ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— and —
KAREEM EL-HALFAWI
Before Justice John North
Reasons for Judgment released on September 1, 2021
Counsel: Cara Sweeny.............................................................................................. counsel for the Crown Boris Bytensky...................................................................................... counsel for the Applicant
NORTH J.:
INTRODUCTION
1In November 2018, police officers with the Toronto Police Service (TPS) obtained and executed a search warrant on the Applicant’s residence. The Applicant was the only person in his residence when the police arrived to execute the search warrant.
2A forensic examination of the contents of electronic devices seized by police from the Applicant’s residence revealed hundreds of videos and images that met the Criminal Code definition of child pornography. The Crown alleges that digital files containing child pornography were stored in the shared folders of two computers seized by the police. The Crown also alleges that the Applicant made these files available to users of a peer-to-peer (P2P) file sharing network. Anyone with an account on this P2P network could access and download these files.
3The Applicant is charged with one count of making available child pornography, two counts of possession of child pornography and two counts of accessing child pornography. To prove these charges, the Crown relies on the evidence that was seized by the police during the execution of the search warrant.
4Counsel for the Applicant argued that the Applicant’s rights under s. 8 and s. 10(b) of the Charter were violated by the police, and that all evidence seized by the police should be excluded under s. 24(2) of the Charter.
5Counsel for the Applicant raised five issues on this application.
6First, the Applicant’s counsel argued that the Applicant’s rights under s. 8 had been infringed by the automated gathering of digital information (and subsequent use of this information by the TPS) without judicial authorization. The automated software program and database (Child Protection System – “CPS”) used by police determined that a “GUID” connected to an IP addresses was associated to files suspected of being child pornography. [1]
7Second, counsel for the Applicant argued that the police violated the Applicant’s s. 8 rights by failing to obtain a “Feeney warrant” to arrest the Applicant inside his apartment. [2]
8Third, it was argued that the Applicant’s s. 10(b) rights had been violated because the Applicant’s first opportunity to speak with duty counsel occurred about 90 minutes after the Applicant asked to speak to duty counsel.
9Fourth, the Applicant’s counsel argued that the Applicant’s s. 10(b) rights had been violated when the officer-in-charge asked the Applicant questions prior to the Applicant being given a reasonable opportunity to speak with duty counsel (a “holding off” argument).
10Fifth, counsel for the Applicant argued that, based on the Charter violations, the evidence seized by the police should be excluded under s. 24(2).
11I previously dismissed the application to exclude the evidence, with reasons to follow. These are my reasons.
12I have concluded that the Applicant’s s. 10(b) rights were infringed when the officer-in-charge failed to hold off from asking the Applicant questions before the Applicant was given an opportunity to speak with duty counsel. I found no other Charter violations.
13I have concluded that the admission of the evidence would not bring the administration of justice into disrepute.
DIGITAL TERMINOLOGY
14The information contained in this section may be useful to understand my summary of the evidence and my reasons on the first issue.
Peer-to-Peer File Sharing Network (P2P)
15A “P2P” network allows users to share and download designated files directly from the computers of other users of that network: R. v. Spencer, 2014 SCC 43, 2014 2 SCR 212, at para. 7. P2P networks are commonly used to share videos, photographs and music.
16P2P networks do not have centralized servers. As Stribopoulos J. noted in R. v. Branco, 2019 ONSC 1026, at para. 30, “these systems could not function without individual users making the files located on their computers available for downloading by other users.”
17To use a P2P network to trade files, a person must have P2P software and an Internet connection. P2P software allows users to connect to each other to share files. Shareaza an example of software that can support P2P networks. It is alleged that the Applicant used Shareaza.
18P2P users “can only access and share files contained within their designated shared folder, and can only browse others’ shared folders, provided the browsing function is turned on and the source computer has a connection to the Internet. The browsing function can be turned on and off by the user”: R. v. Nguyen, 2017 ONSC 1341, at para. 26.
19Files contained in a shared folder of a P2P user’s computer are accessible to anyone participating in the P2P network. Files that are not in a shared folder are not accessible to others. Key word searches can be used by P2P users to find files that are located in the shared folders of other users.
20The content of a shared folder is controlled by the user of that computer. The computer’s user can remove files from a shared folder. P2P users who do not want to actively participate in the sharing of files on the P2P network can usually (depending on the P2P software) turn off the sharing feature.
