R. v. John, 2018 ONCA 702

minicounsel

[Indexed as: R. v. John]

Ontario Reports

Court of Appeal for Ontario

Watt, Pardu and L.B. Roberts JJ.A.

September 4, 2018

142 O.R. (3d) 670 | 2018 ONCA 702

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory minimum six-month sentence for possession of child pornography grossly disproportionate and violating s. 12 of Charter in reasonable hypothetical — Violation not justified under s. 1 of Charter — Court noting mandatory minimum unnecessary as denunciation and deterrence being primary sentencing principles in child pornography offences — Canadian Charter of Rights and Freedoms, ss. 1, 12.

Charter of Rights and Freedoms — Search and seizure — Police finding some images of child pornography on accused's computer during preliminary warranted search — Police then searching all images and videos on computer — Trial judge not erring in finding that extensive search was necessary as accused may have attached misleading names to files or otherwise disguised their content — Where some images of child pornography have been found on computer during warranted search, prior evidence of concealment of incriminating evidence not required before police could look at all images and videos — Trial judge correctly holding that police entitled to look at Internet search history and dates and times of access to accused's Internet accounts to determine which person with access to IP address had searched for child pornography.

Criminal law — Sentencing — Child pornography — Court noting denunciation and deterrence being primary sentencing principles in child pornography offences — Accused having serious mental health issues and seeking treatment prior to appeal — Ten-month sentence for possession of 89 unique videos and 50 unique images of extreme child pornography being fit and but for considerable efforts at rehabilitation, could have been much higher.

Facts

The accused was convicted of possession of child pornography. The police obtained a warrant to search his computer for evidence of child pornography. A police officer with technical expertise who conducted an on-site preview of the accused's computer found images and videos of child pornography on the computer's hard drive, identified files bearing the hash values of known child pornography and found evidence of a deleted peer-to-peer file sharing programming. The computer was seized. The officer who did the preview provided the results of that "pre-categorization" to another officer, who not only examined the pre-categorized files and determined that they contained images of child pornography, but also systematically examined every image and video located on the hard drive. The officer doing the search also examined the Internet search history to determine whether the user of computer had been conducting searches related to child pornography and the time, date and IP address used to access the accused's Internet accounts. The trial judge rejected the accused's argument that the search of the computer was unreasonably invasive and violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms. At the time, the offence of possession of child pornography attracted a mandatory minimum sentence of six months' imprisonment. The trial judge sentenced the accused to ten months' incarceration. The accused appealed from both conviction and sentence.

Decision

Held, the appeal should be dismissed.

The trial judge did not err in finding that the extensive search of the computer was necessary as child pornography had been found on the computer during the initial preliminary searches and as the accused could have attached misleading names to files or otherwise disguised the nature of their content. Prior evidence of concealment of incriminating evidence is not required before the police can look at all images and videos stored on a computer in this kind of investigation where some child pornography has been located on the computer on initial examination. To limit police to searches by hash values, file names and download folders would be to provide a roadmap for concealment of files containing child pornography. The search of the Internet history was also justified. More than one person had access to the IP address and it was necessary for the police to determine which of them was searching for child pornography.

The mandatory minimum six-month sentence for possession of child pornography would be grossly disproportionate in the following reasonable hypothetical circumstance: an 18-year-old's friend forwards him a sext from the friend's 17-year-old girlfriend without her knowledge, and the 18-year-old keeps the sext on his phone but does not forward it. The mandatory minimum sentence violates s. 12 of the Charter. The Crown acknowledged that the violation could not be justified under s. 1 of the Charter. The mandatory minimum sentence was of no force or effect. However, the mandatory minimum sentence was entirely unnecessary as deterrence and denunciation are the primary sentencing principles in relation to child pornography offences.

The accused's ten-month sentence was nevertheless fit. While the accused was remorseful and had made significant efforts at rehabilitation, he possessed 89 unique videos and 50 unique images of very young children being subjected to anal and vaginal penetration. The sentence was proportionate to the gravity of the offence and the accused's degree of responsibility without regard to the mandatory minimum and, but for his considerable efforts at rehabilitation, could have been much higher.

Cases Referred To

Statutes Referred To

Appeal Information

APPEAL from the conviction entered by Woollcombe J., [2016] O.J. No. 7287 (S.C.J.) and from the sentence, [2017] O.J. No. 651, 2017 ONSC 810 (S.C.J.).

