Court of Appeal for Ontario
Judges: LaForme, Rouleau and Brown JJ.A.
Between
Her Majesty the Queen Appellant
and
Thomas Reeves Respondent
Counsel:
- Michelle Campbell, for the appellant
- Brad Greenshields, for the respondent
Heard: November 24, 2016
On appeal from: The acquittal entered by Justice André L. Guay of the Ontario Court of Justice, dated November 30, 2015.
H.S. LaForme J.A.:
INTRODUCTION
1This case arose from the seizure of a family computer from the home co-owned by the respondent, Thomas Reeves and his common-law spouse, Nicole Gravelle. The seizure was warrantless; the police retained the computer for four months without searching it, then obtained a warrant to search it and found child pornography on it.
2At the time of the seizure Reeves was subject to a court order that required him to stay away from the home unless he had Nicole's consent. Nicole revoked that consent in the same phone call to Reeves' parole officer in which she alleged that Reeves had child pornography on the computer. On the same day a police officer visited her residence where she signed a consent form for him to seize the computer.
3Reeves succeeded on a pre-trial Charter application in which he claimed the police had violated his right under s. 8 of the Charter against "unreasonable search or seizure." The application judge determined that the police had violated Reeves' right and, under s. 24(2), excluded all evidence from the computer.
4The application judge's exclusion of the evidence, the Crown says, gutted its case and resulted in an acquittal. The Crown appeals from the resulting acquittal.
5For the reasons that follow, I would allow the appeal. While I would not interfere with most of the application judge's conclusions regarding breaches of s. 8, the application judge erred in one part of his s. 8 analysis, and this error had implications for the s. 24(2) analysis. Conducting the s. 24(2) analysis afresh, I would, unlike the application judge, admit the evidence. Consequently, a new trial for Reeves must be ordered.
BACKGROUND
6Reeves had shared a home with his common-law spouse of 20 years, Nicole, and their two daughters. Reeves and Nicole had lived in this home for 10 years; Reeves contributed to the mortgage payments, and Nicole and Reeves were joint titleholders.
7On June 2, 2011, there had been "an altercation" involving Reeves, Nicole, and Nicole's sister, Natalie. The police charged Reeves with domestic assault. On October 22, 2012, the date of the computer's seizure, Reeves was in custody and subject to a "no contact" order with respect to both Nicole and Natalie. The court order allowed Reeves to visit the home only if Nicole provided her prior, written and revocable consent.
8Nicole had consented to visits by Reeves for some time, but, on October 22, 2012, she contacted Reeves' parole officer in order to withdraw her consent. According to the parole officer, Nicole initially said that her reasons for withdrawing consent were that Reeves was abusing alcohol, emotionally abusing her, and seeing other women. However, during this conversation, Nicole also reported that she and Natalie had accessed the family's computer and, according to the parole officer, Nicole "raised the concern that there were multiple videos on the computer that she believed to be of a nature of containing child pornography." Nicole also said, without providing a date, that Reeves' brother had visited the home and "attempted to delete some of the videos."
9Shortly after, Natalie called the parole officer and confirmed that "she had witnessed videos on the computer that obviously involved children" that she believed were pornographic. Natalie reported that the title of one of the videos was "11 and 12 year-old doing daddy."
10Nicole admitted in her examination-in-chief that she had not seen any pornographic images; she merely had seen titles, of which one was "13 on 13". Additionally, she confirmed that she and her sister discovered the evidence sometime in 2011, long before the date of the seizure. Natalie claimed to have reported the evidence to the police in May 2011, but the police did not respond.
11The parole officer then notified the Crown Attorney's Office of the allegations. The Crown Attorney's Office in turn notified the Greater Sudbury Police. Constable Santi arrived at Nicole's home later that day, without a warrant. Nicole allowed Cst. Santi to enter the residence and signed a consent form authorizing the seizure of the computer.
12The police retained the computer without a warrant until February 26, 2013 – more than four months. They did not search the computer during intervening time. They obtained a warrant on February 26 and executed it on February 28, but neglected to file a report on the computer to a justice, as s. 489.1(1) of the Criminal Code requires, until March 15, 2013.
13On March 15, 2013, the police sought and successfully obtained a warrant to re-seize the computer and search it, as well as an order of detention under s. 489 of the Criminal Code. When they finally searched the computer, the police discovered 140 images of child pornography and 22 videos of child pornography.
14Reeves was subsequently charged with possessing child pornography and accessing child pornography. As noted, Reeves succeeded on a pre-trial s. 8 Charter application. The Crown appeals the application judge's decision.
THE APPLICATION JUDGE'S REASONS
15The application judge identified three grounds, which he summarized at para. 40 of his reasons, for holding that the police had violated Reeves' right against unreasonable search or seizure. First, Cst. Santi violated Reeves' s. 8 right through "a warrantless search and seizure" of the computer from the home that Reeves had shared with Nicole. There were no "exigent circumstances" sufficient to justify his actions. Second, by retaining the computer for four months without reporting the seizure to a justice, the police failed to comply with ss. 489.1 and 490 of the Criminal Code. Third, the information to obtain relied upon to secure a warrant to search the computer was insufficient. Therefore, the issuing justice should have denied the warrant application.
