WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:
486.4 (3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 Offence. — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Thomas Reeves
Before: Justice A.L. Guay
Decision on Charter Application, released on November 30, 2015
Counsel:
- Colleen Hepburn, counsel for the Crown
- Bradley Greenshields, counsel for the defendant Thomas Reeves
GUAY J.:
Charges and Application
1Thomas Reeves is charged with possessing child pornography contrary to section 163.1(4) of the Criminal Code in the period between May 1, 2011 and October 22, 2012. He is also charged with accessing child pornography contrary to section 163.1(4.1) of the Code on 2 occasions, namely October 7, 2012 and October 19, 2000. The matter is scheduled for trial in early November 2015.
2Thomas Reeves alleges that his section 8 Charter rights have been violated and has asked the court to make a finding that this is so and, in consequence thereof, exclude the computer-related evidence against him, pursuant to subsection 24(2) of the Canadian Charter of Rights and Freedoms.
3On October 22, 2011, Thomas Reeves' common-law spouse of 20 years, Nicole Gravelle, called his probation officer, Erin Olesen-Schenke, to tell her that she wanted to withdraw her consent permitting him to have contact with her. She told the probation officer that she believed he was abusing alcohol and accessing child pornography on the Internet.
The Voir Dire Evidence
Evidence of Erin Olensen-Schenke
4Thomas Reeves' probation officer testified that on the morning of October 22, 2011, she received a call from Nicole Gravelle, Thomas Reeve's spouse, telling her that she wished to withdraw her consent to his access to her. She recounted how, shortly after Nicole Gravelle's call, she received another call, this time from Nicole Gravelle's sister, Natalie Gravelle, also telling her that she believed Thomas Reeves, her brother-in-law, had been accessing child pornography over the Internet. She related to the probation officer how she had seen videos of children involved in sex on a computer used by Thomas Reeves located in her sister's home. According to Erin Oleson-Schenke, Natalie Gravelle further informed her how Thomas Reeves' brother had attended at her sister's home where the computer was located in order to erase material on the computer. The witness testified how these calls caused her to call the Crown Attorney's Office to inform them about what had been disclosed to her that morning, October 22, 2012. The probation officer testified that she believed Thomas Reeves was in custody and that he was to appear in court that day for a bail hearing. Given that Cst. Santi of the Greater Sudbury Police Service attended at the Reeves–Gravelle residence a few hours later that day, it is clear that the information provided to the probation officer and by her to the Crown Attorney's Office had eventually been communicated by that Office to the Greater Sudbury Police Service.
Natalie Gravelle's Evidence
5That Natalie Gravelle intensely disliked her brother-in-law, Thomas Reeves, was apparent from her evidence. She testified that in 2011, she had spoken to her sister Nicole about pornographic material she said she had found on the family computer while residing with her, Thomas Reeves and their two teenage daughters. The computer, she explained, was password-protected; the password was available to both Thomas Reeves and her sister. This suggests that either Natalie Gravelle had been able to access Thomas Reeves' files located in that computer by obtaining the password from her sister or that the computer had been left open at a time or times when she had an opportunity to log on and access its files. The computer was, she stated, "left open" and "I logged on."
6Natalie Gravelle's concern about the child pornography she claimed to have discovered on the computer arose from the fact that the couple's teenage daughters and their friends spent time around the pool in the home's backyard and, consequently in the home itself. According to Natalie Gravelle, she had notified the Greater Sudbury Police Service in May 2011 about what she had discovered, but they took no action with respect to her complaint.
7While the history of Natalie Gravelle's relationship with Thomas Reeves was not fully disclosed, there was evidence of an altercation which occurred on June 2, 2011, involving her, her sister Nicole and Thomas Reeves. This altercation ultimately led to his incarceration and a "no contact" order with respect to both herself and Nicole. Pursuant to the criminal court order, Thomas Reeves was not to be in the family home unless Nicole gave her prior, written, revocable consent permitting him to do so and Natalie Gravelle was not present there. Natalie Gravelle, in fact, left the home some time later that summer to reside with her boyfriend. Based on what she had seen of Thomas Reeve's files and his computer use history as well as her personal experience with him, it is clear that the hostility between Natalie Gravelle and her brother-in-law gave rise to a possible motive on her part to exaggerate what she alleged she had found on the computer and use that information to get even with him.
8While Natalie Gravelle ceased to reside in the Reeves–Gravelle home in 2011, she continued to visit her sister and nieces there and access the family computer in which Thomas Reeves' files and computer use history were located. It was therefore not surprising that she further investigated the content of Thomas Reeves' files between June 2, 2011 and October 22, 2013, at times when she had an opportunity to do so while visiting with her sister and her nieces. It is equally not surprising that when her sister Nicole moved to rescind her consent permitting Thomas Reeves' access to herself, she again raised the issue of the presence of pornographic material on the home computer. The history of Thomas Reeves' relationship with Natalie Gravelle is important for reasons which will later become clear.