Counsel:

Gerald Chan, Stephen Aylward and Janani Shanmuganathan, for appellant
Joan Barrett, for respondent

The judgment of the court was delivered by

Judgment

[1] Introduction

PARDU J.A.: — The appellant appeals from both conviction and sentence on charges of possession of child pornography. He submits that the trial judge erred by failing to exclude the evidence of child pornography found on a computer used by him, on the ground that the search of the device was unreasonably invasive, and therefore amounted to an unreasonable search contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

[2] Sentence Appeal Grounds

As to sentence, he submits that the six-month mandatory minimum sentence for possession of child pornography in force at the time of his offences¹ violates s. 12 of the Charter, and that in any event the ten-month sentence of imprisonment (less 60 days' credit for time spent on house arrest) imposed by the trial judge was unfit with or without the mandatory minimum.

Background

[3] Initial Police Investigation

In April 2014, Detective Constable Spence of the Halton Regional Police Internet Child Exploitation Unit learned that an Internet Protocol ("IP") address in Halton was associated with 174 files believed to contain child pornography. Spence determined from the hash values of the 174 files that seven of the files were videos containing child pornography. A hash value is a unique identification number assigned to a file that functions like a fingerprint for a file. Police maintain a database of the hash values of known child pornography. The other 167 files had names typically associated with child pornography.

[4] Subscriber Information

Spence asked the Internet service provider for the name and address of the subscriber assigned to the IP address. He learned that the subscriber was the appellant's father and that the municipal address was for a residence in Oakville. The appellant lived in this home as well as his sister.

[5] Search Warrant Application

Spence applied for a warrant to search the residence and any computer system found in the home. He indicated in the information to obtain a search warrant that police would try to minimize the scope of the computer search. Specifically, with respect to the scope of the proposed search, he stated:

The computer forensic examination will be conducted by the qualified technicians of the Halton Police Technological Crimes Unit. The examination involves the creation of a complete mirror image of the data stored on the devices. I know from my training and experience that this type of examination can take several weeks to complete.

Attempts will be made to focus and minimize the scope of the forensic examination for the above described data. However, for several reasons, a thorough examination of the entire data contained in the items will need to be undertaken to locate the sought data.

Firstly, computer searches need to be relatively broad in order to cope with the practical realities of an ever-changing and developing age of technology. Analysts must be able to adapt their investigation to the systems they discover. New or unanticipated techniques may be required to respond to new technological challenges. Ultimately, it is not feasible to envisage every type of data that would fall under the specified categories.

[Secondly], computer files can be disguised in any number of ingenious ways, the simplest of which is to give files a misleading name (pesto.recipe in lieu of blackmail.photos) or a false extension (.doc in lieu of .jpg or .gz); therefore, files names alone are not necessarily indicative of their content. Accordingly, an expansive search of the entire data content of the items will need to be undertaken to locate the relevant data.

It is intended that the forensic analysis will include:

on-site previewing of the data contained in located devices

removal of found devices to a forensically secure facility for subsequent examination

imaging / mirroring of the entire contents of the devices for the preservation of data integrity

broad previewing of seemingly irrelevant data for the purpose of locating relevant data

[6] Search Warrant Terms

The search warrant was issued on May 21, 2014 and contained the following terms:

Once seized, [computer systems and data storage devices] will undergo a computer forensic examination. The examination and analysis will be based on the offences set out in this warrant and will [be] conducted in relation to the following data:

Data relating to child pornography as defined by the Criminal Code

Data relating to the Gnutella 2 Peer to Peer Network

Data relating to use, ownership and access of the seized items

Data relating to the configuration of the seized items

[7] Warrant Execution and On-Site Preview

Police executed the warrant the next day. They found a computer in the appellant's bedroom. Detective Constable Mazzuto, an officer with technical expertise, conducted an on-site preview of that computer. He found files with titles associated with child pornography, but he did not view any actual pictures or videos of child pornography during the course of his preliminary review. Mazzuto also found evidence of a peer-to-peer file sharing program, although it had been deleted. The police seized the computer.

[8] Pre-Categorization of Files

Several months later, police conducted a more extensive examination of the seized computer. Mazzuto began the process by copying all of the data on the computer's hard drive. He then conducted a "pre-categorization" of all the images and videos that were on the hard drive and identified files bearing the hash values of known child pornography. He provided the results of this "pre-categorization" to Spence.