21As long as a P2P network user has not opted out of file sharing, “anytime that user’s computer is turned on and also connected to the Internet, the files in the user’s shared folder will be available for downloading by other computer users connected to the file sharing network”: Branco, at para. 34.
22The identities of users of P2P networks are not apparent to other users.
ISP and IP
23An Internet Service Provider (ISP) is a company or organization that provides Internet communications and services to individuals, businesses, and organizations.
24An Internet Protocol (IP) address is a unique number that is assigned to each device on the Internet or a local network. IP addresses “can be tracked to Internet Service Providers (ISPs) who are able to determine which subscriber is assigned to an IP address at a specific date and time”: Nguyen, at para. 10.
Globally Unique Identifier (GUID)
25A GUID is a “unique alphanumeric reference code that is used as an identifier in P2P computer software. A unique GUID is generated every time that P2P software is downloaded to a computer”: Nguyen, at para. 11. Each installation or update of P2P software creates a new GUID.
Child Protection System (CPS)
26CPS is an automated secure Internet-based program and database used by law enforcement in over 95 countries. It assists law enforcement officers to “track and investigate peer to peer (P2P) trading of child pornography”: Nguyen, at para. 8.
27CPS identifies child pornography on P2P networks using a database of suspected child pornography videos and images. Each video and image has a “virtually unique” alphanumeric “hash value”, which identifies the contents of a digital file: Nguyen, at para. 9. The hash value is generated by applying a mathematical algorithm to a file, which assesses the contents of the file. Files that contain hash values that are associated to child pornography are designated as “notable”. Before a file is designated as “notable”, at least three law enforcement officers working with CPS must agree that the file contains child abuse material.
28CPS uses automated crawlers or bots to gather information over the Internet. Where suspected child pornography is located, CPS “logs the Internet Protocol (IP) address and the Global Unique Identifier (GUID) associated to the suspected child pornography”: Nguyen, at para. 9.
29CPS software “gathers only public information made available by the user sharing files over the network”: Frazier v. State, 180 So. 3d 1067 (Fla. 5th DCA 2015).
30CPS allows law enforcement officers to conduct searches based on a variety of information, including IP addresses and GUIDs. The information in the CPS database is organized in a way that allows law enforcement to target GUIDs that are downloading or making available a large number of files containing child pornography over a period of time.
31After CPS logs a GUID and IP address associated to a file containing suspected child pornography accessible on a P2P network, “it is for the specific investigative agencies throughout the world to determine if the images meet their local definition for child pornography. Once CPS locates GUIDs and IP addresses associated to child pornography, local investigators take over”: Nguyen, at para. 31. As D.C. Jodoin testified, “CPS is the starting point” in an investigation.
Shareaza LE
32Shareaza LE is software used by law enforcement (“LE” is a reference to “law enforcement”) to identify, access and download suspected child pornography contained in the designated shared folders of P2P users. Shareaza LE allows the police to efficiently find shared files on P2P networks that contain child pornography. Using Shareaza LE, a police officer can download files containing suspected child pornography connected to a GUID that has been identified by CPS. After reviewing these files, an officer will decide if they contain material that meets the definition of child pornography. Shareaza LE is “adapted to ensure that, while it can operate on a P2P network and download child pornography, it cannot upload images”: Nguyen, at para. 31.
EVIDENCE
33The Crown called Detective Constable Christopher Jodoin as a witness. [3] D.C. Jodoin is the officer-in-charge of this investigation and the affiant of the informations to obtain (ITOs) production orders and the search warrant.
34D.C. Jodoin has been a police officer with the TPS since 2002. He has been assigned to the Child Exploitation Section since 2014. D.C. Jodoin has been involved in hundreds of investigations of Internet child exploitation offences. For the last two years, D.C. Jodoin has been the lead instructor at the Canadian Police College on “peer-to-peer” file sharing investigations involving Shareaza LE and CPS.
35The investigation commenced in early 2018. D.C. Jodoin was looking for information from CPS regarding downloading (and “broadcasting downloads of”) suspected child abuse material. D.C. Jodoin obtained information from CPS about a number of local GUIDs of interest. D.C. Jodoin chose to commence an investigation in relation to a GUID in this case “because of the length of time that it’s been identified by CPS and because of the relatively large number of child notable files.”