(i) The Warrantless Retrieval of the Computer and "Consent"
16The application judge began his s. 8 analysis by citing R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 for the Crown's burden. That is, in the case of a warrantless search, once the accused establishes a reasonable expectation of privacy (REP), the Crown must prove the impugned search or seizure was authorized by law, the authorizing law itself was reasonable, and the search was carried out reasonably.
17Although the application judge found Nicole's consent to the seizure was valid, he found that Cst. Santi should have been aware, or made himself aware, of Reeves' absence from the home. Furthermore, he found the officer did not have and knew, or ought to have known, he did not have Reeves' consent to enter the private residence and remove the home computer shared by Reeves with Nicole and their two teenage daughters.
18Crucially, the application judge dismissed the Crown's argument to treat Cst. Santi's retrieval of the computer as a "consent" case. The application judge interpreted the Crown's theory to be that Nicole consented on behalf of Reeves, and relying on Cole, at paras. 77–79, he held that a third party cannot "validly consent to a search or otherwise waive a constitutional protection on behalf of another."
19The Crown argued that, in seizing the computer, the police acted on the honest, but mistaken, belief that Nicole's consent alone could authorize the seizure. At para. 20, the application judge rejected this argument because, given its resources and expertise, the Sudbury police should have known that "in matters of search and seizure of property in which there is a reasonable expectation of privacy, consent is mandatory and cannot be given by third parties."
(ii) Analysis Under the Criminal Code ss. 489.1 and 490
20The application judge noted that s. 489.1 of the Criminal Code requires the police officer who seized the property to make a Report to a justice "as soon as practicable" about the seizure. Section 490(1) then requires approval of a justice for retention of the seized property beyond three months. Here, the police kept the computer for more than four months without authorization from a justice.
21The application judge cited this court's recent decision in R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at para. 46, for holding that retention of seized property in breach of s. 489.1(1) is not "authorized by law" for purposes of the seizure's reasonableness according to Collins. This also supported a violation s. 8 of the Charter.
(iii) The Information to Obtain the Search Warrant
22The application judge began this analysis by noting that one should presume a search warrant "to be valid on its face"; Reeves had the burden to prove otherwise. He explained that a justice of the peace had issued a search warrant with respect to the Reeves-Gravelle computer approximately four months after the police obtained the computer from their home.
23While not endorsing all of Reeves' criticisms of the information to obtain (the "ITO"), the application judge, at para. 38, agreed that the affidavit in support was "a goal-oriented, selective presentation of the facts" that provided "an unfair, unbalanced and misleading" portrayal of Reeves. This, he concluded, deprived the justice of the peace of the information necessary to assess whether there were reasonable and probable grounds for searching the computer.
24Additionally, the application judge criticized the ITO for not explaining why the police had retained the computer for four months from the date of seizure.
(iv) The s. 24(2) Charter Analysis
25The application judge began this section by reciting the correct factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. Although he recited his conclusions under each Grant factor at para. 49 of his reasons, he did not clearly divide the substance of his analysis under those headings. His analysis relies mostly on Garcia-Machado, focusing on the reasons this court provided in that case for not excluding the evidence.
26First, the application judge noted that, unlike in Garcia-Machado, the police did not obtain a warrant before the impugned seizure of the computer. Second, he restated his characterization of Reeves' privacy interest: (i) Nicole and Reeves were "joint owners" of the computer; and, (ii) they protected it with a password that was available to each of them and "presumably, with their consent, to their teenage daughters and those who might visit the home and ask to use the computer." He rejected Nicole's suggestion that anyone in the house had unrestricted access to the computer, finding instead that the computer "was password protected, even if not strongly so."
27Third, the application judge distinguished Garcia-Machado, where this court found, at para. 62, that "the property seized was that specifically authorized by the warrant" and that "the property was used for the precise purpose for which it was obtained." In contrast, at para. 44, he found that Cst. Santi "had an idea of what material he was looking for but, as the applicant argued, what the police were looking for was arguably not what had actually been reported to them nor was it likely to still be readily available within the computer."
28Fourth, the application judge focused on the degree of deprivation that Reeves had suffered from the seizure of the computer. Unlike in Garcia-Machado, where the accused had not been "deprived of the use or enjoyment of the items" seized (blood samples and hospital records), he found at para. 46, that the computer was the kind of property of which Reeves would have wanted to make use in his private life "with respect to the personal material he had in the computer."
29The application judge's conclusions, at para. 49, on the first two Grant steps followed from the previous analysis in light of Garcia-Marchado. For the final step, he found that the alleged offences were "serious in nature and strongly call for adjudication on the merits." However, in balancing the Grant factors, he concluded that exclusion of the evidence was necessary because of the police's "flagrant disregard" of Reeves' s. 8 Charter right and the "ancillary rights" in ss. 489.1 and 490 of the Criminal Code. He relied on R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 108–111, in support of his conclusion, though he also noted, at para. 52, that the unconstitutional police conduct was "largely not motivated by bad faith."