[9] Initial Examination of Pre-Categorized Files

Spence examined the pre-categorized files and determined that there were 50 unique images of child pornography on the appellant's computer.

[10] Appellant's Objection

The appellant takes no objection to this step, but says the next steps taken by the officer went too far.

[11] Systematic Examination of All Images and Videos

First, Spence systematically examined every image and video located on the hard drive. He ultimately found 89 unique videos containing child pornography. Forty-nine of these videos were found in the incomplete download folder of the peer-to-peer file sharing program the appellant was using. Spence testified that he could not have narrowed his search by searching by hash values alone, because if even one pixel in an image had been changed, the hash value would be different. According to his sworn statement in the ITO, he could not have relied on file names because a title given to a file by a user might not be reflective of the content of the file.

[12] Internet Search History Review

Second, Spence reviewed the computer's Internet search history. It demonstrated that the user was searching for child pornography. The fact that the appellant's e-mail account was accessed relatively close in time to when files with names suggestive of child pornography were opened suggested that the appellant was the person searching for and viewing the child pornography.

[13] Incidental Information Discovered

In the course of his review of each image and video on the computer, as well as the computer's Internet search history, Spence learned of information about the appellant that was unrelated to child pornography, such as his interest in computer games and in Star Trek. However, Spence did not look at documents or other personal information unconnected to his search for images and videos of child pornography and his attempts to identify the person responsible.

[14] Final Tally

Spence ultimately determined that there were 50 unique images and 89 unique videos amounting to child pornography stored on the appellant's computer.

The Trial Judge's Decision

[15] Charter Breach — Subscriber Information

At trial, the Crown acknowledged that the warrantless request for subscriber information was a Charter breach. The request for that information was made six weeks before the Supreme Court of Canada released its decision in R. v. Spencer, 2014 SCC 43, holding that there is a reasonable expectation of privacy in this information. In these circumstances, the trial judge found this breach to be less serious and determined that it did not require the exclusion of evidence.

[16] Reasonableness of Computer Search

The trial judge rejected the appellant's argument that the manner in which police searched his computer was unreasonable. She adopted the test described by Cromwell J. in R. v. Vu, 2013 SCC 60, at para. 22, that a reasonable search is "no more intrusive than is reasonably necessary to achieve its objectives" and concluded [at para. 73] that she was not satisfied that police "would or should have had the ability to narrow the scope of their search of the computer in this case".

[17] Appellant's Argument on Appeal

The appellant submits that the trial judge conflated the difficulty of imposing pre-search protocols with an after-the-fact assessment of whether the search was unreasonably conducted. A search may still be conducted in an unreasonable manner even if authorized by a search warrant.

[18] Trial Judge's Reasoning

The appellant points to paras. 72 and 73 of the trial judge's reasons to support this argument:

But, the Supreme Court of Canada has recognized that it is very difficult to impose effective limits, in advance, on the search of a computer. As Cromwell J. stated at para. 57 of Vu, at the point at which police are seeking a warrant and the issuing justice is considering imposing parameters on the search to be conducted,

57 . . . an authorizing justice is unlikely to be able to predict, in advance, the kinds of investigative techniques that police can and should employ in a given search or foresee the challenges that will present themselves once police begin their search. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice's decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change.

In my view, this was a case in which it was appropriate not to place limits on the scope of the police search for evidence of the offences. The ITO explained the very broad search that was to be conducted and the police were authorized to do this. There is no evidence before me that the police would or should have had the ability to narrow the scope of their search of the computer in this case.

Analysis

[19] Interpretation of Trial Judge's Reasons

The trial judge discussed both advance restrictions on computer searches and the reasonableness of the manner of search. Reading her reasons as a whole, I interpret her reasons as a conclusion that the manner of search here was reasonable. I agree with that conclusion.

[20] Reasonableness of Examining All Images and Videos

Where a user has some child pornography on his or her computer, identified by the search methods used initially by police here, it is not unreasonable to look at the other image and video files on the computer to see if there is more child pornography there. Searching by hash value would only uncover known examples of child pornography already in the police database and would also miss any of those known examples if the hash value had been changed in any way, whether intentionally or not. A search that relied on the name attached to a file might not uncover further child pornography files as a user could attach any name he or she wished to an image or video or folder and that name might not be indicative of its content.

