize those items as well?

A. My understanding was that we can seize it.

Q. Based on what?

A. Plain view. If they’re in plain view. And it’s an offence.

Q. All right. What is an offence?

A. To - - if we came across other child pornography it’s an offence to possess it. [Emphasis added.]

The trial judge’s reasons

14. [14] The issue before the trial judge was whether Det. Const. Pulkki had reasonable grounds to believe that the appellant had in his possession all of the items on the list to be searched for when she swore the information in support of her application for a warrant. The police officer had placed the “pedophile collection” on the list on the strength of Dr. Collins’ view that if the appellant were a pedophile, such people fuel their fantasies with “collateral materials” such as child pornography, and that they rarely dispose of such items. However, because he had had no contact with the appellant, Dr. Collins was unable to form an opinion whether the appellant was a pedophile.

15. [15] Although the trial judge was satisfied that the information Det. Const. Pulkki had obtained from A.Y. and members of her family, coupled with Dr. Collins’ opinion, constituted reasonable grounds to believe that the two photographs of A.Y. would be found in the appellant’s home, he was not satisfied that what he described as Dr. Collins’ “suspicion” that the appellant might possess a pedophile collection constituted reasonable grounds to believe that such a collection would be found in the appellant’s home. The trial judge therefore concluded that the warrant was valid in so far as it authorized a search for the first four items on the list, but not with respect to the remaining items which Det. Const. Pulkki had described as “any pedophile collection”.

16. [16] In coming to this conclusion, the trial judge said:

[22] In Hunter v. Southam (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 at pp. 114-115 (S.C.C.), the Supreme Court of Canada held that mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the right to be free from unreasonable search and seizure: see also R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207 (S.C.C.).

[23] Items 5 through 14, which were clearly included because of Dr. Collins’ suspicion, must be edited out of the warrant. Failure to do so would authorize a “fishing expedition” and give too much discretion to the police. This is a private home. Courts must be diligent in ensuring that the guarantees in sections 7 and 8 of the Charter are not breached.

17. [17] However, he concluded that these items were nevertheless admissible for the following reasons:

[24] Having excised items 5 through 14 from the warrant, we turn to a consideration of section 489 of the Criminal Code. Subsection 489(1) reads:

489(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, anything that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[25] Section 489 is a codification of the “plain view” doctrine. The police found the items seized pursuant to a warrant that was valid in part. The police would have found the impugned items while searching for the Polaroids of A. Therefore, the items seized should be admissible under section 489. [Emphasis added.]

18. [18] In the event that the pedophile collection was not admissible under s. 489(1), the trial judge then considered whether it should be excluded under s. 24(2) of the Charter. After stating the factors which R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 and R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607 require the court to consider, he concluded:

1. Fairness of Trial

In this case, the evidence was not conscriptive. While the defendant did cooperate and use his keys to open his home, bedroom, and desk where the items were found, the officers could have used force or a locksmith to accomplish the same result. The defendant was not compelled to incriminate himself.

2. Seriousness of the Violations

In this case, the violation was committed in good faith and was inadvertent. Detective Constable Pulkki did not flagrantly and willfully violate the defendant’s section 8 Charter right. There is no indication that she believed that the search warrant would be invalid. Detective Constable Pulkki was relying on a statement from A. indicating that two Polaroid pictures showing her privates would be found at the defendant’s home.

3. Administration of Justice in Disrepute

The decision of the Supreme Court of Canada in R. v. Sharpe (2001), 1992 2787 (ON CA), 94 D.L.R. (4th) 1 (S.C.C.) makes it quite clear that child pornography is a serious domestic and international concern. Child pornography is a serious offence and of high public importance.

[28] Considering all three factors, I find that excluding the evidence would bring the administration of justice into disrepute.

Conclusion

[29] I find that the warrant is valid with respect to items 1 through 4. Even with Dr. Collins’ letter omitted, there is sufficient evidence upon which the learned judge could determine that a search warrant should be issued. Given that the evidence seized was found while searching pursuant to a valid search warrant, section 489 of the Criminal Code applies. In the alternative, if I am wrong, I would decline to exclude the evidence pursuant to subsection 24(2) of the Charter for the reasons given above.

19. [19] The trial judge also rejected the appellant’s contention that the warrant was facially invalid by virtue of this court’s decision in R. v. Branton (2001), 2001 8535 (ON CA), 53 O.R. (3d) 737. He distinguished Branton on the basis that the warrant in that case was issued pursuant to s. 487(1)(b) of the Criminal Code, whereas the warrant in this case was issued pursuant to s. 481(1).

Analysis

20. [20] For the purpose of my analysis, I find no reason to interfere with the trial judge’s finding that reasonable grounds existed for a warrant to search the appellant’s home for the first four items and that there was only a suspicion that a pedophile collection might be found in the appellant’s home. Thus, the trial judge was correct to sever the warrant: Re Regina and Johnson & Franklin Wholesale Distributors Ltd. (1971), 1971 1177 (BC CA), 3 C.C.C. (2d) 484 (B.C.C.A.).

21. [21] In my view, whether the pedophile collection ought to have been admitted in evidence depends on whether its seizure was lawful either under s. 489 of the Criminal Code or the common law plain view doctrine, and, if not, having regard to all the circumstances, whether the admission of the evidence would bring the administration of justice into disrepute, such that it should be excluded under s. 24(2) of the Charter.

