WARNING The President of the panel hearing the appeal directs that the following should be attached to this file:
This appeal is subject to a publication ban pursuant to ss. 486.31 and 486.4 of the Criminal Code. The order prohibits the publication of any information that might tend to identify any victims, as well as publication of the name of Officer D.G.
Court of Appeal for Ontario
Date: 2024-06-06 Docket: C69514
Trotter, Harvison Young and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
Adam Dufresne Appellant
Counsel: Sayeh Hassan, for the appellant Owen Goddard, for the respondent
Heard: April 18, 2024
On appeal from the convictions entered by Justice Heather J. Williams of the Superior Court of Justice on June 5, 2018, and from the sentence imposed on August 9, 2019.
Reasons for Decision
1The appellant was convicted of a number of charges including sexual assault, sexual interference, child luring and possession and distribution of child pornography. He was initially charged with sexual assault, sexual interference and child luring in relation to one young complainant after her mother contacted the police and reported that her daughter had been talking to the appellant on Facebook and that the appellant had met up with her at a park and forcibly had anal sex with her.
2As a result of this complaint, a search warrant was issued to search the appellant’s home. Appendix A of the ITO for the warrant stated that police would search for electronic media and devices, documents relating to the appellant’s occupation of the home, and child pornography. Appendix B of the ITO set out the offences for which police had grounds to believe the search would afford evidence of. Appendix B did not list any child pornography offences.
3As a result of the search, a number of additional charges were laid with respect to two additional complainants as well as for the possession and distribution of child pornography.
4The appellant brought an application that, among other things, challenged the search warrant under s. 8 of the Charter. Although the trial judge found that the appellant’s s. 8 rights had been violated because the ITO did not provide reasonable and probable grounds to search for child pornography, she declined to exclude the evidence pursuant to s. 24(2) of the Charter.
5Prior to the hearing of the s. 8 application, two officers, Det. Pelletier and Officer D.G., brought applications to be excused from testifying due to their mental health. Det. Pelletier was the affiant of the ITO and Officer D.G. had directed the search on site. Both officers worked in the Internet Child Exploitation (“ICE”) unit of the Ottawa Police Service.
6The trial judge allowed Officer D.G.’s application to be excused.
7Although Det. Pelletier abandoned his application, the appellant brought an application seeking disclosure of his medical records and leave to cross-examine him on his mental health at the time he drafted the ITO. The trial judge dismissed this application.
8The appellant appeals from all three rulings.
9For the following reasons, the appeal is dismissed.
The Charter Motion
10The appellant challenged the search warrant under s. 8 of the Charter on the basis that it was misleading and overbroad. While he conceded that it authorized a search for evidence relating to the first complainant, he argued that its scope did not extend to cover searches for child pornography or for other complainants.
11Det. Pelletier did not list child pornography offences in Appendix B of the warrant. However, he stated in his affidavit that the appellant had a prior conviction for possession of child pornography. His affidavit also stated that in his experience, persons who lured children had the propensity to collect and preserve child pornography.
12The trial judge, citing R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, found that the latter statement was an example of prohibited propensity evidence because it required a logical leap between offender types, i.e., that the type of offender who commits child luring is the type of offender to commit child pornography offences. She found that there was no actual evidence in the ITO that there was any child pornography on the appellant’s computer. As such, she found that the appellant’s s. 8 rights were breached with respect to the searches for child pornography.
13As discussed below, she did not find a breach of the appellant’s s. 8 rights with respect to the searches for other complainants, as there was insufficient evidence to support this argument.
14The trial judge went on to conduct a s. 24(2) analysis, applying R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, to consider whether the evidence of child pornography should be excluded.
15With respect to the first Grant factor, the seriousness of the Charter-infringing state conduct, the trial judge found that this weighed slightly in favour of excluding the evidence. She found that Det. Pelletier’s propensity reasoning was based on an honestly held belief and was not an attempt to mislead. Det. Pelletier did not seem to appreciate the difference between the offences of child luring and child pornography. He testified that he considered sexually explicit text messages between an adult and a child to constitute child pornography.