Nicole Gravelle's Evidence
9Nicole Gravelle's evidence corroborated that of her sister Natalie with respect to accessibility to the family computer located in the home's basement recreation area. According to Nicole Gravelle, the password for accessing the computer was "General" or something equally simple. According to Nicole, access to the computer was available to anyone who wanted to use it. The computer's use was not, she testified, monitored and the computer was used by everyone in the home, including the girls and their friends. This evidence is difficult to accept because if the material that Thomas Reeves had in his files did contain child pornography, his teenage children or their friends would most likely have accessed it and complained about it to Nicole Gravelle or to her sister, Natalie Gravelle. The absence of any evidence indicating that this occurred leads to the reasonable inference that not all of the computer's files were available to anyone either living in the home or visiting it from time to time.
10Nicole Gravelle testified that she did not recall speaking to the police about child pornography on the home computer in May 2011. She stated that Cst. Kevin Santi arrived at her home without notice on October 22, 2011, not long after she had informed Thomas Reeves' probation officer about her wish to terminate his access to herself and about her concerns with respect to the presence of child pornography on the home computer. What she actually saw when viewing the material on that computer is unclear. When asked or when relating what she had seen, Nicole Gravelle said that she had seen "nothing except names", and "not pictures", and that she just "read random names".
Constable Santi's Evidence
11While the evidence is unclear about what exactly transpired once the police gained access to the Reeves–Gravelle residence, it appears that Cst. Santi sat around the kitchen table with Nicole Gravelle and, later, if not immediately, her sister. It was clear from the start that Cst. Santi, and possibly a partner, had come to the residence to pick up a computer with alleged child pornographic material in it. This is what Cst. Santi told Nicole Gravelle was the reason for his attendance at her home. It is quite clear that police access to the Reeves-Gravelle residence was consented to by Nicole Gravelle and further that she was asked by Cst. Santi to sign a consent authorizing the removal of that computer and more specifically, its hard drive (the computer tower) from the home. The evidence suggests that while Nicole Gravelle was later angry at the police for not returning the computer to her within a promised 90-day period, she voluntarily signed the police consent. While she testified that she did so because she believed that the police were asking her to do so and she really had no choice, Cst. Santi was reasonable in his belief that she understood what was happening and agreed to it. The need for the consent and an explanation of the document's contents was clearly explained to Nicole Gravelle by Cst. Santi. It is not clear whether Cst. Santi sent Nicole Gravelle downstairs to the basement recreation area of the home to get the HP 8000 C computer tower or whether he went down there to get it himself. He testified that he asked her to get it while Nicole Gravelle, in her testimony, stated that he was the one who went downstairs to get it. In any event, Cst. Santi testified that he obtained her consent to remove the computer first and then he got possession of it. Clearly, the concern on his part would have been not to conduct an unconsented search of a private residence without a warrant and not to seize the computer or its hard drive prior to obtaining a consent from someone having a proprietary interest in it. The question of who actually retrieved the computer hard drive does not, in my view, have much bearing on whether a search of the Reeves-Gravelle residence was conducted, considering that the officer's entry into a private residence without the consent of both owners or occupants constituted a search of those premises for section 8 Charter purposes.
12In his evidence, Cst. Santi indicated that he attended alone at the Reeves–Gravelle residence in response to Probation Officer Erin Olen-Schenke's information suggesting the presence of child pornography on a computer used by Thomas Reeves located in that residence and further indicating that Thomas Reeves' brother had recently come to the residence to wipe clean some if not all of Thomas Reeves' files contained within it. Cst. Santi testified that he had explained to Nicole Gravelle the need to surrender the computer to the police and the requirement that this be done voluntarily. He recalled Natalie Gravelle being present, even though Natalie Gravelle did not. Cst. Santi testified that he had been dispatched to investigate a Criminal Code offence occurring at the Reeves-Gravelle residence and that he had not gone there simply to seize the computer. He stated that once both Nicole Gravelle and Natalie Gravelle had completed Statements of Fact, he concluded that there were reasonable and probable grounds to believe that an offense had been committed. He further stated that he was unaware that Thomas Reeves had been detained and that did not recall asking Nicole Gravelle where he was. He also said that while he was aware of the high expectation of privacy in personal computers, he was unaware of case law with respect to the necessity for third-party consent to the waiver of constitutional rights in Canada. Lastly, but not unimportantly, Cst. Santi testified that he had not made a Report before a justice pursuant to section 489.1 of the Criminal Code. While, he maintained, this was his usual practice, he admitted that he had failed to do so in this case. When asked "Why not?", Cst. Santi indicated that he did not know why he had not done so.