22. [22] As I have explained, it appears that the trial judge considered s. 489 to be the codification of the common law plain view doctrine. Having found that the pedophile collection was seized “pursuant” to the valid portion of the warrant, he ruled that it was admissible because “the police would have found the impugned items while searching for” the polaroid pictures. In her testimony, Det. Const. Pulkki gave the plain view doctrine as her understanding for why the pedophile collection could be seized. Although I have serious doubt that the trial judge was correct in stating that s. 489 is a codification of the common law plain view doctrine, and although the authorities may not be clear in describing the requirements of the plain view doctrine, in the view that I hold of this appeal I find it unnecessary to resolve these questions. This is because the evidence before the trial judge was insufficient to render lawful the seizure of the pedophile collection either under s. 489 of the Criminal Code or the plain view doctrine.

23. [23] Before s. 489(1) can operate to permit the person who executes a warrant to seize things not mentioned in the warrant, that person must believe on reasonable grounds that the things to be seized fall within any of the conditions contained in s. 489(1)(a),(b) and (c). The record contains no testimony from the person, or persons, who seized the items of child pornography. As I have indicated, the evidence of how and by whom the warrant was executed and how, by whom and where the seized items were located, is sparse. The only testimony with respect to the seizure came from Det. Const. Pulkki who did not participate in the search. Although she could not say for certain, her belief was that the items were found somewhere in the locked room, perhaps in the locked desk or in a safe in the room. In the absence of a proper evidentiary foundation, it would be mere speculation to conclude that the person, or persons, who located the items seized them because they were found in the execution of the valid portion of the warrant and because that person had reasonable grounds to believe that the items constituted evidence that had been obtained by or used in the commission of a criminal offence, or that the items would afford evidence of a criminal offence.

24. [24] It is helpful to refer to the legislative history of s. 489, which was not in the original Criminal Code of 1892. It was first introduced in the extensive revision of the Code in 1955 as s. 431. Prior to the repeal and re-enactment of s. 489 in 1997, the provision read:

Every person who executes a warrant issued under section 462.32, 487, or 487.1 may seize, in addition to the things mentioned in the warrant, anything that the person believes on reasonable grounds has been obtained or has been used in the commission of an offence.

As pointed out by Salhany J. in R. v. Safety Kleen Canada (1991), 7 C.R.R. (2d) 299 at 303 (Ont. Gen. Div.), in its original form s. 489 was designed to cover cases in which the police executing a search warrant find items that are the proceeds of other offences or have been used in the commission of other offences.

25. [25] Section 489, in its present form, is an expansion of the original provision. I have already set out s. 489(1). Section 489(1) authorizes the seizure of items not specified in a warrant. As the subsection reads, where a person executing a warrant believes on reasonable grounds that a thing, not mentioned in the warrant, has been obtained by, or has been used in the commission of an offence, the person may seize that thing.

26. [26] Section 489(2) allows the seizure of such items where a peace officer is lawfully present pursuant to a warrant or otherwise in the execution of duties. Section 489(2) reads as follows:

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

27. [27] Little attention has been accorded to s. 489 or its predecessors in the case law. The trial judge stated that he considered s. 489 to be the codification of the plain view doctrine. However, as I have said, it is not necessary for the purpose of this appeal to determine whether the trial judge was correct. Nevertheless, in my opinion it is clear that because neither subsection (1), nor subsection (2), authorizes a warrantless search, the power of seizure which they authorize necessarily is confined to what police officers locate in the execution of a valid search warrant under subsection (1) or where an officer is lawfully present in a place under subsection (2). Therefore, read as a whole, s. 489 authorizes police officers to lawfully seize items which they locate in the circumstances provided for in subsections (1) and (2).

28. [28] Turning to the common law plain view doctrine, in R. v. Spindloe (2001), 2001 SKCA 58, 154 C.C.C. (3d) 8 at 29-37 (Sask. C.A.), Jackson J.A., in thorough and careful reasons in which she reviewed the American and Canadian authorities, analyzed the plain view doctrine. She began at p. 29 with the following definition of “plain view”:

Fontana in The Law of Search and Seizure in Canada (3rd ed.), defines “plain view” (at p. 602) in this way:

“Plain view” occurs when evidence falls into the view of an officer who has a right to be in the position he is in to have the view he has had; such items have been held to be subject to seizure.

29. [29] At p. 33, Jackson J.A. adopted the requirements necessary to justify a plain view seizure stated by the Supreme Court of the United States in Texas v. Brown, 460 U.S. 730 (1983), although not without some modification. She stated at pp. 33-34:

Returning again to [R. v. Belliveau and Losier (1986), 60 C.R. (3d) 361 (N.B.C.A.)], the New Brunswick Court of Appeal relying on Texas v. Brown, suggested that a plain view seizure to be reasonable must satisfy these requirements: (i) the police must have gained entry or be in the premises lawfully; (ii) the nature of the evidence must be "immediately apparent" as constituting a criminal offence; and (iii) the evidence must have been discovered inadvertently. The question to be answered here is whether these requirements are the ones to be applied, and, if so, are they to be applied rigidly.

There can be no question but that plain view seizures must meet certain criteria. As the American authorities referred to in Texas v. Brown and the Annotation to it indicate (see p. 1018 and the following pages in 75 L. Ed. 2d), almost all evidence is in plain view the moment it is seized. There are also dangers associated with a police power derived from the loose application of the plain view doctrine as it can be used as a pretext to avoid obtaining a warrant. Hence, the requirements referred to in Texas v. Brown arise.