16It was unclear why Det. Pelletier did not list child pornography offences in Appendix B. He could not recall why he had failed to do so. However, since the omission had the effect of weakening the warrant, the trial judge found that it was also not done in bad faith or intentionally.
17The parties agreed that the second Grant factor, the impact of the breach on the accused, weighed in favour of excluding the evidence. The trial judge found that it weighed heavily in favour of exclusion, since the search involved allegations of child pornography and the search of a personal computer.
18The parties also agreed that the third Grant factor, society’s interest in an adjudication on the merits, weighed in favour of admitting the evidence.
19In balancing these factors, the trial judge reviewed this court’s decision in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 59-64. She found that this case was one in which the pull of the third factor was particularly strong, in light of the reliability and importance of the evidence. She therefore found that the evidence should not be excluded.
20The appellant submits that the trial judge erred in her application of Grant, particularly in her finding that the first factor, the seriousness of the breach, favoured exclusion “only slightly”. He argues that the trial judge wrongly equated the lack of bad faith with the presence of good faith and that she did not address Det. Pelletier’s inability to recall his state of mind when drafting the ITO.
21We do not agree that the trial judge equated the absence of bad faith with good faith. She held that Det. Pelletier’s propensity reasoning was the result of a wrong but honestly held belief and that there was no intention to mislead. Furthermore, she found that while Det. Pelletier could not recall his state of mind at the time of drafting the ITO, his admissions during cross-examination about what he would have done weakened rather than strengthened the ITO.
22We see no basis for interfering with the trial judge’s decision on the s. 24(2) issue. She cited the relevant authorities and applied the relevant factors to the circumstances before her. Her decision is entitled to deference absent a failure to consider the proper factors or an unreasonable finding: R. v. Collins, 2023 ONCA 2, at para. 23; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.
Medical Records & Cross-Examination Application Regarding Det. Pelletier’s Mental Health
23At the beginning of the s. 8 application, the appellant sought leave to cross-examine Det. Pelletier on why child pornography had been included in the items to be searched for in Appendix A of the ITO, why child pornography was not a listed offence in Appendix B, and the basis for his claim that those involved in child luring offences have a propensity to collect child pornography.
24The trial judge granted leave to cross-examine in these areas. Before the testimony began, counsel appeared on behalf of Det. Pelletier and Officer D.G. seeking to have them excused from testifying pursuant to s. 700(2) of the Criminal Code on the grounds that both were suffering from mental health issues and that their conditions would be worsened if they were required to testify in the proceedings.
25Dr. Frey, a clinical psychologist who testified on the motion with respect to both officers, testified that he had not made a diagnosis of PTSD with respect to Det. Pelletier, but that the last time he had seen him, he had written a letter advising that he could not say Det. Pelletier was ready to work in the ICE unit.
26The appellant sought to expand the scope of his cross-examination of Det. Pelletier to include issues relating to his mental health. The trial judge rejected this request on the basis that there was no evidentiary basis to ask questions about PTSD and that it was speculative and conjecture to suggest that a person who had PTSD at the time of drafting an ITO is also a person who knowingly submitted an application for judicial authorization without the requisite grounds to do so.
27Det. Pelletier subsequently abandoned his application and he was cross-examined. He testified that he did not have a specific memory of drafting this particular ITO and could not remember what he was thinking at the time. He maintained, however, that in his experience, people who lure children have a propensity to collect child pornography. He testified that in his view, it was reasonable to infer that this was his position when he drafted the ITO but that he could not specifically recall this particular warrant.
28The appellant subsequently brought a third-party records application under s. 278 seeking production of all Det. Pelletier’s medical records relating to his mental health. The appellant’s position was that Det. Pelletier had put the issue of his mental health in issue by bringing the s. 700(2) application. He argued that the evidence would be highly probative of Det. Pelletier’s state of mind when he drafted the ITO and that this was especially important given Det. Pelletier’s testimony that he could not recall his state of mind at the time.