36Between March 12, 2018 and May 14, 2018, using Shareaza LE, D.C. Jodoin downloaded seven files of suspected child pornography directly from the shared file library of the computer system connected to the IP address and associated GUID that CPS had previously identified. In an ITO, D.C. Jodoin stated that the computer system at this IP address “was the sole candidate for these downloads, and as such, the files were downloaded directly from this IP address and associated GUID.”
37On May 15, 2018, D.C. Jodoin viewed the seven files that had been downloaded. He concluded that the contents of these files met the definition of child pornography as set out in s. 163.1(1) of the Criminal Code. The same day, using publicly available software, D.C. Jodoin determined that the IP address was associated to ISP Teksavvy Solutions Inc.
38On May 16, 2018, D.C. Jodoin applied for a production order to obtain subscriber information for this IP address. Later that day, the application for a production order was granted. On May 18, 2018, D.C. Jodoin provided Teksavvy Solutions Inc. with a copy of the production order.
39On June 18, 2018, D.C. Jodoin received subscriber records from Teksavvy Solutions Inc. for this IP address. The subscriber records revealed that the name and address associated to the account was Kareem El-Halfawi, 569 King Street East, apartment 405, Toronto.
40On September 11, 2018, using CPS, D.C. Jodoin determined that the GUID he had investigated in May, 2018 was now associated to a different IP address. Later that day, using Shareaza LE, D.C. Jodoin initiated attempts to download files that were suspected of being child pornography directly from the shared file library of the computer system connected to the second IP address and the associated GUID.
41On October 9, 2018, using Shareaza LE, D.C. Jodoin downloaded two complete files and partially downloaded five files of suspected child pornography directly from the shared files library of the computer system connected to the second IP address and the associated GUID. In an ITO, D.C. Jodoin stated that the computer system at the second IP address “was the sole candidate for these downloads, and as such, the files were downloaded directly from this IP address and associated GUID.”
42On October 16, 2018, D.C. Jodoin reviewed the two complete files that he downloaded on October 9, 2018. He concluded that the contents of these files met the Criminal Code definition of child pornography. The same day, using publicly available software, D.C. Jodoin determined that the second IP address was associated to ISP provider Rogers Communications Canada Inc.
43On October 17, 2018, D.C. Jodoin applied for a production order to obtain subscriber information for the second IP address. Later that day, the application for a production order was granted.
44On October 18, 2018, D.C. Jodoin received subscriber records from Rogers Communications Canada Inc. for the second IP address. The subscriber records revealed that the name and address associated to the account was Kareem Halfawi, 569 King Street East, # 405, Toronto. This account had been activated on August 24, 2018.
45On October 30, 2018, D.C. Jodoin went to a multi-story residential building at 569 King Street East in Toronto. The names of the building’s occupants were listed in the lobby. One of the names on this list was “Halwfawi K”.
46On November 19, 2018, D.C. Jodoin conducted a search of the Ontario Ministry of Transportation licence database, which revealed that a driver’s licence had been issued in the name of Kareen Sami El-Halfawi and that his address was unit 405-569 King Street East, Toronto.
47D.C. Jodoin applied for a Criminal Code search warrant for unit 405, 569 King Street West, Toronto, which was issued on November 20, 2018.
48On November 22, 2018, at about 5:21 a.m., eight TPS officers with the Child Exploitation Unit met for a briefing prior to the execution of the search warrant. The briefing ended at about 5:25 a.m.
49D.C. Jodoin testified that he arrived at 569 King Street at approximately 5:50 a.m. The officers entered the building and went to the fourth floor. At approximately 6:06 a.m., D.C. Jodoin knocked on the door of unit 405. D.C. Jodoin said that a male voice inside the apartment responded by asking, “Who is it?” D.C. Jodoin replied, “It’s the police.” The male inside the apartment said, “Just a moment” and then opened the door. D.C. Jodoin stepped into the apartment, and took control of the male. There is no dispute that the man inside the apartment was the Applicant. D.C. Jodoin advised the Applicant that they were there to execute a search warrant.
50Once inside, D.C. Jodoin saw that the apartment was a small bachelor unit. The Applicant was the only person inside the apartment when the police arrived. D.C. Jodoin saw no indication that anyone other than the Applicant lived in this apartment. At that point, D.C. Jodoin arrested the Applicant. The Applicant was handcuffed to the front.