The difficulty with the requirements stated in Belliveau is that they purport to prescribe rules with respect to a power which involves the exercise of discretion both on the part of the police and the Court reviewing the manner in which the evidence was obtained. It would appear from this that the requirements are applied in the American decisions with a certain ambivalence. For example, Texas v. Brown is not a majority decision. Only three other members of the Court subscribed to the views expressed by Rehnquist J. and, of those three, White J. wrote a concurring opinion questioning the need for a requirement of inadvertence. As the Annotation to Texas v. Brown indicates (at p. 1026), Texas v. Brown casts doubt on the requirement of inadvertent discovery by footnoting several lower court decisions that refused to accept this aspect of the decision. The Court in Texas v. Brown also points out that plain view is perhaps best understood as an extension of the prior justification for the police officer's access.

This accords with the view expressed by this Court in R. v. Neilsen, supra. Bayda C.J., writing for the Court, agreed with the observations of Borins D.C.J., as he then was, in R. v. Askov (1987), 1987 9462 (ON SC), 60 C.R. (3d) 261 (Ont. Dist. Ct.). Borins D.C.J. found that "[w]hat is central to the application of the 'plain view' doctrine is that the police officer had a prior justification for the intrusion into the place where the 'plain view' seizure occurred" (see p. 271). He went on to say "the foundation for a lawful seizure on the basis of the 'plain view' doctrine is lawful presence in the premises where the property is found in 'plain view'''. As a requirement for the plain view doctrine, the inadvertence requirement becomes less important when the police have a right of access to the premises in the first place.

30. [30] At pp. 36-37 Jackson J.A. concluded her analysis with the following observation which, in my view, has particular relevance to the circumstances of this appeal:

. . . While a warranted seizure may permit the seizure of items beyond the purview of the terms of the warrant, a plain view seizure, as a minimum requirement, is limited to those items which are visible; see R. v. Nielsen and R. v. Askov.

Both R. v. Nielsen and R. v. Askov cite the leading American authority on the question of the limits of the plain view doctrine with respect to an expanded search power: Coolidge v. N.H., 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). They quote from Stewart J. writing in Coolidge at 466:

[11] ... the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

The plain view doctrine confers a seizure power not a search power. It does not permit an exploratory search to find other evidence. [Emphasis added.]

31. [31] In its recent decision in R. v. Law (2002), 2002 SCC 10, 208 D.L.R. (4th) 207 (S.C.C.), the Supreme Court of Canada had occasion to consider the application of the plain view doctrine in the circumstances of that case. A locked safe belonging to the accused was reported stolen and was later recovered by police, open, in a field. Corporal Desroches, who was not involved in the investigation of the theft but who suspected the accused of tax violations, photocopied documents that he found in the safe, which resulted in proceedings against the accused under the Excise Tax Act, R.S.C. 1985, c. E-15. The accused contended that as the search of his safe violated s. 8 of the Charter, the evidence should be excluded under s. 24(2). The Crown contended that the seizure of the documents was justified by the plain view doctrine. Bastarache J. rejected this contention, stating at pp. 220-221:

The respondent attempts to rely on the plain view doctrine, arguing that evidence that comes within the view of a "lawfully positioned" officer may be admissible if it is discovered inadvertently. Many of the authorities cited by the respondent may be characterized as plain view searches: see United States v. Sumlin, 909 F.2d 1218 (8th Cir. 1990); Coolidge v. New Hampshire, 403 U.S. 443 (1971); United States v. O'Bryant, 775 F.2d 1528 (11th Cir. 1985). In this case, I agree with McKee Prov. Ct. J. that the incriminating evidence was neither immediately obvious to Corporal Desroches nor discovered inadvertently. On the contrary, it came to light only after he examined, translated and photocopied several documents. Corporal Desroches admitted there was nothing facially wrong with the documents. He testified they contained a series of numbers and Chinese characters, and that he lacked both accounting expertise and proficiency in Chinese. Not having detected anything incriminating through the unaided use of his senses, Corporal Desroches cannot rely on the plain view doctrine either to establish reasonable and probable grounds to search, or to avoid the requirement of reasonable and probable grounds entirely; see W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), at pp. 395-98. [Emphasis added.]

32. [32] Whatever may be the precise definition of the plain view doctrine, as in Law, for the pedophile collection to be subject to lawful seizure on the basis of that doctrine it must have been immediately obvious to, and discovered inadvertently by, the officers executing the lawful portion of the search warrant. As I have explained, there was no evidence before the trial judge that supported either of these findings. If the trial judge was applying the plain view doctrine in finding that the seizure was lawful because the “police would have found the impugned items while searching” for the photographs of A.Y., this conclusion is incorrect. As the authorities indicate, the test in applying the plain view doctrine to justify a seizure of evidence is not whether the police would have found the items in plain view while searching for the photographs as the trial judge believed, but whether they did find the items in plain view while executing a valid warrant or while lawfully present in the appellant’s residence.

33. [33] Moreover, Det. Const. Pulkki was unable to provide any evidence that would support the conclusion that the police discovered the pedophile collection while searching for the photographs of A.Y. In fact, she was unable to provide any evidence of the location of any of the items on the list of items seized¹ or of the circumstances that led to the discovery and seizure of any of those items. As the evidence of the execution of the warrant was sparse, it is not possible to determine whether the officers were engaged in the execution of the valid or the invalid portion of the warrant when the items were located.