13What happened, then, on October 22, 2012, was that acting on information received from Thomas Reeves' probation officer through the Crown's Office, a police officer was dispatched to his address on Falconbridge Rd. in Sudbury to retrieve a computer allegedly containing child pornography. While I accept Cst. Santi's testimony that his visit was investigatory in nature, the evidence makes it clearly obvious that he had received information that there was likely evidence of child pornography located within a computer located at the Reeves-Gravelle residence. The evidence indicates that Cst. Santi was alive to the reasonable expectation of a privacy issue with respect to that computer as well as Thomas Reeves' interest in the data contained within it. Cst. Santi spent approximately one hour and 45 minutes at the Reeves–Gravelle residence. He was quite careful not to make a mistake in his investigation and the evidence-gathering exercise he had been dispatched there to carry out. The probation officer, whose information had been relayed by the Crown's Office to the police, was clearly aware of Thomas Reeves' status on October 22, 2012, and knew that he was both detained and possibly facing a bail hearing that day. Given the nature of the information provided by the probation officer and her obvious sense of urgency about the preservation of that evidence, one cannot but fail to conclude that the information Cst. Santi received would most likely have made him aware that either Thomas Reeves was in custody or, at the very least, he was not present in the residence where the computer containing alleged child pornography was located. Given what Cst. Santi did not know about the waiver of Charter rights by a third-party and, in particular, that of a spouse, it would certainly have been a lot easier to secure immediate possession of the computer containing Thomas Reeves' files by going to his residence in his absence and immediately obtaining possession of the computer with that material located in it with the consent of his spouse. Considering that it was Nicole Gravelle herself who had initiated the complaint to Thomas Reeves' probation officer about the existence of child pornography in the home computer, it is doubtful that Cst. Santi would have anticipated her opposition to its removal from the residence.
The Charter and the Accused's Grounds for Relief
14Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure. The applicant, Thomas Reeves, argues that his section 8 Charter rights have been breached for the following reasons:
(1) Warrantless Search and Seizure
The Greater Sudbury Police Service carried out an illegal search and seizure of his computer on October 22, 2012. Thomas Reeves maintains that the search and seizure of his computer was warrantless and, therefore, presumptively illegal. He also maintains that its removal from his residence with only Nicole Gravelle's consent was illegal.
(2) Non-Compliance with Criminal Code Sections 489.1 and 490
The Greater Sudbury Police Service involved in the investigation of his case failed to comply with sections 489.1 and 490 of the Criminal Code, thereby rendering the detention of the HP Pavilion M 8000 computer tower from the home computer system with his files and personal information in it illegal. He maintains that the actions of the police in failing to comply with these sections of the Criminal Code has had the effect of depriving the court of its supervisory role with respect to his property and himself of the protection of his continuing privacy interest in that illegally detained property, contrary to section 8 of the Charter.
(3) Inadequate Information to Obtain Search Warrant
The information to obtain the search warrant granted on February 26, 2013 was inadequate to justify the granting of that search warrant and, consequently, the computer and any derivative information flowing from an examination of its contents ought to be excluded from the evidence against him at the trial of this matter.
Analysis
(1) The Warrantless Search and Third Party Consent
15In Collins v. The Queen (1987 CanLII 84 (SCC), 33 CCC(3d)1, the Court dealt with an alleged section 8 Charter violation in circumstances where the accused had been grabbed by the throat by a police officer to prevent her from swallowing a suspected bag of heroin which could be used in evidence against her on drug-related charges. That, however, turned out not to be the case and the Court overturned the convictions of the lower courts, ordering a new trial. Referring to its past jurisprudence, the Court reiterated the principle that once an accused has demonstrated both that he or she has a reasonable expectation of privacy in property seized by the police and there has been a warrantless search, the onus falls on the Crown to establish that the police had reasonable and probable grounds to carry out that search. In reviewing the criteria for determining whether a search was reasonable, the Court stated in R. v. Cole (2012 SCC 53 (CanLII), S.C.J. No. 53, File No.34268; 2012 S.C.R.34;353 D.L.R.(4th)447) that… "A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable". (para.37)
16In Collins, the arresting officer was found to have had only a suspicion that the accused was trying to dispose of evidence with respect to drug trafficking. The Court found that the officer did not have reasonable grounds upon which to justify her belief. The existence of reasonable and probable grounds to believe that an offence has or is being committed is a criteria for determining whether the search or seizure of potential evidence is lawful. This requirement was noted by the Supreme Court of Canada in Hunter v. Southam (1984 CanLII 33 (SCC), 14 CCC (3d) 97(SCC) -see pages 109-110; (1984) 2 S.C.R. 145) as constituting the minimum constitutional standard for authorizing state invasion of the reasonable expectation of privacy. It later received approval of the Court in R. v. Nolet ((2010) 1 S.C.R.851; (2010)S.C.J. No.24,Fil E No.;33032) and R. v. Cole (above).
17In the present case, there was no question that the investigating officer obtained Nicole Gravelle's permission to enter the residence she shared with Thomas Reeves, as well as her consent to remove the home computer's tower, hard drive. As noted earlier, having no warrant, the officer was cautious in his dealings with Nicole Gravelle who, from all appearances, seemed to understand why he was there and what he wanted. The officer was aware of the issue of reasonable expectation of privacy and it was clear that he had attended her residence for the purpose of obtaining the computer with respect to which Nicole Gravelle and her sister Natalie Gravelle had called Thomas Reeves' probation officer earlier that morning.