51At about 6:10 a.m., D.C. Jodoin turned his audio recording device on, and told the Applicant that he was under arrest for possessing, accessing and making available child pornography. D.C. Jodoin advised the Applicant of his rights to counsel and cautioned him that he was not required to say anything. D.C. Jodoin told the Applicant if he chose to speak, whatever he said could be used as evidence against him.
52At about 6:14 a.m., the Applicant indicated that he wanted to speak to a lawyer. D.C. Jodoin told the Applicant that he would be given an opportunity to speak with counsel when he arrived at the 51 Division station.
53Almost immediately after the Applicant was advised of his rights to counsel, at the direction of D.C. Jodoin, another member of the search team requested that uniform officers attend the apartment for the purpose of transporting the Applicant to the 51 Division station. Shortly after this request was made, two uniformed officers from 51 Division drove to pick up the Applicant. However, they had to return to the station before they arrived at the Applicant’s residence because they had a problem with their car. At about 6:51 a.m. uniformed officers were detailed to attend the Applicant’s residence to pick up the Applicant. These officers arrived at the Applicant’s building at about 6:55 a.m. At about 7:01 a.m., D.C. Jodoin turned custody of the Applicant over to the uniformed officers. The uniformed officers and the Applicant left the Applicant’s building at about 7:09 a.m. They arrived at the 51 Division station at about 7:12 a.m. The Applicant was paraded before a Sergeant at about 7:25 a.m. At about 7:33 a.m., a police officer called duty counsel on behalf of the Applicant. The Applicant spoke to duty counsel approximately 90 minutes after he asked to speak with a lawyer.
54D.C. Jodoin testified that members of the search team could not haven driven the Applicant to the 51 Division station as none of their vehicles had a cage that separated the front and back seat. These cars also lacked in-car cameras. D.C. Jodoin testified that unless it is absolutely warranted in exigent circumstances, in-custody accused persons are to be transported in a vehicle with in-car camera recording capabilities, if such a vehicle is accessible.
55D.C. Jodoin testified that he considered whether the Applicant could be given an opportunity to speak to a lawyer while he was inside the apartment. However, D.C. Jodoin concluded that the Applicant would not be able to have a private conversation with a lawyer since the apartment was so small. The only room in the apartment that might allow for a private conversation was the bathroom. D.C. Jodoin explained that it would not have been appropriate to have placed the Applicant in the bathroom to speak to a lawyer:
“The bathroom was unsearched. I couldn’t provide him access to his personal phone because it’s an electronic device. The kind of evidence we’re searching for could be stored on that device. I can’t put him in a position where I can’t view him if I haven’t – for example, through my experience, something as small as a thumb drive can be disguised as a variety of, like a stick of lipstick to a keychain to a (indiscernible) or so. And I didn’t want to place him in a position where potential evidence could be destroyed or manipulated.”
56While at his apartment, the Applicant asked D.C. Jodoin if he could contact his employer to advise that he would not be able to attend work that day. D.C. Jodoin told the Applicant that he could send an email to his employer. However, the Applicant’s work cell-phone was locked and required a password to open it. D.C. Jodoin told the Applicant that he was not required to tell him the password to the phone, but if the phone was opened it could be searched for evidence. D.C. Jodoin believed that the search warrant authorized a search of this cell phone. The Applicant told D.C. Jodoin that he was “fine with unlocking it”. The cell phone was unlocked and D.C. Jodoin recorded the password. The Applicant sent an email to his employer. In cross-examination, D.C. Jodoin testified that he would not have allowed the Applicant to have unsupervised access to the phone to enter his password as he could have disabled the phone. The police found no relevant evidence on this cell phone.
57D.C. Jodoin testified that, while at the apartment, he spoke to the Applicant after the Applicant had requested to speak to counsel. While D.C. Jodoin could not recall asking the Applicant the following questions, the evidence supports the conclusion that these questions were asked: “Do you know why we’re here?” and “Where is it?”