(v) Disposition
30The application judge granted Reeves' application to exclude the evidence obtained as a result of the "search and seizure of his home computer" as well as "any evidence derived from a forensic examination of that computer, its files and hard drive." And as already noted, an acquittal resulted.
THE ISSUES
31The Crown raises the following three issues:
Did the application judge misapply R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, resulting in his finding that the consent seizure of the computer violated s. 8 of the Charter?
Did the application judge err by substituting his own view of the evidence for that of the Justice who issued the search warrant?
Did the application judge err by excluding the evidence of child pornography pursuant to s. 24(2) of the Charter?
32As I will detail below, I would allow the appeal. I find the application judge erred in his conclusion that Reeves' s. 8 Charter protection rights were violated when the police attended at the house and secured the computer. I do, however, agree with his finding that Reeves' s. 8 rights were breached in connection with the search of the computer. Finally, based upon a fresh s. 24(2) Charter assessment, and contrary to the application judge, I would admit the evidence of child pornography at trial.
ANALYSIS
33I begin my analysis with some basic principles.
34First, the right to be secure against unreasonable search and seizure in s. 8 of the Charter protects more than a narrowly conceived right to privacy, in the sense of a general "right to be let alone": see for example R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 12–16. From Hunter v. Southam Inc., [1984] 2 S.C.R. 145 onwards, the "reasonableness" inquiry in the search and seizure context has always focused on the proper limits placed on state power. The state may employ "legitimate but limited investigative techniques" that strike a proper balance between the rights of the individual and the needs of society: R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49, at paras. 23–25. Where the state exercises such powers, there must be proper safeguards that permit potentially improper decisions to be scrutinized: R. v. Tse, [2012] 1 S.C.R. 531, 2012 SCC 16, at paras. 82–85. And such limits on the exercise of state power ultimately foster "underlying values of dignity, integrity and autonomy" by protecting the ability of individuals to make important choices about their lives: R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.
35Second, it is well settled that privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 14–15. If the claimant has a reasonable expectation of privacy (REP), s. 8 is engaged, and the court must then determine whether the search or seizure was reasonable: Cole, at paras. 35–36.
36Finally, where a search is carried out without a warrant, it is presumptively unreasonable: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; Hunter v. Southam, at p. 161. To establish reasonableness, the Crown must prove on the balance of probabilities that: (1) the search was authorized by law, (2) the authorizing law was itself reasonable, and (3) the authority to conduct the search was exercised in a reasonable manner: Nolet, at para. 21; Collins, at p. 278.
37With this general statement of the law, I will now proceed to examine and discuss the issues.
(1) Did the application judge misapply R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, resulting in his finding that the consent search of the home and seizure of the computer violated s. 8 of the Charter?
38The application judge found Nicole freely consented to the search and seizure. However, he concluded that a third party cannot "validly consent to a search or otherwise waive a constitutional protection on behalf of another." In doing so he relied on Cole, at paras. 77–79.
39The Crown submits the application judge erred in applying Cole to exclude the evidence on the basis that Nicole could not consent to the search of the family home or the seizure of the family computer. Reeves disagrees, submitting the application judge got it right – Nicole was a third party, and could not consent on Reeves' behalf.
40I begin by setting out the law on consent searches, then consider Reeves' privacy interest, and conclude by analyzing the validity of Nicole's consent.
(i) The Law on Consent Searches for Joint Residents
41The Supreme Court has described a valid consent as a waiver that immunizes a search or seizure from challenge under s. 8. Consequently, as Doherty J.A. held in R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.), cited with approval in R. v. Borden, [1994] 3 S.C.R. 145, at p. 162, the "force of consent must be commensurate with the significant effect it produces". Given the significant effect of such a waiver for the person whose rights are at play, it must clearly be shown that consent was fully informed, and voluntary: Borden, at p. 162.
42Consent must also come from the right person. The person who consents must be the person whose rights are engaged. Someone else cannot waive your s. 8 rights for you. This is what the Supreme Court decided in Cole, at paras. 74–79, when it rejected the doctrine of third party consent in the context of employer-provided computers.
43That said, in the context of joint residence or joint home ownership, the law of consent to search and seizure is not entirely settled. The Crown submits that where two or more people have "an equal and overlapping privacy interest in a residence", any of the co-habitants can validly consent, and the police need not seek the consent of each co-habitant. In support of this submission the Crown relies on trial level authorities, as well as R. v. Squires, 2005 NLCA 51, [2005] N.J. No. 253, at para. 34, leave to appeal dismissed [2005] S.C.C.A. No. 561 and R. v. R.M.J.T., 2014 MBCA 36, [2014] M.J. No. 115, at paras. 51–52. The weight of the trial court jurisprudence suggests a contextual test – a co-resident can usually consent to a search of the common areas, but not the private areas of another resident, such as his or her bedroom or dresser.