34. [34] There may be cases in which items that are listed on the severed portion of an valid search warrant will be admissible under the plain view doctrine or pursuant to s. 489. However, their admissibility will depend on the strength of the evidence of the conduct of the search. Again, as Jackson J.A. stated in Spindloe at p. 37:

The plain view doctrine confers a seizure power not a search power. It does not permit an exploratory search to find other evidence.

And as Bastarache J. observed in Law at p. 221, the search warrant process is meant to prevent a search based only on suspicion that a crime may have been committed.

35. [35] Therefore, neither under s. 489 of the Criminal Code nor the common law plain view doctrine can it be said that the seizure of the pedophile collection was lawful. The evidence before the trial judge provided an insufficient foundation to enable the court to make the findings of fact necessary to justify the seizure under either basis that would make it lawful.

36. [36] On the authority of Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145 and R. v. Collins, supra, in the absence of prior judicial authorization, a search or seizure will be reasonable if it is otherwise authorized by law, and both the law itself and the manner in which the search was carried out are reasonable. In my view, as none of the recognized exceptions to the warrant requirement are satisfied in this appeal, I conclude that the search and the seizure were unreasonable.

Section 24(2) analysis

37. [37] As the search was unreasonable under s. 8 of the Charter, I must now decide whether the items that were seized, which constituted the entirety of the evidence upon which the appellant’s conviction was based, should have been excluded under s. 24(2) of the Charter. Although it was unnecessary for the trial judge to do so, he conducted a s. 24(2) analysis and concluded that it would bring the administration of justice into disrepute if the items seized were to be excluded from evidence. Because the trial judge was not required to conduct a s. 24(2) analysis, I do not believe that the trial judge’s decision to admit the evidence is to be accorded the deference generally given to a trial judge’s s. 24(2) analysis. See: R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 at para. 84. In the circumstances, I feel it is necessary to conduct a separate s. 24(2) inquiry.

38. [38] In Collins, the Supreme Court of Canada grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the conduct of the police, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors.

Trial fairness

39. [39] In Law, supra, at pp. 222-223, Bastarache J. provided this helpful description of the first branch of the Collins test:

The concept of trial fairness is ultimately concerned with the continued effects of unfair self-incrimination on the accused; thus, the principal (though not exclusive) considerations at this stage will be the nature of the evidence obtained and the nature of the right violated: Collins, supra, at p. 284. The leading case on this issue is Stillman, supra, which held that the admission of "conscriptive" evidence, whether self-emanating or derivative, would generally affect the fairness of the trial. Evidence will be classified as conscriptive where "an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples": Stillman, supra, per Cory J., at para. 80.

40. [40] In this case, the items of child pornography located by the police officers in the appellant’s home were not conscriptive evidence. They neither emanated directly from the appellant, nor derived from his compelled cooperation with the state. While they would not have been discovered without the Charter violation, they existed independently of that violation although they were located with the appellant’s cooperation. Thus, the trial fairness branch of Collins will not operate to exclude the evidence.

Seriousness of the breach

41. [41] In applying this branch of Collins, the conduct of Det. Const. Pulkki in obtaining the warrant and that of the police officers in conducting the unauthorized search, as opposed to the fairness of the subsequent trial, informs the analysis. As Bastarache J. stated at pp. 223-224 of Law:

At this stage of Collins, supra, the conduct of Corporal Desroches in conducting an unauthorized search, as opposed to the fairness of the subsequent trial, informs the analysis. The seriousness of this conduct depends, first, on “whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant”: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 652. Also relevant is whether the police officer could have obtained the evidence by other means, thus rendering his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285.

42. [42] In my view, the trial judge’s finding, based on the testimony of Det. Const. Pulkki, that the police were engaged in a “fishing expedition” for items of child pornography leads to the conclusion that the breach of the appellant’s s. 8 Charter rights was serious. It appears from the record that after she interviewed A.Y. and members of her family, Det. Const. Pulkki suspected that the appellant was a pedophile, which led her to further suspect that he might possess items of child pornography. To be fair to her, she realized that her suspicion was insufficient to enable her to obtain a warrant. She was aware that it was necessary that she have reasonable grounds to believe that child pornography would be located in the appellant’s home. She sought the opinion of Dr. Collins in the hope that it would tip the scales from suspicion to reasonable grounds. As the trial judge recognized, the opinion of Dr. Collins failed to do so. He recognized the fatal flaw in the opinion. Although Dr. Collins opined that it was not uncommon for pedophiles to collect items of child pornography, he was unable to form an opinion as to whether the appellant was a pedophile. Without that link, Det. Const. Pulkki was in the same position as she had been before she contacted Dr. Collins. All she had was a suspicion that the appellant might be in possession of child pornography. Indeed, in the information that she swore in support of her application for a warrant, although she swore to her belief that the two polaroid photographs of A.Y. would be found in the appellant’s home, she did not swear to a belief that what she described as “any pedophile collection” would also be found there. Nor did she state in the information that the warrant was being sought to charge the appellant with the general offence of possession of child pornography. This resulted in an unauthorized search for those items by means of what the trial judge correctly labelled a “fishing expedition”. This is what the search warrant process is meant to prevent.

