COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cuttell, 2012 ONCA 661

DATE: 20121002

DOCKET: C52091

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Douglas Cuttell Appellant

Counsel: P. Andras Schreck and Jill Presser, for the appellant Michal Fairburn, for the respondent James Stribopoulos and Lindsay Daviau, for the intervener, the Canadian Civil Liberties Association

Heard: January 12, 2012

On appeal from the conviction entered by Justice Leslie C. Pringle of the Ontario Court of Justice on December 8, 2009.

Doherty J.A.:

I

[1] This appeal was argued with R. v. Ward (C50206). The trial judge, in reasons reported at 2009 ONCJ 471, 201 C.R.R. (2d) 342 found that the search of the appellant’s computer, revealing vast amounts of child pornography, contravened s. 8 of the Canadian Charter of Rights and Freedoms. However, she admitted the evidence under s. 24(2) of the Charter and convicted the appellant. The appellant appeals from the conviction arguing that the trial judge erred in understating both the seriousness of the state conduct that breached his s. 8 rights and the negative impact of that breach on his privacy rights.

[2] Crown counsel chose not to challenge the trial judge’s s. 8 ruling on this appeal. She accepted the breach of s. 8, but argued that the trial judge’s ruling admitting the evidence revealed no error meriting appellate intervention. Crown counsel stressed the deference owed in this court to the trial judge’s s. 24(2) analysis, assuming of course that the analysis reveals no legal error.

II

[3] As in Ward, the police obtained a search warrant for the appellant’s home and computer based in part on subscriber information (the appellant’s name and address) provided to the police by Bell Sympatico, the appellant’s Internet service provider. The police obtained that information, again as in Ward, without the benefit of a warrant or a production order, but rather pursuant to a request made of Bell Sympatico referred to as a Law Enforcement Request (“LER”).

[4] At trial, the appellant successfully argued that the police had violated his s. 8 rights when they obtained his name and address from Bell Sympatico without first obtaining judicial authorization. The appellant further contended that the information obtained from Bell Sympatico should be excised from the information relied on to obtain the search warrant and that without the information provided by Bell Sympatico, the warrant would not have issued. The appellant next submitted that as the warrant would not have issued absent the constitutional breach, the search of his computer must be regarded as a warrantless search in violation of his s. 8 rights. He further argued that the evidence gathered in the search should be excluded.

[5] At trial, the Crown submitted that the police did not violate the appellant’s s. 8 rights when they obtained his name and address from Bell Sympatico. The Crown agreed that if the police did breach s. 8 when they obtained the information from Bell Sympatico, that the warrant could not stand and the search of the appellant’s home and computer violated s. 8. The Crown argued, however, that the evidence should not be excluded under s. 24(2).

III

[6] I would dismiss the appeal. First, in light of my analysis in Ward, the police did not infringe the appellant’s rights under s. 8 when they obtained his name and address from Bell Sympatico. The warrant was, therefore, properly issued and there was no s. 8 violation. Second, assuming there was a s. 8 violation, I see no legal error in the trial judge’s s. 24(2) analysis. This court must defer to that analysis.

RELEASED: “WW” “OCT 02 2012”

“Doherty J.A.”

“I agree W. Winkler C.J.O.”

“I agree S.T. Goudge J.A.”