44The Crown submits Cole does not change the law with respect to spousal or co-habitant consent searches and seizures where equal and overlapping privacy rights are involved. As the Manitoba Court of Appeal expressed it in R.M.J.T., at para. 51:
Had the Supreme Court of Canada in Cole intended to diminish the developing law respecting consent to enter a dwelling house, in my view, it would have said so in clearer terms … It did not do so because that was not the issue before it.
45For his part, Reeves rejects that one resident can consent to a search or seizure on behalf of all residents who have "equal and overlapping" privacy interests. He says such a holding is inconsistent with Cole. The court, he says, should not be drawn into an "ex post facto metaphysical analysis of who 'has a superior or unique privacy interest' in the subject matter of the search". The privacy interest of one resident does not neuter the privacy interest of another, nor does a common law property right to allow entry confer the constitutional power to waive the s. 8 right of another.
46In my view, the dispute between the Crown and Reeves on this issue misses the point. In the case of joint residents, the question is not whether one resident can waive the constitutional rights of another. Of course they cannot. Rather, the question is what, if any, impact the fact of joint residency has on one's expectations of privacy, assessed in the totality of circumstances.
47In Search and Seizure Law in Canada (loose-leaf), vol. I (Toronto: Thomson Reuters, 2016), Hutchison et al write, at 7–12.7 to 15,
[i]n order to determine who may consent to a search, the guiding principle must be the 'reasonable expectation of privacy' referred to by the Supreme Court in Hunter v. Southam Inc. If an individual would not reasonably expect another person to be able to authorize a search, then that person cannot consent to a search.
Thus, the authors point out, a parent of a suspect may ordinarily consent to searches of areas of the familial home where the suspect does not expect restrictions on the access of others to those spaces; by contrast, a co-resident in an apartment may not be able to consent to a search of private areas of the other co-resident to which they are not ordinarily expected to have access. For similar reasons of reasonable expectation, the court held in R. v. Wong, [1990] 3 S.C.R. 36 that the fact a hotel maid has access to one's room does not necessarily give the hotel the right to consent to a police search of the room. Likewise, the employer could not consent to a search of the laptop in Cole.
48At a high level of generality, the fact of co-residency is clearly relevant to reasonable expectation of privacy. Descriptively, a co-resident knows from the outset that the other co-resident has the right to invite others into shared spaces. Further, normatively, it would not be reasonable for one resident to expect that the other co-resident could never invite an agent of the state into the residence. In fact, one could reasonably expect that the other might have a legitimate interest in consenting to entry by law enforcement into common spaces from time to time. Of course, by the same token, one would not reasonably expect police entry without the consent of another co-resident. And certainly the facts and circumstances of the case – including the nature of living arrangements – will shape the reasonable expectations of co-residents.
49In other words, in the co-residency context, consent by a co-resident other than the accused is not relevant as a form of waiver. Rather, it is relevant as part of determining whether the police have intruded upon a reasonable expectation of privacy held by the accused.
50Therefore, in my view, the inquiry is two-staged: (a) would the accused reasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (b) if so, did the co-resident actually consent? Of course, the specific facts and circumstances will drive the answer to both of those questions.
51Before moving on, two final notes about consent. First, an accused does not reasonably expect the police to be able to enter without the valid, voluntary and informed consent of a co-resident. Nor does an accused reasonably expect police to go beyond the scope of consent provided by the co-resident in entering the space. Where the police do so without justification, the accused's reasonable expectation of privacy will be violated.
52Second, in my view, the analysis I have described also applies with respect to consent to seizure of jointly owned property within a shared residence, though different circumstances may call for a different analytical approach, and discrete issues of seizure may raise different questions of reasonable expectation. As will become clear below, on the facts of this case the expectations of privacy relevant to seizure of the computer and the entry into the shared spaces of the home are intertwined and must be analyzed together.
53With those principles in mind, I turn first to assessing Reeves' expectation of privacy in the totality of the circumstances.
(ii) The Extent of Reeves' Expectation of Privacy
54In assessing Reeves' expectation of privacy, I begin with two comments regarding computer searches and seizures. First"it is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer": R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 105. Second, computer searches involve unique privacy interests that are often not captured by traditional analyses that apply to ordinary physical objects or places: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 1–2.
55The search of computers implicates important privacy interests which are different in both nature and extent from the search of other "places". Computers may generate information about intimate details of the user's interests, habits and identity without the knowledge or intent of the user. They may retain information even after the user thinks that it has been destroyed. Thus, the nature of the privacy interest in a computer is qualitatively and quantitatively different from many ordinary physical objects or places used to store information: Vu, at paras. 38 and 41–47.
56Importantly, however, the court in Vu also held that, while s. 8 requires "specific, prior authorization" for police to search a computer, police officers may seize a computer without a warrant while engaged in a legally-valid search of the place in which they find the computer: Vu, at paras. 3 and 49.