43. [43] Det. Const. Pulkki was driven by the law enforcement objective of locating evidence to substantiate A.Y.’s complaint that the appellant had taken two indecent photographs of her. However, as the trial judge found in invalidating the portion of the warrant that authorized a search for “any pedophile collection”, to the extent that the police officer was driven by another law enforcement objective (to locate items of child pornography) she lacked reasonable grounds to believe that such items were in the appellant’s possession. Indeed, Det. Const. Pulkki acknowledged in her testimony that her state of mind was no more than suspicion. There can be no doubt that Det. Const. Pulkki was justified in her suspicion on the basis of what she had been told by A.Y. However, the reliance that she placed on Dr. Collins’ opinion was problematic given that his opinion was really no more than a discourse on pedophiles and their characteristics and said nothing about the appellant, whom Dr. Collins had not met, nor interviewed. The better procedure for Det. Const. Pulkki to have followed would have been to limit her application to request a warrant to search for the photographs of A.Y. If, in executing that search, she obtained information that elevated her suspicion to reasonable grounds to believe that the appellant possessed a pedophile collection, she could have applied for a warrant to search for that material. There was no evidence that there were exigent circumstances requiring its immediate seizure. Instead, she sought to engage in an impermissible exploratory search for the evidence.

44. [44] I am unable to sustain the trial judge’s finding that the violation of the appellant’s s. 8 rights was committed in good faith and was inadvertent. In arriving at this conclusion, and subsequently admitting the evidence, the trial judge, in a sense, contradicted his earlier finding of how Det. Const. Pulkki went about procuring the search warrant. He found that Det. Const. Pulkki’s suspicion that the appellant had a pedophile collection did not constitute reasonable grounds to apply for, and for Marshall J. to grant, a warrant. He also found that the warrant authorized the police officers to conduct a fishing expedition for these items. In my view, the trial judge’s finding that from the outset the police were engaged in an fishing expedition is incompatible with his finding that they were acting in good faith. See R. v. Harris & Lighthouse Video Centres Limited (1987), 1987 181 (ON CA), 35 C.C.C. (3d) 1 at 28 (Ont. C.A.), leave to appeal to S.C.C. refused 38 C.C.C. (3d) vi; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613 at 652. Moreover, the evidence relied on by the trial judge in support of his finding that from the time Det. Const. Pulkki applied for the warrant her focus was on engaging in a fishing expedition for evidence of child pornography contradicts his finding that she “did not flagrantly and wilfully violate” the appellant’s s. 8 Charter rights.

45. [45] I conclude that the breach of the appellant’s s. 8 rights was serious.

Effect on the administration of justice

46. [46] The third branch of Collins focuses the inquiry on whether excluding the evidence would have a detrimental effect on the administration of justice. Generally, this turns on whether the impugned evidence forms a crucial part of the Crown’s case, and where trial fairness is not affected, the seriousness of the underlying charge. As I have said, the Crown’s case is entirely dependent on the impugned evidence. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 the Supreme Court of Canada emphasized that possession of child pornography is a serious crime. However, the degree of seriousness of the underlying charge will often depend on the quantity and nature of the material in the possession of the accused. As I will explain, it appears that the quantity of the material entered into evidence at the appellant’s trial was significantly less than described in the list of items seized set out in the footnote to paragraph [33]. Nevertheless, the exclusion of the material will undermine the administration of justice as it will result in the appellant’s acquittal.

47. [47] None of the impugned evidence was before the court on the argument of the appeal. Consequently, at the conclusion of argument the court asked the Crown to provide it with the items seized in the appellant’s home that were introduced as evidence at his trial. We are now in receipt of that evidence. The evidence consists of a blue file folder containing, for the most part, order forms and catalogues for nudist publications. In addition to these documents, the file contains the following computer generated documents: two short stories and 35 images of naked young girls, including twelve in which a girl is engaging in fellatio. It also contains correspondence with vendors of child pornography, a list of websites, a nudist publication and three unremarkable photographs. Although the appellant admitted that the materials are child pornography, I would have difficulty finding that the order forms and catalogues for nudist publications and the other documents constitute child pornography. There is, however, no doubt that the short stories and the 35 images are child pornography. I would characterize the quantity of child pornography seized from the appellant’s home as small and, for the most part, as relatively mild.

48. [48] I would note that the list of items seized from the appellant’s home is considerably larger than the evidence that was introduced at his trial. However, in determining the seriousness of the offence of which the appellant was convicted I am governed by the evidence before the trial judge. Although there is no doubt that possession of child pornography is a serious crime and that among the items seized were twelve photographs of young girls engaging in fellatio, for the above reasons I am satisfied that the offence allegedly committed by the appellant was relatively minor.

49. [49] While admitting the evidence will not affect the fairness of the trial, excluding the evidence will compromise the Crown’s case. The resolution of s. 24(2) therefore turns on whether the violation of s. 8 is so serious that it outweighs the interest of the State in admitting the evidence. I have already expressed the opinion that in all of the circumstances of this case the violation of s. 8 is serious and that the offence of which the appellant was convicted was relatively minor. As I have said, the search was based on suspicion and amounted to a fishing expedition. As Bastarache J. observed at p. 221 of Law: “Such conduct is precisely what the search warrant process is meant to prevent”. Consequently, in balancing the interests I am of the view that the administration of justice “would suffer greater disrepute from the admission of this evidence than from its exclusion”: R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3 at 35, per Sopinka J. It follows that the trial judge erred in admitting the evidence.

50. [50] In my view, in the circumstances of this case, to fail to exclude the impugned evidence would be to sanction the results of a fishing expedition engaged in by the police based on their suspicion that the appellant possessed what Det. Const. Pulkki described as a “pedophile collection”. To rule that the evidence is admissible would seriously diminish the appellant’s s. 8 Charter rights by giving approval to the practice of obtaining a warrant to search for items which the police have reasonable grounds to believe may be found in an individual’s home, and using the warrant as a means to engage in a fishing expedition for a shopping list of items which the police only suspect may also be located in the home. Stated somewhat differently, a failure to exclude the pedophile collection would enable the Crown to introduce evidence through the back door that it was unable to introduce through the front door.