[21] Examination of Internet Search History

Given this context, it was reasonable for police to look at all image and video files when they were looking for images and videos of child pornography. It was also reasonable for them to examine the Internet search history and the dates and times of access to the appellant's Internet accounts to identify the person searching for child pornography. Here, in addition to the appellant, three other persons were potential users of the computer, namely, the appellant's father (the owner of the home and the subscriber assigned to the IP address), his sister (who had a user profile on the computer) and his sister's boyfriend (who visited the home).

[22] Tailoring of Search

Moreover, there is no evidence that the police looked at documents, banking records or other programs or files unrelated to the search for child pornography and the identity of the person in possession of that material. The search was appropriately tailored to the type of evidence being sought and the offences being alleged.

[23] Focus on Type of Evidence

As this court noted in R. v. Jones, 2011 ONCA 632, at paras. 43-44:

The focus on the type of evidence being sought, as opposed to the type of files that may be examined is helpful, it seems to me, particularly in cases where it may be necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged.

To the extent they are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking.

[24] No Prior Evidence of Concealment Required

I do not accept the argument that there must be prior evidence of concealment of incriminating evidence before police can look at all images and videos stored on a computer in this kind of investigation where some child pornography has been located on the computer on initial examination. Rather, a search of all images and videos is appropriate in an investigation like this precisely to determine whether there is more child pornography on the computer. To limit police to searches by hash values, file names and download folders would be to provide a roadmap for concealment of files containing child pornography.

[25] Date Range Limitation Not Required

I also do not accept the argument that the search was overbroad because it was not tailored to a date range in terms of the files searched. Here the police were looking for images and videos of child pornography and evidence that might show who was responsible for that content. This was not a broad search of multiple devices or large amounts of data unrelated to the specific investigation, such as in R. v. Sop, 2014 ONSC 4610, at paras. 116-149; or R. v. Marek, 2016 ABQB 18, at paras. 120-147.

[26] Hindsight Not to Be Used

Finally, I reject the argument that the search of all images and videos here was overly invasive because the vast majority of the offending material would have been located using a combination of hash value comparison, keyword searching of file name and searching the file folders most likely to contain child pornography. This argument fails because it uses the ultimate results or fruits of the search to dictate whether the scope of the search was reasonable. Given the limitations of searching only by hash value or file or folder name discussed above, hindsight should not be used in this way to turn what was once a reasonable search in all the circumstances into an unreasonable one.

[27] Spencer Breach

The appellant does not argue that the evidence should be excluded based on the Spencer breach alone. I agree with the trial judge's conclusion that that breach does not justify exclusion of the fruits of the search of the computer under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Mandatory Minimum Sentence

[28] Analytical Framework

I need not repeat the analytical framework I summarized in R. v. Morrison, 2017 ONCA 582, at para. 115, leave to appeal to S.C.C. granted [2017] S.C.C.A. No. 290, appeal heard and reserved May 24, 2018, for determining whether a mandatory minimum sentence violates s. 12 of the Charter.

[29] Reasonable Hypotheticals

The appellant does not argue that the mandatory minimum sentence would be grossly disproportionate if applied to him, but argues that application of the mandatory minimum leads to grossly disproportionate sentences when applied to reasonable hypothetical situations like the following:

An 18-year-old who receives and keeps a "sext" from his 17-year-old girlfriend on his phone. The "sext" is a "selfie" of the girlfriend.
An 18-year-old who receives a "sext" from his 17-year-old boyfriend. The "sext" is a 30-second video the 17-year-old secretly recorded of the pair engaged in consensual sexual activity.
An 18-year-old whose friend forwards him a "sext" from the friend's 17-year-old girlfriend without her knowledge. The 18-year-old doesn't forward the "sext" but keeps it on his phone.

[30] Definition of "Sext"

The appellant defines "sext" as a sexually suggestive digital image, video or text message transmitted by cellphone or the Internet.

[31] Pervasiveness of Sexting

The appellant submits that these are not far-fetched or remote hypothetical examples given the pervasiveness of "sexting" among adolescents.

[32] Logical Inconsistency

The appellant points out that it is illogical for the law to recognize a 17-year-old's choice to have sexual relations with an 18-year-old partner, and to record images of him -- or herself for his or her own personal use, but to then impose a mandatory six-month jail sentence on the 18-year-old partner for possessing the same images sent to him or her by the 17-year-old. Equally, the appellant submits that to send an 18-year-old to jail for six months for failing to delete a sexually suggestive, unsolicited image on his cellphone of a friend's 17-year-old girlfriend would be grossly disproportionate.