57These recent pronouncements by the Supreme Court inform the analysis that follows, especially the proper characterization of Reeves' expectation of privacy. They provide context to the specific circumstances of this case.
58The facts in this case raise two separate instances of search and seizure and whether or not they engaged a s. 8 Charter interest. The first is the warrantless search of the jointly-owned home and the seizure of a jointly-owned computer. The second is the authorized search of the computer and the seizure of its stored information and data said to belong to Reeves. At this stage, we are concerned only with the former.
59Section 8 of the Charter only protects a reasonable expectation of privacy and there are varying degrees of privacy. The higher the expectation of privacy, the greater the claim to constitutional shelter: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 19–21. In the circumstances of this case, Reeves' expectation of privacy in the shared spaces of the family home and in the family computer was greatly diminished.
60As a consequence of the domestic altercation, Reeves could not access the home except with Nicole's permission. At the time of Cst. Santi's visit, this status had persisted for over a year. On the same day as Cst. Santi's visit, Nicole had revoked her consent in a phone call to Reeves's parole officer. Furthermore, Reeves had been arrested the day before and was still in custody. Thus, although Reeves remained the joint-owner of the home, he had a diminished REP in it: see R. v. Edwards, [1996] 1 S.C.R. 128. His REP at the relevant time was minimal.
61As for Reeves' REP in the computer, as Karakatsanis J. wrote (dissenting) in R. v. Fearon, 2014 SCC 77, [2014] S.C.R. 621, at para. 155"it is the information that attracts a heightened expectation of privacy." Seizing the computer did not interfere with Reeves' heightened expectation of privacy in its informational content; it did not imperil any of his legitimate interests, beyond mere property rights. As the Supreme Court held in Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 52, s. 8 does not permit an individual to challenge "mere restrictions on the exercise of property rights."
62In sum, on the facts of this case, whatever interest Reeves retained in the home and the physical object of the computer were severely diminished. Indeed, in light of the history and legal status between them, it would have been within Reeves' reasonable expectations that Nicole might have a legitimate interest in consenting to police access to the shared space and property. It was not reasonable for Reeves to expect Nicole would not be able to consent to police entry into the common areas of the home or to the taking of the shared computer.
(iii) Nicole's Ability to Consent
63Having found Nicole could consent, it remains to be determined whether her consent was valid.
64The application judge held that it was. In this court, Reeves takes issue with that finding, submitting the requirements for a valid consent were not made out. The Crown, for its part, says the application judge's finding of consent was reasonable and not infected by palpable and overriding error.
65The application judge found that Cst. Santi entered the jointly-owned home with the specific purpose of seizing the computer and not for any other unrelated purpose.
66Cst. Santi was responding to a call received that day from Reeves' probation officer who advised that Nicole had reported seeing child pornography on the family computer. Upon arriving at the residence, the officer informed Nicole that he was responding to that call. After personally speaking with both Nicole and Natalie, he satisfied himself an offence had been committed.
67Nicole signed a consent form granting permission to Cst. Santi to enter the residence and search the residence "and its contents, which are owned and/or controlled by me, and seize anything or arrest any person that is believed to be relevant to this investigation."
68Nicole then either brought the computer to him or he went into the basement to get it. Cst. Santi did not search any area of the home nor did he seize any additional property. Once he obtained the computer it was locked up and was not searched until judicial authorization to do so had been obtained.
69The application judge found Nicole's consent to the seizure of the computer was valid, but found as a matter of law that she was not able to consent by virtue of Cole. As I have already said, that was an error.
70Other than that legal error, however, I see no reason to interfere with the trial judge's factual finding of consent. Given that the written consent was voluntary and informed, the police were authorized to act on that consent: see Borden.
71In so holding, I should not be taken to be stating that the police can rely on a bone fide mistaken belief in consent to justify a warrantless search. Reeves suggests this is what the application judge determined, pointing to comments the application judge made in para. 11 of his reasons. I disagree. In my view, reading the reasons as a whole, the application judge found as fact that Nicole did provide a valid consent, notwithstanding the potentially conflicting components of her testimony mentioned in passing at para. 11. As Doherty J.A. held in Wills"where the Crown relies on the consent of an individual as authorization for a seizure and fails to establish the validity of that consent, then the seizure cannot be brought within s. 8 based upon the police officer's perception of the validity of the consent". Here, the finding was one of actual, valid, informed consent, not merely one of bona fide mistaken belief in consent.
(iv) Conclusion on the Consent Search and Seizure
72This ground of appeal is allowed. The trial judge erred in finding Nicole could not consent to the search of the shared areas of home and the seizure of the computer by police. He made no error, however, in finding as fact that her consent was valid. Consequently, there was no breach of s. 8 on this ground.
(2) Did the application judge err by substituting his own view of the evidence for that of the justice who issued the search warrant?
73Having considered the first instance of search and seizure (the consent entry into the home and taking of the computer) I turn now to the second (the police retention of the computer and access to its informational content).