51. [51] As there is no admissible evidence upon which the appellant could be convicted, I would, therefore, allow the appeal, set aside the appellant’s conviction and order that he be acquitted.

52. [52] As I have concluded that the trial judge erred in admitting the evidence seized in the appellant’s house, it is unnecessary to consider the appellant’s submission that the decision of this court in R. v. Branton, supra, renders the warrant facially invalid.

DNA Sample

53. [53] Following the appellant’s conviction for possession of child pornography and for the commission of the unrelated offence of sexual assault arising from an incident in 1982, pursuant to s. 487.052(1) of the Criminal Code the trial judge ordered him to provide a bodily sample for the purpose of the DNA data bank. The order was made, of course, on the basis of both convictions. The appellant appeals from the imposition of this order.

54. [54] In imposing the order, the trial judge stated:

Mr. Fawthrop is a paedophile and has been for many years. The offence to which he has pleaded guilty, sexual assault on a female child occurred in 1982. At the time of his arrest he was found in possession of a very large quantity of child pornography. It is obvious he has been and remains a person who is a threat to female children. His primary rights are outweighed by the need to protect possible future victims. There will be an order pursuant to Section 487 that you supply a sample or a number of samples as required of bodily substances for the purpose of the DNA Identification Act.

55. [55] In making the order, the trial judge was influenced by his view that the appellant was a pedophile, that he had been one for many years and that he is, and has been, a threat to female children. He appears to have based this view on both the offence the appellant had committed on a child in 1982 and on the “very large quantity of child pornography” found in his possession. I have already commented on the quantity and quality of the child pornography. In my view, the evidence before the trial judge, particularly the absence of any expert opinion, does not support the trial judge’s findings.

56. [56] Because I have ordered that the appellant be acquitted of the offence of possession of child pornography, it is necessary to decide whether a DNA order should be made on the basis of the 1982 conviction only. In two recent cases this court has analyzed the complicated provisions of the Criminal Code that empower a trial judge to order a person convicted of a designated offence to provide a bodily sample for the purpose of the DNA data bank: R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417 (C.A.), leave to appeal to the S.C.C. refused April 4, 2002; R. v. Hendry (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475 (C.A.). On the authority of these cases, an appellate court may make an order under s. 487.052(1) in circumstances where a trial judge has declined to do so, or may substitute an order for one made by a trial judge.

57. [57] The appellant was convicted of indecently assaulting a 9 year old girl between May 1, 1981 and September 30, 1982. Because of the date on which the offence was committed, s. 487.052(1) is engaged. The issue is whether this offence is a “designated offence” within the meaning of that subsection, thereby giving the court discretion to make a DNA order upon a person’s conviction for indecent assault. Under s. 487.052(1) there are two categories of designated offences, primary and secondary designated offences. The offence of indecent assault is not found in either category. The reason, no doubt, is that major amendments to the Criminal Code that came into force on January 4, 1983, removed the offence of indecent assault: S.C. 1980-81-82-83, c. 125. Thus, the offence of indecent assault ceased to exist on January 4, 1983. While there are provisions in the definition of both categories of designated offences that have the effect of incorporating some offences as they read before January 4, 1983, none exists in respect to an indecent assault committed before that date. It follows that a DNA order cannot be made in respect to the single offence of which the appellant now stands convicted as it is not a designated offence for the purpose of s. 487.052(1).

58. [58] I would, therefore, set aside the DNA order.

Sentence

59. [59] The appellant received a conditional sentence of two years less a day, followed by three years probation, for both offences. The trial judge gave no reasons for imposing this sentence. However, based on his reasons for imposing the DNA order it appears that he placed substantial weight in sentencing the appellant on his characterization of him as a pedophile who is a threat to female children, a finding that was unsupported by the evidence. It is, therefore, reasonable to conclude that in sentencing the appellant on both offences, the trial judge placed substantial weight on the conviction for possession of child pornography and less weight on the conviction for indecent assault.

60. [60] As the appellant has been acquitted of possession of child pornography, there is no doubt, in respect to the 1982 offence of indecent assault, that the sentence imposed by the trial judge is no longer fit. As the appellant pleaded guilty to indecent assault, very little is known about the circumstances of the offence other than that he touched the victim’s vagina while they were in the swimming pool. In my view, an appropriate sentence would be the sentence already served by the appellant.

Result

61. [61] I would, therefore, allow the appellant’s appeal from his conviction for possession of child pornography, set aside the conviction and order that he be acquitted. I would allow his appeal from the imposition of the DNA order and order that it be set aside. The appellant is granted leave to appeal sentence. I would order that the sentence be varied to the sentence that he has served.

“S. Borins J.A.”

“I agree: M. A. Catzman J.A.”

SIMMONS J.A. (dissenting):

62. [62] I have had the benefit of reading the reasons of my colleague, Borins J.A. I respectfully disagree with two aspects of his reasons concerning the conviction appeal.

63. [63] First, although I agree with my colleague’s conclusion that the trial record does not support the application of either s. 489 of the Criminal Code or the plain view doctrine to justify admitting the seized items that were filed as exhibits, in my view, the record creates an obvious inference that the police were searching for items listed in both the valid and the invalid portions of the warrant when they discovered the exhibits that were filed at trial. This finding affects the s. 24(2) Charter analysis.