[33] Crown's Position

The Crown does not take issue with the reasonableness of the hypotheticals advanced by the appellant. The Crown submits in its factum that the three hypotheticals posited by the appellant "come remarkably close to falling within the exceptions carved out in Sharpe for self-expression" but does not suggest that the conduct embodied in the hypotheticals advanced would not attract criminal liability. The Crown submits that the application of the mandatory minimum to these hypothetical offenders is not so excessive as to outrage standards of decency or to be intolerable or abhorrent to society.

[34] Sharpe Exceptions

In R. v. Sharpe, 2001 SCC 2, at para. 105, McLachlin C.J.C. for the majority of the court held that the criminal prohibitions on possession of child pornography went too far by criminalizing possession of materials that arguably posed little or no risk to children, and in a manner that seriously affected freedom of expression. The majority granted a remedy by reading in an exception to the prohibition for the following:

self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and
private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use (para. 115).

[35] First Hypothetical — Self-Created Exception

None of the hypotheticals advanced by the appellant would fall within the first exception, as none of these involve materials created by the accused alone, and held by him or her alone.

[36] Second Hypothetical — Private Use Exception

The majority in Sharpe described the second exception (the "private use exception") as follows, at para. 116:

The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law's purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.

[37] First Two Hypotheticals — Arguable Application

It may be arguable whether the conduct described in the first two reasonable hypotheticals comes within the private use exception. For example, in the first hypothetical, the exception would have applied had the 18-year-old taken the photo that formed the "sext". Instead, it was a "selfie".² In the second hypothetical, the exception would have applied had the 18-year-old consented to being recorded. Instead, he was a victim of the surreptitious recording.

[38] Third Hypothetical — No Private Use Exception

For purposes of my analysis here, I need not definitively decide whether the first and second hypotheticals fall within the private use exception or whether they are instead on the fringes of criminal responsibility. It is clear that the private use exception cannot apply to the third hypothetical (18-year-old who fails to delete a "sext" from a friend's 17-year-old girlfriend that was sent to him without her knowledge).

[39] Gross Disproportionality — Third Hypothetical

I am of the view that the application of the mandatory minimum sentence to the offender in the third hypothetical is grossly disproportionate. Most members of the community would consider a six-month jail sentence a substantial interference with individual liberty and would find it intolerable that such a punishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult).

[40] Charter Violation

Accordingly, I am of the view that the mandatory minimum sentence is grossly disproportionate at least in relation to the offender in the third reasonable hypothetical, violates s. 12 of the Charter and must therefore be struck down. The Crown acknowledges that the Charter violation cannot be saved by s. 1 of the Charter.

[41] Mandatory Minimum Unnecessary

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16. In another recent decision, R. v. S. (J.), 2018 ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse and distribution of that material.

Sentence Appeal

[42] Sentence Imposed

The appellant was sentenced to ten months' jail less 60 days' credit to reflect conditions of house arrest. He spent an additional 24 days in custody before being released on bail pending appeal.

[43] Appellant's Submissions on Sentence

The appellant submits that the trial judge is owed no deference if the mandatory minimum is struck down, arguing that the mandatory minimum created an inflationary effect on the sentence. The appellant submits that a 90-day sentence would be appropriate, and asks this court to substitute a sentence of time served.

[44] Mitigating Factors

The appellant was 29 years old at the time of the offence and 31 years old at the time of sentencing. He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant is employed and is continuing counselling. He is remorseful, and no risk factors have been identified requiring further treatment.

[45] Aggravating Factors

Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, 2012 ONSC 218, at para. 57, Ratushny J. pointed out that

It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.

[46] Rehabilitation Efforts

But for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher.

[47] Fitness of Sentence

The sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender without regard to the mandatory minimum. I would dismiss the appeal from sentence.

Disposition

[48] Final Order

I would dismiss the appeal from conviction, grant leave to appeal from sentence, declare that the mandatory six-month minimum sentence under s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C-46, in force from August 9, 2012 to July 16, 2015, is of no force and effect, but dismiss the appeal from sentence.

Appeal dismissed.

Notes

¹ On July 17, 2015, the mandatory minimum sentence for these offences was increased to one year in jail: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2).

² I pause here to note that a trial court in another province has concluded that, when interpreted purposively, the private use exception should apply to the "A records A for B" scenario: see R. v. Keough, 2011 ABQB 48, at paras. 273-277.

End of Document