18The problem was, however, that Thomas Reeves, the other person with a reasonable expectation of privacy both in the home and its contents, including the home computer, was not present. He had been arrested the day before and, as earlier indicated, the officer would most likely have known that he was still in custody and likely to have a bail hearing later that day. The information about the bail hearing was communicated by Thomas Reeves' probation officer to the Crown Attorney's Office and in turn by the Crown's Office to the police. If the officer, Cst. Santi, did not know this fact, he clearly ought to have known it or at least asked Nicole Gravelle where her spouse was. Whether or not the officer knew that Thomas Reeves was in custody he was still under an obligation to exercise due diligence on the occasion of his warrantless search. He knew that it was Nicole Gravelle and her sister, Natalie, who had complained about the possible existence of child pornography on the family computer in the home Nicole Gravelle shared with Thomas Reeves. The police had a record of 22 calls for service to the Reeves-Gravelle residence on Falconbridge Road in the City of Greater Sudbury, the address to which the officer had proceeded to secure possession of the computer. Thomas Reeves had a record for assault and this would certainly have been information available to Cst. Santi when he was dispatched to his residence. What clearly the officer did not have and knew or ought to have known he did not have was Thomas Reeves' consent both to enter the private residence he shared with Nicole Gravelle and remove from it the home computer shared by Thomas Reeves with Nicole Gravelle and their two, teenage daughters.
19In R. v. Cole (above), the Supreme Court of Canada rejected the right of a third party to waive another's Charter rights. Days before the search and seizure at the Reeves-Gravelle residence took place, the Supreme Court of Canada handed down its decision. The Crown argued that a third-party could legally waive another's privacy rights under section 8 of the Charter. Alluding to the U.S. case of United States v. Matlock (415 U.S. 164,(1974) No.72-1355), the Court explained that Matlock was premised on the notion that "…third-party consent is justifiable because the individual voluntarily assumed the risk that his information would fall into the hands of law enforcement." At paragraphs 77-79, however, the Court declared:
Moreover, the doctrine of third-party consent is inconsistent with this Court's jurisprudence on first party consent. As Lacobucci J. explained in Borden, at p. 162, "In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right.
For consent to be valid, it must be both voluntary and informed. The adoption of a doctrine of third-party consent in this country would imply that the police could interfere with an individual's privacy interest on the basis of a consent that is not voluntarily given by the rights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice.
I would therefore reject the Crown's contention that a third-party could validly consent to a search or otherwise waive a constitutional protection on behalf of another.
20In the present case, the Crown argued that in seizing the applicant's home computer, the police acted in good faith, believing that with the consent of the accused's common law spouse alone, they could enter the Reeves–Gravelle residence and leave from there with a computer both partially owned and used by the applicant and his spouse. The flaw in the Crown's argument that the investigating officer made an honest mistake is that Cole was not based on entirely new law. There had been other cases where third-party consent to the waiver of Charter rights was rejected by the courts. The Greater Sudbury Police Service has a cyber-crime unit and the legal and technical experience that expectedly comes with it. It is certainly not unreasonable to expect of its officers that they will know 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. Like other members of society, the police are bound by the law and must, like other members of the public, comply with it. The law cannot be ignored or subjugated to either police ignorance of the law or mistake about the law, particularly when the consequences are often severe for those whose privacy interests had been breached.
(2) Non-Compliance with Sections 489.1 and 490 of the Criminal Code
21Once the police removed the computer from the Reeves-Gravelle residence on October 22, 2012, it was stored for more than four months at a police depot where property seized from individuals for investigative or evidentiary purposes is kept in the Sudbury area. Under section 489.1 of the Criminal Code, once property has been seized by the police, if it is to be retained, the police officer who seized it must make a Report to a justice as soon as practicable about the seizure. The justice must then either order the return of the property if the owner is known and it is not needed for investigative or legal purposes. In the event that the property is required for such purposes, the justice must order that the property be detained until it is no longer needed for such purposes. Under subsection 490(2), no property detained under subsection 490(1) shall be detained for longer than 90 days after the day on which it was seized, unless the justice is satisfied that it is still required for legal purposes or because proceedings have been instituted requiring the use of that property. Subsection 490(3) provides that no property shall be detained longer than one year from the date of seizure or after the application is made, unless the justice decides that a longer period of detention is justified.
22In R. v. Garcia–Machado (2015 ONCA, 2015, 569 Docket: C 58 506, August 8, 2015) the Court dealt with a motor vehicle collision in which the passengers were seriously injured. Pursuant to a search warrant, the police were able to obtain vials of the accused's blood and his hospital records from the hospital where they had been acquired following the accident. Notwithstanding section 489.1 of the Code, however, the officer who seized the vials of the accused's blood and his hospital records failed to report to a justice "as soon as practicable" as he was required to do by that section of the Code. The trial judge concluded that the officer's failure to do so had caused him to breach the accused's section 8 Charter rights. The trial judge ordered the exclusion of the blood evidence and the accused's hospital records and subsequently acquitted the accused.