74The issue here is the process used to obtain the police's authorization to intrude on what everyone agrees is highly private digital information. The application judge held that the Information to Obtain ("ITO"), which the police relied on to obtain a warrant to search the computer, was insufficient to have justified the granting of a search warrant. The Crown takes issue with the application judge's review of the ITO, submitting he substituted his own view of the sufficiency of the evidence for that of the issuing justice, thereby falling into error. Reeves disagrees, submitting the application judge made no error in his assessment of sufficiency nor in his conclusion that there was a s. 8 breach.
(i) A Note on The Retention of the Computer
75Before assessing the arguments regarding the ITO, a brief comment on the police's retention of the computer.
76The application judge held that by retaining the computer for four months without reporting the seizure to a justice, the police failed to comply with ss. 489.1 and 490 of the Criminal Code.
77The Crown acknowledges that the failure to make a timely report to a justice is a s. 8 violation, as this court held in Garcia-Machado. However, it says this was a technical breach that was not motivated by bad faith, and was corrected as soon as the error came to light. The Crown submits that this error, standing on its own, does not justify the exclusion of otherwise independently credible evidence of child pornography under s. 24(2).
78I am not entirely persuaded that it is appropriate to describe this as merely a technical breach. As Hoy A.C.J.O. noted in Garcia-Machado, at para. 55, the requirement to make a timely report to a justice is the "gateway" to the important procedural protections set out in ss. 489.1 and 490. As Moldaver and Karakatsanis JJ. wrote in R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 83, s. 8 implies "not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy". I would be wary of any attempt to characterize the failure to meet the reporting requirements set out in s. 489.1 as trivial or insignificant.
79Even assuming for the sake of argument this was a technical breach, however, the application judge found other problems with the computer search that, when considered along with this, amount to more than a technical breach. Thus, I turn back to the sufficiency of the ITO.
(ii) Legal Principles Governing Warrant Review
80Brown J.A. recently provided a helpful collection of the jurisprudence on the role of a reviewing judge on a Garofoli application in R. v. Hafizi, 2016 ONCA 933, 343 C.C.C. (3d) 380, at para. 44:
The test a reviewing judge is to apply is whether, in light of the record amplified on review, the ITO "contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met": R. v. Nero, 2016 ONCA 160, 345 O.A.C. 282, at para. 70. If on the amplified record the reviewing judge "concludes that the authorizing judge could have granted the authorization, then he or she should not interfere": R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. In this process"the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge": Garofoli, at p. 1452; R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 47–48.
81This court owes deference to the reviewing judge's findings of fact made in his or her assessment of the record, as amplified on review, and to his or her disposition of the s. 8 challenge: R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 87, at para. 89. But warrants are presumptively valid and the reviewing judge must not conduct a de novo assessment of the grounds for authorization.
82Nevertheless, as noted in Hafizi, at para. 43, though a reviewing judge must respect the limits of his or her task, the "reviewing judge plays a constitutionally vital role in guarding against potentially unjustified invasions of privacy authorized in ex parte proceedings". In my view, the bar for review of ex parte authorizations should not be set so high as to sap the review process of meaning. Where the adversarial process reveals the ITO contained significant misleading information, the reviewing judge should not be placed in a straightjacket of absolute, unyielding deference to the hypothetical possibility of the authorizing judge still granting an ex parte authorization. The standard is whether the authorizing justice reasonably could still have granted the authorization, not whether there is a slight chance or theoretical possibility that he or she could have done so. And, as noted above, this court owes deference to the reviewing judge's assessment on that issue.
(iii) Application
83In my view, the application judge made no palpable and overriding error in (i) determining the ITO contained misleading information and omitted relevant information, and (ii) further concluding that, once the record was corrected, there no longer was a reasonable basis upon which the authorizing could have issued the warrant.
84The application judge reviewed Reeves' complaints regarding the ITO, and then concluded that although he did not agree with "all of the accused's criticisms with respect to the clarity and accuracy of the information", nevertheless the ITO reflected "a goal-oriented, selective presentation of the facts" that resulted in "an unfair, unbalanced and misleading" portrayal of Reeves. Implicit in his analysis is his conclusion that, had the relevant facts been included and misleading statements excised, there would no longer be a reasonable basis for issuance of the warrant.
85I agree with the Crown that it would have been preferable for the application judge to specifically spell out which of Reeves' complaints about the ITO he agreed with. That said, I do not agree that his failure to do so "frustrates appellate review". Reading the relevant portion of his reasons as a whole, it is clear the application judge's conclusion was motived by the following concerns articulated by Reeves, all of which, in my view, were supportable on the record before the application judge.
86First, the affiant omitted from the ITO information regarding potential animus by Nicole and Natalie Gravelle towards Reeves. The affiant was aware of previous police incidents and criminal assault charges involving Reeves and the Gravelle sisters that would have been potentially relevant information of a motive to fabricate or exaggerate claims of criminal wrongdoing against Reeves. The affiant did not set out these incidents in the ITO. Similarly, the affiant included in the ITO information regarding 22 police service calls made from the Reeves-Gravelle residence, but failed to point out that in none of those calls for service did either Natalie or Nicole mention any concern about child pornography; he conceded in cross-examination that, had child pornography been mentioned, he would have stated this in the ITO.