58While another police officer was beginning his examination of a desktop computer inside the apartment, the Applicant looked in that direction. At that point, D.C. Jodoin asked the Applicant, “Are we going to find what we’re looking for?” The Applicant responded by stating, “Yeah, you’re not going to find anything on that computer.” In cross-examination, D.C. Jodoin agreed that his question could have elicited an answer that had significant evidentiary value. D.C. Jodoin testified that he asked this question because, “I just wanted to know if we were going to find what we were looking for.” D.C. Jodoin said that the question “popped into his head”. D.C. Jodoin testified as follows:
“I agree with counsel, based on that question I asked, I’m not going to deny that it could have elicited a response but I was also aware that I had cautioned him and advised him of his rights to counsel. So, I wasn’t anticipating a response. My intent wasn’t to elicit a response. I asked the question. In hindsight do I think that I asked that question in error? Yes. And um, it wasn’t my intent to elicit a response in terms of a confession, or I knew I was going to ask those questions and put those questions to Kareem at the station after he spoke with counsel. I happened to look over, saw Mr. Saini [a police officer] examining the computer and I asked the question.”
59The police did not find any child pornography on the desktop computer.
60D.C. Jodoin did not recall asking the Applicant about any other electronic devices while they were in the apartment.
61Police officers later reviewed the contents of the electronic devices that they seized. A forensic examination revealed that hundreds of videos and images that met the Criminal Code definition of child pornography were found on two of the seized computers.
62D.C. Jodoin testified it was his understanding that CPS does not obtain judicial authorizations to access and log information from shared folders on P2P networks as this information is public information. Judicial authorizations are also not obtained by the police to access information from CPS or to use Shareaza LE software to investigate a particular GUID. It was D.C. Jodoin’s opinion that judicial authorizations are not required in these circumstances as the information the police obtain from CPS and Shareaza LE is publicly available information.
63D.C. Jodoin testified that where CPS finds a file in a shared folder that matches the hash value of suspected child abuse material, CPS logs the file name, hash value of the file, the IP address and the GUID.
64It was D.C. Jodoin’s understanding that CPS does not log information from a computer’s shared folder if none of the files in that folder match a hash value of suspected child abuse material. However, if CPS found one match, it would record information about other files in the shared folder.
ISSUES
65There are five issues on this application.
Issue One: Were the Applicant’s s. 8 Rights Violated by the Automated Gathering and Logging of Electronic Information by CPS and TPS’s Use of this Information?
(a) Positions of the Parties
66Counsel for the Applicant argued that the gathering and logging of electronic information by CPS and the use of that information by the TPS, (without judicial authorization) are “collectively and/or individually, violations of the Applicant’s rights pursuant to s. 8 of the Charter.”
67Crown counsel argued that there had been no state activity (prior to the execution of the first production order) that constituted a “search” for the purposes of s. 8, as there was no intrusion on the Applicant’s reasonable expectation of privacy. Therefore, the Applicant’s s. 8 rights were not infringed. [4]
(b) Legal Principles
68Section 8 of the Charter protects against unreasonable search and seizures.
69The first question a court must answer on a s. 8 claim is whether what the police did constituted a “search” within the meaning of s. 8 of the Charter: Spencer, at para. 16. Police activity will only constitute a “search” under s. 8 if, in the totality of the circumstances, it invades a reasonable expectation of privacy: R. v. Wise, [1992] 1 SCR 527, at p. 533; R. v. Evans, [1996] 1 SCR 8, at para.11; Spencer, at para. 16.
70The reasonable expectation of privacy standard is “normative rather than simply descriptive”: Spencer, at para. 18.
71To assess whether an accused had a reasonable expectation of privacy, a court must consider and weigh “a large number of interrelated factors”: Spencer, at para. 17. In Spencer, at para. 18, Cromwell J. grouped these factors under the following four headings:
- The subject matter of the alleged search;
- The claimant’s interest in the subject matter;
- The claimant’s subjective expectation of privacy in the subject matter; and
- Whether this subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances.
72In R. v. Ward, 2012 ONCA 660, at para. 65, Doherty J.A. concluded that when determining the subject matter of an alleged search, the court’s decision must be made having regard to “the nature of the privacy interests potentially compromised by the state action.” See also Spencer, at para. 31.
73Anonymity is an important aspect of informational privacy in the context of Internet usage: Spencer, at paras. 43 and 48.
(c) Jurisprudence on the Use of CPS Information
74Beyond the general legal principles that I have already reviewed, there is some Canadian and American jurisprudence that provides guidance on this issue.