23On appeal, the Court had to decide (1) whether the officer's failure to make the required Report "as soon as practicable" had breached the accused's section 8 Charter rights and, if so, (2) whether the trial judge had erred in excluding the impugned evidence under section 24(2) of the Charter. While the Court found that the police failure to comply with sections 489.1 and 490 of the Code had caused the accused's section 8 Charter rights to be breached, it nevertheless found that the blood evidence and the hospital records ought not to have been excluded. Speaking for the Court, Hoy, A.C.J.O., reviewed the supervisory scheme delineated in sections 489.1(1) and 490 of the Code. Acknowledging the high expectation of privacy provided to an individual's person and property under section 8 of the Charter, Hoy, A.C.J.O., cited S. Hutchison, author of Search and Seizure Law in Canada (Toronto: Carswell, 2005 at page 18 – 1), for the principle that ongoing detention of an individual's property must meet the same constitutional standard that the original seizure is measured against (see para 26).
24Noting that the trial judge had applied a Grant analysis (R. v. Grant, 2009 SCC 32, (2009); 2 S.C.R., 353 at para. 71) in determining whether or not to exclude the impugned evidence, the Court noted (paras. 28-33) how the trial judge had found the first Grant factor, the seriousness of the Charter–infringing state conduct, weighed heavily in favor of exclusion. Mindful that the police officer who seized vials of the accused's blood and his hospital records had not acted "dishonestly, in bad faith, or with willful or reckless disregard for the law", the trial judge, the Court stated, viewed the officer's conduct as "careless and negligent" and found the second Grant factor, the impact on the Charter-protected interest of the accused, also weighed in favor of exclusion of the evidence. Having done so, the trial judge concluded that the third Grant factor, society's interest in adjudication of a criminal charge on the merits, favoured admission of the evidence. Having weighed and balanced the three Grant factors, the trial judge decided to exclude the impugned evidence.
25Reviewing a number of its earlier decisions dealing with the scope of section 8 of the Charter, specifically R. v. Dore ((2002), 2002 CanLII 45006 (ON CA), 166 C.C.C. (3d)225), R. v. Colarusso ((1994)1 S.C.R .20) and R. v. Backhouse ((2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d)1), the Court concluded that police failure to comply with the requirements of sections 489.1(1) and 490 was contrary to section 8 of the Charter (para. 45). Speaking for the Court, Hoy, A.C.J.O. noted with respect to sections 489.1(1) and 490:
An individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in 489.1(1) to report to a Justice as soon as practicable plays a role in protecting privacy interests. The Constable's post-taking violation of s. 489.1(1) by failing to report to a Justice for more than 3 months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirements in s. 489.1(1) to report to a Justice as soon as practicable and reasonable.
26Going on to note that Collins (above), R. v. Caslake ((1998) 1998 CanLII 838 (SCC), 1 S.C.R. 51) and R. v. Backhouse (above) had established that to be reasonable, a seizure must be authorized by law and that if property was detained without complying with s. 489.1(1), "its continued detention is not authorized by law." "The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention" the Court declared, and, "Compliance with s. 489.1(1) is the gateway to all of these protections." (para. 55)
27Addressing the question of whether the trial judge had erred in excluding the blood and hospital records evidence pursuant to s. 24(2) of the Charter, the Court determined that the trial judge was indeed in error. Noting the standard of "considerable deference" on appeal, the Court explained that in situations where "relevant factors have been overlooked and disregarded, a fresh Grant analysis is both necessary and appropriate." (para. 57).
28The factors which the trial judge had "overlooked and disregarded" included, the Court indicated (paras. 60–66): (1) the trial judge's failure to expressly consider that the initial search had been authorized by a warrant (contrary to the present case); (2) Cole mandated the trial judge to consider the accused's reasonable expectation of privacy at the time of the breach (there being "a minimal residual privacy interest" in the blood sample and the hospital records; (3) the trial judge had not considered the seizure of the blood and hospital records was "specifically" authorized by warrant and used "for the precise purpose for which it was obtained"; (4) had the investigating officer who seized the evidence made the requisite report as soon as practicable, the justice of the peace would undoubtedly have ordered detention of the evidence ("the inevitability factor", the Court said); (5) the trial judge had not focused on the nature of the property at issue and that the respondent and not been deprived of the use or enjoyment of the seized property; (6) this was a case of "delayed compliance" as opposed to "complete noncompliance" and, (7) the impact of the breach with respect to the seized hospital records was even less than in the case of the blood samples. Weighing these factors, the Court found that the breaches which had occurred had had "no real impact on the respondent's Charter-protected interests". Because the evidence in question constituted a critical piece of the Crown's case involving an accident entailing serious injuries, the Court ruled that the evidence ought not to have been excluded.
(3) The Information to Obtain the Search Warrant
29A search warrant is presumed to be valid on its face. The burden of showing that it is not is on the accused. On February 26, 2013, a justice of the peace issued a search warrant with respect to the HP Pavilion Media Center 8100 NTPC computer (bearing serial number CN X7210 GSB) owned by Thomas Reeves and his common-law spouse, Nicole Gravelle. The applicant, Thomas Reeves, argued that the warrant ought not to have been granted.