87Second, at paras. 37–44 of the affidavit sworn by Cst. Ramsay in support of the search warrant, he suggests that Nicole "stumbled across … downloaded movies" and went into some of the sites where she saw what she believed was child pornography. However, Cst. Santi agreed that Nicole never told him that she had seen downloaded movies or images of child pornography on the computer. He testified that he would not have said any of this to the affiant.
88To the extent the affiant made assertions in the ITO that the sisters, Nicole and Natalie had witnessed downloaded files of child pornography on the computer, these portions of the ITO were erroneous.
89The only substantive information concerning allegations of child pornography in the ITO was limited to the written statements of Natalie and Nicole on October 22, 2012. The statements disclosed only their exploration of the internet browsing history on the computer. Further, Nicole testified that she never saw any images or movies of child pornography, just titles that were suspicious, and this was on a website. Indeed, the application judge, at para. 10, noted that Nicole had seen "nothing except names", and "not pictures", and that she just "read random names."
90It was open to the application judge to conclude that, taken together, the statements of Natalie and Nicole, and Nicole's testimony for the application establish that all they discovered was Reeves' browsing history. As Fish J. described it in Morelli at para. 14:
… merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1(4.1) of the Criminal Code
91Third, and relatedly, the ITO identified the offence of possession, rather than accessing. Under s. 487 of the Criminal Code, it is necessary to identify the specific offence that is alleged to have been committed and in relation to which it is believed the search will afford evidence. Appendix "B" of the ITO alleged the single offence of possession of child pornography — s. 163.1(4). The warrant was limited to this offence and no other. As I have said, browsing history evidence was not capable of providing reasonable and probable grounds in respect of a possession charge, rather than an accessing charge: see Morelli, at paras. 6–7, 63–66.
92In sum, it was open to the application judge to conclude the grounds alleged in the ITO, excised of erroneous information, were not capable of meeting the test that "there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued": R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 54. That is, in this case there was not sufficient credible and reliable evidence to have permitted the justice of the peace to find reasonable and probable grounds to believe that Reeves was in culpable possession of child pornography and that evidence of that crime would be found in the computer: see Morelli, at para. 62.
93I would add, parenthetically, that the grounds relied upon in the ITO in this case were arguably even less reliable when one adds to it the passage of time from the alleged observations – some 18 months – during which the computer had been used regularly, and a suggestion the drive may have been "wiped."
94The Crown raises differing factual interpretations of the points I have described above, pointing to conflicting evidence in the record. However, the Crown has not established that the application judge committed a palpable and overriding error in his assessment of the record as amplified on review. He understood the relevant law and there was clearly evidence in the record before him that would allow him to make the findings necessary to arrive at the conclusion he did. Consequently, there is no basis to interfere with his decision.
(iv) Conclusion Regarding the ITO
95The application judge made no error in determining that, in light of the record as amplified and corrected on review, the test to issue the warrant could not be met. Indeed, in my view, the circumstances in this case are very much the same as those in Morelli and the application judge made no error in determining the warrant could not have issued. I would not interfere with his conclusion that the subsequent search of the computer violated s. 8 of the Charter.
(3) Did the application judge err by excluding the evidence of child pornography pursuant to s. 24(2) of the Charter?
96Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71 instructs that this requires a balancing assessment involving three broad inquiries: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.
97Where a judge has considered the proper factors and has not made any unreasonable findings, his or her decision to exclude evidence under s. 24(2) of the Charter is owed considerable deference on appellate review. However, if relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate: Cole, at para. 82.
98In excluding the evidence, the application judge focused heavily on the issue of third party consent in finding the Charter infringing state conduct to be serious. As I have said, the application judge erred in finding a breach on that basis. Therefore, this case is one where a fresh Grant analysis is both necessary and appropriate.
99This court recently summarized the post-Grant paradigm for s. 24(2) in R. v. McGuffie, 2016 ONCA 365, 28 C.R. (7th) 243. In McGuffie, at paras. 62–63, Doherty J.A. describes the paradigm as follows:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
100Here, the application judge erroneously found the seizure of the computer violated Reeves' s. 8 Charter rights. He correctly, as the Crown properly concedes, found the police violated Reeves' s. 8 Charter right by not complying with ss. 489.1 and 490 of the Criminal Code. Although, he notes, at para. 52, that the police conduct was "largely not motivated by bad faith." And, he correctly found the ITO was insufficient to have justified the granting of a search warrant.
101I turn now to my fresh assessment of the exclusion analysis under s. 24(2).