64. [64] Second, I disagree with my colleague’s conclusion that the seized items ought to have been excluded under s. 24(2) of Charter.

65. [65] Because of these conclusions, it is necessary that I address the appellant’s ground of appeal relating to the facial validity of the warrant. I would not give effect to that ground of appeal.

66. [66] Finally, I would not interfere with the sentence imposed by the trial judge.

The Evidentiary Record and the Interpretation of s. 489 of the Criminal Code

67. [67] My colleague notes in paragraph 33 of his reasons that, because of the sparse evidentiary record concerning the search, it is not possible to determine whether the officers were executing the valid or the invalid portion of the warrant when they located the seized items that were filed as exhibits. However, as I read the record, there was no live issue at trial concerning the location of the seized items that were filed as exhibits². Rather, counsel dealt with the case on the basis that those items were found either in locked drawers of a desk or in one of two locked safes, and focused their submissions concerning s. 489 of the Criminal Code on whether items that were not openly visible could properly be seized under that section.

68. [68] In my view, there was an obvious inference that the police were executing the valid and invalid portions of the warrant when they searched the safes and the desk. Both the valid and invalid portions of the search warrant list photographs and documents of a generically similar nature amongst the items to be located. Although my colleague’s concern is a proper reflection of the technical requirements of s. 489, I consider it speculative, in the particular circumstances of this case, to suppose that the police were not searching for documents and photographs listed in both portions of the warrant when they located the seized items that were filed as exhibits.

69. [69] However, given that the officer who seized the items filed as exhibits did not testify, I agree with my colleague’s conclusion that the trial record does not support the application of s. 489 of the Criminal Code.

70. [70] As noted by my colleague, s. 489 permits seizure of items not listed in a warrant, however it does not authorize exploratory searches: R. v. Taylor, [1994] O.J. No. 1304 (O.C.J.G.D.) Further, it requires, as a precondition to seizure, that an officer believe on reasonable grounds that a particular item was obtained by the commission of an offence, that it was used in the commission of an offence, or that it will afford evidence of an offence.

71. [71] Here, the invalid portion of the warrant permitted seizure of a wide variety of items forming part of “a pedophile collection”, some of which would not, of themselves, constitute evidence of the commission of an offence. The seized items filed as exhibits include catalogues, order forms, and non-pornographic photographs. Absent the seizing officer’s testimony concerning the state of the exhibits when they were found, it is not clear whether the officer actually looked at particular items and formed one of the requisite beliefs, or simply seized a generic bundle of material covered by the severed portion of the warrant. Although defence counsel conceded that the exhibits constitute child pornography, it is apparent from reviewing them that his admission was of a global nature. I accordingly agree with my colleague’s conclusion that, absent testimony from the seizing officer, the trial record does not support the application of s. 489 of the Criminal Code to justify admitting the seized items that were filed as exhibits.

The s. 24(2) Charter Analysis

72. [72] I agree with my colleague’s conclusion that the trial judge was correct to sever the search warrant. For the purposes of the s. 24(2) Charter analysis, I find that seizure of the items listed in the severed portion of the warrant was not otherwise authorized by law, that it was therefore unreasonable, and that it constituted a breach of the appellant’s s. 8 Charter rights. I will deal with each of the Collins³ factors in turn.

73. [73] I agree that the seized items are non conscriptive, and that the seizure does not impact adversely on the fairness of the trial.

74. [74] I also agree that the breach is prima facie serious, primarily because it involves a search of a dwelling house. However, I find that the seriousness of the breach is attenuated by two factors.

75. [75] First, the police were in the dwelling house lawfully and were lawfully entitled to enter the locked bedroom, and to examine the contents of the locked desk and the locked safe, pursuant to the valid portion of the warrant. Significantly, the police were also entitled to examine, on an item-by-item basis, the bundle of material that they ultimately seized as part of their search for the two photographs itemized in the valid portion of the warrant. If the police had actually looked through the bundle of seized material they would have found the pornographic pictures and would undoubtedly have formed one of the requisite beliefs under s. 489. While this does not justify the seizure under s. 489, in my view, it moderates the seriousness of the Charter breach involved in the seizure.

76. [76] Second, I see no basis for rejecting the trial judge’s findings of fact concerning the good faith of the officer. The trial judge found that the breach “was committed in good faith,” that it was “inadvertent”, that the police officer “did not flagrantly and willfully violate the [appellant’s] section 8 Charter right”, and that “[t]here is no indication that she believed the search warrant to be invalid”.

77. [77] I do not read the trial judge’s characterization of the effect of upholding the severed portion of the search warrant as sanctioning a “fishing expedition”, as being inconsistent with his finding concerning the good faith of the police officer. In my view, the trial judge’s comments about a “fishing expedition” addressed the question of whether there were reasonable and probable grounds, from an objective perspective, for believing that the appellant had a pedophile collection at his home. They did not address the trial judge’s finding concerning the subjective belief of the police officer.

78. [78] Moreover, as I read his reasons, the trial judge did not attribute improper motives to the police officer. It is clear that while the police officer considered that the information that she had along with her suspicion about the appellant being a pedophile was insufficient to justify the issuance of a warrant, she attempted to comply with the law both by obtaining an expert opinion and by seeking judicial authorization for the search. The trial judge found that “there [was] no indication that she believed that the search warrant would be invalid”. His finding was available on the evidence and supports his conclusion that the violation was inadvertent and committed in good faith.