30Relying on criteria outlined in R. v. Morelli ((2010)S.C.J. No. 8; (2010)1S.C.R.253; 2010 SCC 8 (CanLII), 252 C.C.C. (3d)273 -see paras. 31,39,40,41,44,45 and 58), the applicant insisted that the police had failed to establish the existence of reasonable and probable grounds justifying the granting of a search warrant. He pointed out that that the information to obtain the warrant (ITO) was insufficient for a number of reasons. These included (1) that the warrant was insufficient on its face; (2) that portions of the affidavit to obtain were misleading and inaccurate; (3) that portions of that affidavit were based on derivative evidence, which he insisted ought to be excised and; lastly; (4) that the justice of the peace who granted the warrant was deprived of material facts which, if known to him, would have persuaded him not to grant the warrant.
31The applicant pointed out the failure of the affiant to include material facts in the affidavit, leading to a false impression on the part of the justice. No mention was made, he stated, in the information to obtain about the June 2, 2011 incident which occurred at the Reeves–Gravelle residence. This incident led to charges of criminal assault against Thomas Reeves. As noted earlier, those charges, involving the accused, his common-law spouse, Nicole Gravelle, and, in particular, his sister-in-law, Natalie Gravelle, indicated a strong motive for prejudice on the part of Natalie Gravelle, in particular towards Thomas Reeves, and the possibility that Natalie Gravelle would either falsify or exaggerate claims of criminal wrongdoing against him.
32The applicant pointed out too that the affidavit to obtain indicated the police had received 22 calls for service from the Reeves–Gravelle residence at times when Natalie Gravelle resided there with him and her sister Nicole. While, the applicant maintained, both he and Nicole Gravelle were noted as persons involved in these referrals, no mention was made of the role played by Natalie Gravelle in any of these events. The applicant pointed out that in not one of these calls for service, did his spouse, Nicole Gravelle, or his sister-in-law, Natalie Gravelle, speak of a concern about the existence of child pornography on Thomas Reeves' computer files. As a result, the applicant questions the reliability of the complainants and their complaints, particularly in light of the lack of information in the affidavit concerning the long-standing history of hostility between the parties, particularly between himself and Natalie Gravelle.
33The applicant complained further about the vague nature of the allegations made by both his common-law spouse, Nicole Gravelle, and his sister-in-law, Natalie Gravelle, focusing his criticism of what they actually saw when they looked at his files and browser history on the family computer. He questioned whether it was indeed child pornography they saw, in particular Nicole Gravelle, or simply information leading them to suspect that because there were links on the computer to child pornography sites, the accused had either been downloading or accessing child pornography available on these sites. In her statement to the police, he noted, Natalie Gravelle had indicated that "we (her and her sister Nicole), pulled up about 20 to 30 movies about "13 on 13 gone wild" and about "children 12 years and up having sex". The information to obtain, the applicant argued, was wrong to suggest that Nicole Gravelle had actually seen child pornography in his computer files, arguing that some of what Nicole's sister had alleged had been morphed in the affidavit into an allegation that both she (Nicole) and Natalie had actually viewed child pornography in Thomas Reeves' files located in the home computer.
34The information to obtain, the applicant pointed out, suggested that he had been previously found guilty of sexually offending against children, whereas, as his record established, he was never convicted of sexual interference or assault but rather of simple assault on a charge of sexual assault or interference. The coupling of this allegation with the fact that there had been 22 calls for service to the Sudbury police from his residence was designed, he maintained, to create in the justice's mind the impression that he was sexually deviant.
35The applicant suggested that some of the information provided to the investigating police officer by Natalie Gravelle was more than 18 months old, having been provided in May 2011. Natalie Gravelle had, the applicant argued, offered no credible evidence that he had possessed or accessed child pornography after that time. The applicant queried how, on the basis of the information provided by the Gravelle sisters to the police, the affiant police officer, Det. Cst. Ramsay, and the justice of the peace who granted the warrant to search could have concluded that evidence of possession of child pornography could be found on the family computer's hard drive so long after it had been seen by the Gravelle sisters and wiped clean or formatted by the accused's brother around October 22, 2012.
36On the basis of criteria outlined in R. v. Morelli ((2010)SCJ No. 8; (2010) 2010 SCC 8 (CanLII), 1 SCR 253; 252 CCC(3d)273.) (see para.31,39,40,41,44,45 and 58), the applicant argued that the police had failed to establish the existence of reasonable and probable grounds to obtain a search warrant. Among these grounds were (1) the requirement that the deponent have reasonable and probable grounds to believe the information contained in the affidavit that the accused had possessed digital files of an illegal image and; (2) that evidence of such possession was to be found in the place to be searched. The applicant queried how, on the basis of the information provided by the Gravelle sisters to the police, the affiant police officer and the justice of the peace who granted the warrant could have concluded that the evidence of possession of the child pornography could still be found on the computer's hard drive after it had last been seen by the Gravelle sisters more than four months earlier and at that time been allegedly wiped clean or formatted by Thomas Reeve's brother.