102First, the seriousness of the Charter-infringing state conduct. As I have said, I am skeptical of describing non-compliance with ss. 489.1 and 490 as "technical", for the reasons given by Hoy A.C.J.O. in Garcia-Machado. At para. 12, the application judge noted Cst. Santi's evidence that his usual practice was to make a report in compliance with the Code, but he could not provide any explanation as to why he failed to do so in this case. In the absence of an explanation, the breach cannot be said to be merely "technical". However, as the application judge properly noted, this was a case of delayed compliance rather than non-compliance. This, together with the absence of any evidentiary basis for concluding this failure was intentional, makes the state's conduct less serious.
103Similar comments can be made regarding the sufficiency of the ITO. As the application judge noted, there is "a duty on the part of affiants in ex parte proceedings to provide 'full, fair and frank disclosure' of the facts to the presiding justice". The application judge's findings do not suggest the misleading information in the ITO came from the investigating office, Cst. Santi. Rather, they suggest the affiant, Det. Cst. Ramsay, communicated the facts he had been provided in a misleading or incomplete manner. There is insufficient basis to infer an intention to mislead, especially in light of the application judge's finding that this was not a case of bad faith police conduct. What the application judge found was the ITO displayed "a goal–oriented, selective presentation of the facts".
104That said, there are certain important facts in the record that militate against finding that the police committed a serious breach with respect to the ITO. While it was open to the application judge to find the affiant had misleadingly described what Natalie and Nicole had seen on the computer, the affiant, to his credit, included the full text of their police statements in the ITO. This indicates a desire to be accurate and complete, notwithstanding the shortcomings in his descriptions of the evidence elsewhere in the affidavit. Likewise, while the application judge was entitled to conclude it was misleading to omit the evidence of potential animus, that evidence was also potentially prejudicial towards Reeves, consisting as it did of domestic violence allegations. It would be difficult to argue the officer acted negligently or in bad faith in excluding it.
105In sum, in my view the state conduct in question is not as serious as the application judge described, in light of his focus on third-party consent issue, which I have held to reflect a legal error. While I would not describe the breaches as merely "technical", as the Crown invites this court to do, I would also not describe them as particularly serious.
106Second, the impact of the breach on the accused's Charter protected interests. On this factor, of greatest concern is the police's access to private information. Data found on a personal computer can cut to a person's "biographical core" of personal information, strongly engaging the interests protected by s. 8: see, for example, Morelli, at paras. 104–106. That the search in this case happened to reveal illicit material is of no moment at this stage of the analysis. Just as in the context of assessing the accused's reasonable expectation of privacy, when assessing the impact of a breach on the accused's privacy interests, the analysis must be conducted in a content-neutral fashion: see, generally, R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36. The fact remains that the Charter-infringing state conduct permitted the state to enter into a deeply private digital sphere: Spencer, at para. 78. Therefore, the breach had a high impact on Reeves' Charter protected privacy interests.
107In practice, the third Grant factor — society's interest in an adjudication on the merits — becomes important only "when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence." This case, it seems to me, is the type of case that Doherty J.A. had in mind.
108In this case, the third Grant factor points strongly in favour of admitting the evidence. The images and videos that the police ultimately found on the computer are reliable evidence of at least the crime of accessing child pornography, if not of the crime of possessing child pornography. The Supreme Court recently emphasized that the social importance of prosecuting the sexual exploitation of children requires no elaboration: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 66; see also Spencer, at para. 80.
109This is a borderline case. The police conduct had a significant impact on Reeves' Charter protected privacy interests, but society has an extremely strong interest in this evidence being placed before a trier of fact for a determination on the merits. Ultimately, in reviewing the trial judge's findings regarding the seriousness of the state conduct, and in evaluating that conduct myself, I conclude this is not a case in which the state conduct factor strongly favors exclusion. Had the state conduct been any more serious, exclusion might be warranted. But in balancing the three Grant factors, I conclude that the repute of the administration of justice would be undermined more than bolstered by excluding the evidence.
110For these reasons, I would allow this ground of appeal and admit the evidence.
DISPOSITION
111As I noted earlier, I would allow the Crown's appeal on the first ground. Flowing from that, and on my fresh s. 24(2) analysis, I conclude the admission of the evidence would not bring the administration of justice into disrepute. Given the considerable societal interest in a trial on the merits in this case, I would set aside the exclusionary order and order a new trial.
Released: May 5, 2017
"H.S. LaForme J.A."
"I agree. Paul Rouleau J.A."
"I agree. David Brown J.A."
1One factor which I have given no weight in my analysis is the concept of "discoverability". The Crown might reasonably argue that the police could easily have avoided any Morelli problems by seeking a warrant for accessing child pornography rather than for possession, and that the evidence much more strongly supported that view. The reason I have not considered this point is that the jurisprudence seems to suggest the discoverability factor will "cut both ways" much of the time – while discoverability will generally lessen the impact of a breach, it may also make the breach more serious: see Grant, at paras. 122–123; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 64–74. In my view, the trend in the jurisprudence following Grant and Côté is to move away from using discoverability concepts in s. 24(2) analysis. While I do not foreclose the possibility that it might be relevant in some cases, I find the factor to be of no real assistance here.