29The trial judge summarily dismissed this application on the basis that the medical records were not relevant to whether there was a basis upon which the Justice of the Peace could have granted the warrant, nor was Det. Pelletier’s mental health relevant to a s. 24(2) analysis.
30The appellant submits that the trial judge erred in not allowing the appellant to cross-examine Det. Pelletier on his mental health and in not allowing for the disclosure of the medical documents. He argues that this information was relevant and probative to whether Det. Pelletier had reasonable and probable grounds when drafting the ITO.
31We do not agree with the appellant’s position that the trial judge erred. Cross-examination of an affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood it will assist in determining whether the necessary grounds existed for the issuance of the search warrant: R. v. Green, 2015 ONCA 579, 22 C.R. (7th) 60, at para. 34. This is a discretionary decision entitled to deference absent a demonstration that the discretion was not exercised judicially: Green, at para. 52. In examining the warrant, as discussed above, the trial judge had already found that there were no reasonable and probable grounds to authorize a search for child pornography. Given the other evidence led on the voir dire, we see no basis for interfering with the trial judge’s determination on this issue.
The Exclusion of Officer D.G.’s Evidence
32The appellant submits that the trial judge erred in excusing Officer D.G. from testifying under s. 700(2). He argues that this impacted the s. 8 application because Officer D.G. could have explained what was searched for, who conducted the search and what was found.
33We do not find it necessary to consider whether the trial judge erred by excusing Officer D.G. We do not agree that Officer D.G.’s evidence would have impacted the s. 8 application, particularly since the appellant failed to lay the necessary evidentiary foundation on the s. 8 application.
34At the s. 8 application, the appellant argued that his right to make a full answer and defence and his right to a fair trial under s. 7 of the Charter were breached based on his inability to obtain Officer D.G.’s evidence. He argued this evidence would have advanced his s. 8 application.
35The trial judge dismissed this portion of the application. She accepted the Crown’s argument that the appellant had made no effort to take alternative steps to put officer D.G.’s evidence before the court. This could have been done in a number of ways, including calling another officer to testify as to the execution of the search, attempting to reach an agreed statement of facts on the execution of the search with the Crown, or bringing a hearsay application.
36The appellant also argued that his s. 8 rights were violated because the warrant did not contain reasonable and probable grounds to conduct any searches in relation to any additional complainants other than the initial complainant, and possibly the second complainant. The trial judge rejected this argument because there was no evidence before her with respect to any such searches, such as what was searched, who conducted the search, the justification for the search or what was found. She again referenced the appellant’s failure to attempt to call other witnesses who could testify to the searches or offering any other evidence.
37The trial judge dismissed the Charter applications “without prejudice to the applicant’s right to revive them on the basis of new trial evidence.” The appellant did not seek to re-open or re-argue any of the issues at trial when the Crown called the evidence of the additional searches that were conducted.
38We agree with the trial judge’s findings that the appellant could have offered other evidence that would have filled any alleged gaps resulting from the excusal of Officer D.G. but that he failed to do so. In particular, as the Crown points out, the appellant could have elicited evidence from Officer Villeneuve, the officer who conducted the forensic examination of the appellant’s devices, about the searches. While Officer Villeneuve testified at the trial, the appellant failed to adduce this evidence.
39Furthermore, we note that Officer D.G.’s evidence would only have related to the execution of the search and not the scope of the warrant which was the central issue in the s. 8 application. It is therefore not clear that Officer D.G.’s evidence would have affected the result of the application.
40In essence, the application was dismissed because the appellant had not laid the necessary evidentiary foundation. We see no reason to interfere with this conclusion.
41The appeal is dismissed.
“Gary Trotter J.A.”
“A. Harvison Young J.A.”
“J. Copeland J.A.”