79. [79] I conclude that the seriousness of the breach is reduced by both of these factors.

80. [80] On the question of whether the exclusion of the evidence would bring the administration of justice into disrepute, I disagree with my colleague’s characterization of the offence as relatively minor. Amongst the material found in the appellant’s possession are several photographs of nude or semi-nude children taken in splayed positions designed to highlight their genitalia, as well as several photographs of a child performing fellatio on an adult, and one photograph depicting cunninglingus. Taking photographs such as these constitutes serious child abuse. To the extent that persons who possess child pornography promote the demand for such photographs, they contribute to a significant social evil. The quantity of pornographic material involved and the absence of evidence that the appellant was distributing child pornography undoubtedly places this offence at the moderate end of the spectrum of child pornography offences. Nevertheless, in my view, possession of the material described is a serious offence. On balance, I would hold the evidence admissible.

The Appellant’s Submission that the Search Warrant is Facially Invalid

81. [81] The appellant submitted that the search warrant is facially invalid based on this court’s decision in R. v. Branton, 2001 8535 (ON CA), [2001] O.J. No. 1445. In Branton this court found that the search warrant was facially invalid because it was issued pursuant to s. 487(1)(b) of the Criminal Code, which authorizes the issuance of a warrant for evidence of the “suspected or intended commission” of an offence, whereas the warrant authorized the search and seizure of “things … that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence”.

82. [82] Here, the warrant is framed in the same terms as the warrant in Branton, however there is no indication that it was issued pursuant to only one subsection of s. 487. I find no merit in this ground of appeal.

The Sentence Appeal

83. [83] The appellant was sentenced to a conditional sentence of two years less a day and probation for three years in relation to convictions for possession of child pornography and indecent assault. The indecent assault occurred between May 1, 1981 and September 30, 1982. The appellant was also ordered to provide a bodily sample for the purpose of the D.N.A. data bank.

84. [84] The appellant submits that the trial judge made comments during the course of the sentence hearing that indicate that he had made up his mind on the sentence to be imposed before hearing from the appellant’s counsel at trial. He also submits that the trial judge failed to give sufficient weight to the mitigating factors present, including the effect of the trial proceedings on the appellant; that there was no evidence to support the trial judge’s conclusion that he is a pedophile; and that the sentence imposed is harsh and excessive. Finally, the appellant says that the offences for which he was convicted are secondary offences that do not require the mandatory imposition of a D.N.A. order; he submits that the trial judge erred in determining that it is in the best interests of the administration of justice that he provide a D.N.A. sample.

85. [85] I reject the appellant’s submissions. It is clear from his comments that the trial judge approached the sentencing prepared to impose a custodial sentence. He revised that position in response to submissions from counsel. Although the trial judge then expressed a view that a maximum term conditional sentence was appropriate, he invited counsel to see whether they could agree on the terms of a conditional sentence. Counsel did so. Crown counsel set out the terms of their agreement, including the duration of the conditional sentence. Defence counsel made no further submissions relating to the duration of the sentence. The trial judge responded positively to counsel’s earlier submissions concerning the nature of the sentence. I find no reason to conclude that he would have treated additional submissions concerning the duration of sentence with a closed mind.

86. [86] The trial judge was aware of the mitigating factors that were present in this case. His focus in imposing sentence was the protection of children. Although the total duration of the sentences imposed is high, I am unable to say that it is demonstrably unfit or that the trial judge erred in principle, either in terms of the length of the sentence or in imposing the order to provide a D.N.A. sample. This case is distinguishable from both R. v. Cohen, 2001 3862 (ON CA), [2001] O.J. No. 1606 (C.A.) and R. v. Schan (2001), 55 O.A.C. 273 in which this court imposed conditional sentences of 18 months for possession of child pornography, for two reasons. First, in both of those cases, this court found that the trial judge erred by refusing to impose a conditional sentence. Second, this case involves the commission of an additional offence.

Disposition

87. [87] I would dismiss the appeal from conviction, grant leave to appeal sentence and dismiss the sentence appeal.

Released: July 5, 2002

“Janet M. Simmons J.A.”

Footnotes

1. 1List of Items Seized for Evidence: 1- polaroid camera 2- 16 news letters “Uncommon Desires” 3- 34 computer generated “jpeg” photographs 4- blue file folder containing order forms and catalogues for nudist publications 5- 25 copies of “Jeunes et Naturels” youth nudist magazines 6- 1 copy of “Paidika” the journal of paedophillia 7- 1 Show Me a Picture Book of Sex for children and parents 8- 1 As Far As The Eye Can See, photographs of nude children 9- 1 Family Naturism In Europe, nudist pictorial classic 10- 1 Canada Naturally, nudist pictures 11- 1 Family Naturism in America, nudist pictures 12- 1 Q Quick Nudist Magazine 13- A computer hard drive containing 587 “jpegs” pictures of child pornography, 34 pages of type-written stories of child pornography 14- 12 pages 8½ by 11” type-written stories of child pornography 15- numerous photographs of children – not pornographic 16- 3 nudist videos 17- 2 videos of M.-K. and A.O.
2. 2Defence counsel stated in his submissions to the trial judge at p. 16: “… your Honour will recall that the evidence is that all of these things were either in a locked desk drawer or in two locked safes which in turn were in a locked room.” The evidence of the officer-in-charge is not that precise, however, it appears that counsel were content to proceed on that basis.
3. 3R. v. Collins, 1987 84 (SCC), [1987] 1S.C.R. 265