37While I am not persuaded that all of the accused's criticisms with respect to the clarity and accuracy of the information contained in the information to obtain have merit, I note that 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. In Morelli, the Court stressed the obligation of an affiant preparing an information to obtain to make full and frank disclosure to the justice from whom the search warrant was requested. In doing so, the Court stated:
The informant's obligation is to present all material facts, favorable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. (paras. 58-59)
38I agree with the applicant that the affidavit to obtain in this case was "a goal–oriented, selective presentation of the facts" that resulted in "an unfair, unbalanced and misleading" portrayal of the applicant, thereby depriving the justice of the peace who granted the warrant of the objective, non-prejudicial information needed by him to conclude that there were reasonable and probable grounds for granting the warrant.
39Lastly, there is a latent concern that the granting of the warrant to search on February 26, 2013 did not appear to take into account that the home computer which was the object of the search had been held in police custody for more than four months without compliance with section 489.1 and 490 of the Criminal Code. The information to obtain does not explain why, if a search of the computer was in order, more than four months had been allowed to elapse from the time the computer was seized from the Reeves–Gravelle residence before a warrant was requested. This situation ought surely to have been in the mind of the granting justice who would or should have known that a section 489.1 Report had not been made to a justice "as soon as practicable" after the date on which the computer had been seized. Such a Report was finally made to the justice who granted the search warrant on March 15, 2013, 17 days after the warrant had been issued. The failure of the police to comply with the requirements of sections 489.1 and 490 of the Criminal Code must have been obvious to the justice who granted the warrant as being inconsistent with the applicable provisions of the Code and with existing jurisprudence. Warrants are the daily fare of justices of the peace. They receive training with respect to their judicial functions on a regular basis. The failure of the police in this case to comply with the provisions of the Code in such matters ought to have led the justice to have concerns about the merits of the application for a search warrant and the usefulness of such a warrant at the time he granted it. Coupled with the less obvious deficiencies in the information to obtain, it is arguable that the search warrant ought not to have been granted. The making of a Report pursuant to section 489.1 of the Code on March 15, 2013, 15 days after the search warrant had been executed, and more than four months after the computer had been seized from the Reeves-Gravelle residence strikes one as a poor attempt to cure or regularize a legal situation gone very much awry.
The "Grant" Analysis and the Section 24(2) Charter Remedy
40Having reviewed the evidence and the law with respect to the protection afforded by section 8 of the Charter, I have concluded that there was a clear denial of the accused's section 8 Charter rights to be protected against unreasonable search or seizure. First, the applicant's section 8 Charter rights were violated by a warrantless search and seizure of the home computer and the information contained within it. Given the circumstances in which this search and seizure were carried out, I find that there were little exigent reasons for carrying out a warrantless search. Secondly, to add to this unacceptable situation, I find that the police service charged with custody of the accused's property failed to comply with sections 489.1 and 490 of the Criminal Code. These provisions of the Code are specifically designed to provide an additional degree of protection to those afforded to Canadians by section 8 of the Charter against unreasonable search and seizure. As a result, not only were the accused's section 8 Charter rights violated but the court was deprived of its supervisory jurisdiction with respect to the accused's detained property in which he had a continuing reasonable expectation of privacy interest. Thirdly, I find that the information to obtain the search warrant granted on February 26, 2013, was insufficient to have justified the granting of a search warrant and that, consequently, one ought not to have been granted.
41The fact that a Charter breach has occurred does not, however, mean that the breach will automatically lead to the exclusion of the evidence obtained as a result of that breach. The methodology for judicially determining this issue has been set out in Grant (above). Grant called for a three-prong analysis to be used in determining whether or not to exclude evidence obtained as a result of a Charter breach. These included: (1) the seriousness of the Charter–infringing state conduct; (2) the impact of the breach on the Charter–protected interest of the accused and; (3) society's interests in the adjudication of criminal charges on the merits.
42In Garcia-Machado (above) the Ontario Court of Appeal cautioned trial judges that in carrying out their analyses, "relevant factors" must not be "overlooked or disregarded". In reversing the decision of the trial court in that matter, the Court outlined a number of "relevant factors" which it found the trial judge had "overlooked or disregarded". The Court found that the trial judge had overlooked the fact that the police officer who seized the impugned evidence had first obtained a warrant before securing possession of the vials of the accused's blood and his medical records. In the present case, there was no warrant. Recall here though the officer's evidence that he was fully aware of the expectation of privacy issue but not of the illegality of a third party (here the accused's common-law spouse) consenting to the search and seizure of the home computer from the applicant's private residence.
43The Court noted that in Cole (above), the trial judge had not turned his mind to "the respondent's reasonable expectation of privacy at the time of the breach". In Cole, the Court was dealing with a school computer to which the school's technologists had free access. In the present case, we are dealing with a computer jointly owned by Nicole Gravelle and Thomas Reeves. This computer was the principal component of their home's entertainment center. The computer was wholly owned by them and protected by a password available to them and, presumably, with their consent, to their teenage daughters and those who might visit the home and ask to use the computer. This computer was not a computer to which anybody had unrestricted access, even though Nicole Gravelle suggested this was so. Access to the computer was password protected, even if not strongly so.