75In Nguyen, Fairburn J. (as she then was) rejected an argument that an accused’s s. 8 rights were breached when a police officer obtained GUID information from CPS about a computer that was operating on a P2P network. Using CPS, the police also determined that this computer had an IP address associated to Brampton and was suspected of having child pornography in its shared folder. Using Shareaza LE, the police downloaded child pornography from the computer’s shared folder. The accused argued that his s. 8 rights had been infringed because his computer’s hard drive had been searched, without judicial authorization, to identify the GUID associated to his P2P file sharing program. Fairburn J. concluded that the Applicant had failed to establish that he had a reasonable expectation of privacy in the GUID associated to his P2P program. Fairburn J. found that the subject matter of the search – the GUID – does not provide any window into private information about an individual. Fairburn J. summarized her reasons as follows at para. 46:
“In the end, I conclude that a person who chooses to operate on a P2P network is making information available to others on the network. It is the very foundational premise upon which P2P networks operate. Just like the user knows he can obtain information from another’s shared folder, he knows that another inhabitant of the world, also operating on the same P2P network, may obtain information from his shared folder. He has made a conscious decision to make his shared folder open to others on the P2P network. Like IP addresses, assigned to each device participating on the Internet, GUIDs are assigned programs operating within P2P networks. From an individual privacy perspective, they are entirely benign until such time as the subscriber information related to an IP address is discovered. Standing on its own, a GUID, like an IP address, does not adversely impact an individual’s reasonable expectation of privacy.”
76I will now turn to the American cases. The Supreme Court of Canada has recognized that the “wealth of experience” that American courts have in constitutional interpretation “may offer guidance to the judiciary in this country”: R. v. Simmons, [1988] 2 SCR 495, at 26. However, as Moldaver J.A. (as he then was) stated in R. v. Lauda, [1999] O.J. No. 2180 (Ont. C.A.), at para. 39, “although American jurisprudence may serve as a useful guide to the interpretation of the Charter, it is by no means determinative.” There are “fundamental structural differences between the American and Canadian constitutions”: Lauda, at para. 39. Further, it is also important to remember that while “s. 8 of the Charter is framed in broad language, the protections afforded by the Fourth Amendment are limited to ‘persons, houses, papers and effects’”: Lauda, at para. 43.
77The use of information obtained from CPS by police officers has been the subject of a number of decisions in the United States. In People v. Worrell, 59 Misc. 3d 594 (N.Y. Sup. Ct. 2018), at 613, the Court stated as follows:
“As to the use of CPS in particular, every Fourth Amendment challenge to its use has failed in federal courts, which have repeatedly found CPS to be both a reliable investigative tool and that it does not perform a search of suspects’ computers.” (US v. Thomas, 788 F. 3d 345 (2d Cir. 2015), cert denied, 136 S Court. 848 [2016]; US v. Borowy, 595 F. 3d 1095 (9th Cir. 2010), cert denied 562 IS 1092 [2010]; US v. Ganoe, 538 F. 3d 1117 (9th Cir. 2008), cert denied 556 US 1202 [2009]; US v Perrine, 518 F. 3d 1196 (10th Cir. 2008); US v Gavel, 2010 US Dist. LEXIS 107131 (S.D. Fla. 2010).” [Emphasis added.]
78In Worrell, at p. 613, the Court noted that, “in addition to federal courts, state courts have also upheld the use of CPS as a lawful and reliable investigative tool which did not conduct a search of an area protected under the Fourth Amendment.”
79The Court in Worrell, at p. 612, concluded that, “the very nature of a shared folder is to advertise and distribute the files and their contents to third parties – thereby destroying any expectation of privacy.”
80On appeal, the Supreme Court of New York (Appellate Division) concluded as follows:
“Despite any subjective expectation the defendant may have held regarding the privacy of his files, an individual does not have an objectively reasonable expectation of privacy in computer files stored in such a broadly accessible manner on a network, the very purpose of which is to permit such sharing between users”: People v. Worrell, 170 A.D. 3d 1048 (N.Y. App. Div. 2019), at 1050 [2019]; leave to appeal denied, People v. Worrell, 33 NY 3d. 1075 [Court of Appeals of New York, 2019].
(d) Analysis
81While I am inclined to view the subject matter of the putative searches as the GUID and IP addresses, an argument could be made that the subject matter included the contents of the Applicant’s shared folders that were available to users of the P2P network. For the purposes of this analysis, I will assume that the subject matter of the putative searches included the Applicant’s shared folders.