44In Garcia-Machado, the Court next looked at the fact that the property seized was specifically designated and used for the precise purpose for which it had been obtained (para. 62). In the present case, the investigating police officer 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.
45The Court then addressed the failure of the officer to make a section 489.1 Report to a justice "as soon as practicable", finding that had he not been mistaken with respect to that requirement and that had he made a Report as set out in section 489.1 of the Code, he would probably have been granted an order permitting the police to retain the vials of the accused's blood and his hospital records for a 90-day period.
46In Garcia-Machado, the Court placed weight on the fact that the accused had not been "deprived of the use or enjoyment of the items" seized. (para 64) The Court compared the seizure of the blood samples and the hospital records with the seizure of a smart phone or a computer. The testimony of Nicole Gravelle, Thomas Reeves spouse, revealed how angry she was at being deprived of access to family pictures and personal information stored within the computer she had willingly consented to being removed from her and her spouse's residence. Needless to say, Thomas Reeves faced similar consequences with respect to the personal material he had in the computer.
47The Court next turned its mind to the nature of the case and whether it was one of complete non-compliance or one of delayed compliance. The Court found that it was dealing with a case of delayed compliance. The present case is clearly one of non-compliance, the degree of non-compliance being unexplainable. The Reeves–Gravelle home computer was kept in the police lockup for more than four months after it was seized with the permission of Nicole Gravelle. No Report was made by the police to a justice until March 15, 2013, 15 days after the search warrant granted on February 26, 2013 was executed. (i.e. February 28, 2013) This was clearly in direct conflict with the supervisory jurisdiction of the court with respect to the continuing property rights of Thomas Reeves under section 8 of the Charter.
48The last concern expressed by the Court in Garcia-Machado was that the trial judge had failed to avert to subsection 490(13) of the Code permitting the police or the prosecutor to make a copy of the applicant's hospital or other records before bringing such records before a justice or complying with an order that the records be returned, forfeited or otherwise dealt with under section 490. In the present case, the police were not legally permitted to view or make copies of the materials in the Reeves–Gravelle home computer. The applicant argued that in light of the fact the computer was illegally detained, it ought to be returned to him and his spouse without inspection, copying its contents or forwarding its hard drive to a forensic laboratory for analysis.
49In balancing the Grant factors, I find the Charter–infringing state conduct in this matter was serious and that it strongly calls for exclusion of all computer-generated evidence. I also find that the conduct of the state and its agents had a serious impact on the accused's Charter-protected interests. This too argues in favour of excluding the computer-generated evidence. Lastly, while I find that while the alleged offences are serious in nature and strongly call for adjudication on the merits, the flagrant disregard of the accused's section 8 Charter rights as well as the ancillary rights provided to him under sections 489.1 and 490 of the Criminal Code requires that the computer-generated evidence in this matter be excluded from the evidence. In so concluding, I have considered the Supreme Court of Canada's Court's memorable and instructive remarks in Morelli, where the Court noted:
In balancing these (i.e. the Grant factors) considerations, we are required by Grant to bear in mind the long-term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.
In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private place in the home on the basis of misleading, inaccurate, and incomplete informations upon which a search warrant was issued.
Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices. (paras. 108-111)
50While these remarks in Morelli focussed on the inadequacy of an information to obtain and the use of a warrant deriving from it, the principles enunciated are arguably applicable to the use of any illegally obtained evidence such as the evidence in the present case.
Conclusion
51While not quite a comedy of errors, this case is certainly a "how to not" conduct a criminal case. The offences complained of were initially brought to the attention of the police almost 18 months before the police finally acted on the information provided to them by Natalie Gravelle. Was it the fact that that the police had become somewhat incredulous about complaints emanating from the applicant's residence and the uproar frequently occurring there in the period leading up to May 2011 and therefore they did not take seriously Natalie Gravelle's complaints? Perhaps so. Unfortunately, when the police finally did act on October 22, 2012, they failed to comply with the law as embodied in the Criminal Code and section 8 of the Charter.
52While the non-compliance of the police in this case was largely not motivated by bad faith, it was certainly the result of not conducting their activities in accordance with established legal principles and procedures. These principles and procedures were known or ought to have been known to the local police cyber-crime unit. Had the police complied with the legal requirements which are and were in existence at the time the present charges arose, this matter would most likely have had a different outcome. Accused persons have, as do we all, Charter rights and other guarantees of rights and freedoms under the law. No one can be allowed to take advantage of the law, ignore the law or use ignorance of the law, whether on their part or on the part of others, to obtain what they want, whether it is evidence needed in a criminal proceeding or legal permission to do something authorized by the law.
53For the reasons above and taking into consideration the totality of the circumstances in this case, I grant Thomas 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.
Released: November 30, 2015
Justice A. L. Guay