82However, if the subject matter was limited to the GUID and IP addresses, that would weaken the Applicant’s claim that he had a reasonable expectation of privacy. In Nguyen, at para. 35, Fairburn J. concluded that a GUID is more similar to an IP address than subscriber information. On their own, IP addresses “do not trigger a reasonable expectation of privacy”: Nguyen at para. 36. Fairburn J. reasoned that a GUID is “like a raw IP address, it is just a number and tells the state nothing about a specific individual”: Nguyen, at para. 36. Based on the evidence before the Court in Nguyen, at para. 35, Fairburn J. found that “there is no database that permits investigators to geographically locate GUIDs or discover identities behind the GUIDs.”
83In this case, the Applicant had an interest in the contents of his shared folders. On the other hand, the Applicant’s interest in the GUID or IP addresses located by the police was minimal. I do not see how the Applicant could have a meaningful interest in a GUID or IP address: Nguyen, at para. 41.
84The Applicant did not testify on this Application. In some circumstances, it will be reasonable to infer that an accused had a subjective expectation of privacy, without the accused testifying. However, in this case, it is difficult to see how the Applicant could have a subjective expectation of privacy. It is alleged that files were downloaded on the Applicant’s computers, placed in shared folders and accessible to other P2P users. The purpose of a P2P network is to share files. The information in a shared folder “is there for the taking and giving”: Nguyen, at para. 42.
85In any event, even if the Applicant had a subjective expectation of privacy, it was not objectively reasonable.
86People choose to use a P2P network. A user of a P2P network makes a choice about what files to make available to other users. As Fairburn J. noted in Nguyen, at para. 38, “this is the whole point of P2P networks.” Users of P2P networks can make files available or unavailable to others. A P2P user can easily add or remove files from their shared folder.
87Any person using the same P2P network as the Applicant could browse and download the files in the Applicant’s shared folder. There is no reasonable basis to conclude that there was an intention to keep files in the shared folders of the two computers private. To the contrary, by installing and using P2P file sharing software, there was an expectation by the user of these computers that the files in the shared folders would be shared with other users of the P2P network.
88D.C. Jodoin’s use of Shareaza LE did not result in the officer being able to examine the contents of the Applicant’s shared files beyond what any member of the public who was using file-sharing software would have been able to access. As Fairburn J. observed in Nguyen, at para. 38, “Shareaza LE simply accesses what everyone else in the world on the same P2P network can access.”
89During the course of his submissions, the Applicant’s counsel reasonably acknowledged as follows:
“There can and should be an expectation that your files [in a user’s shared folder] may be investigated by the police in a manual way.”
“It may be that quite frankly a person who makes files available should have an expectation that some law enforcement officer may be one of the people that pretends to download it.”
90Counsel for the Applicant argued that there is an important distinction, for the purpose of assessing whether a person has a reasonable expectation of privacy, between police officers conducting manual searches of files from shared folders on a P2P network and investigations in which police rely on CPS software.
91Police officers can manually search for and review the contents of shared files on a P2P network without judicial authorization. These manual searches can be very time-consuming. In Borowy, at p. 1048, the Court concluded that a forensic software program which uses hash marks to identify suspected child pornography (like CPS) operates “simply as a sorting mechanism to prevent the government from having to sift, one by one, through [the defendant’s] already publicly exposed files.” In State v. Combest, 271 Ore. App. 38 (Or. Ct. App. 2015), at p. 55, the Court stated as follows:
“There is no doubt that Shareaza LE creates important efficiencies for the officers in locating a network user sharing child pornography. But the fact that Shareaza LE made police practice more efficient – by allowing for repetition and automation of the procedures an officer would go through without that kind of software – does not by itself establish that police conduct amounted to a search under Article I, section 9.”
92In my view, the fact that CPS is capable of collecting and efficiently aggregating certain information about files that users of a P2P network have chosen to put in shared folders does not mean that this process constituted a search under s. 8 of the Charter.
93Anonymity plays an important role in protecting privacy interests online. The identity of a P2P user cannot be determined by CPS or Shareaza LE. The anonymity of a person connected to a GUID or an IP address is maintained unless and until a judicial authorization is obtained by police for subscriber information: see Nguyen, at para. 45.
(e) Conclusion
94Based on the totality of the circumstances, it is my conclusion that the actions of the police (prior to the execution of the first production order) had no impact on the Applicant’s reasonable expectation of privacy. This conclusion is consistent with the reasoning of Fairburn J. in Nguyen and the American case law that I reviewed.
95The Applicant’s rights under s. 8 were not violated.
Issue Two: Did the Police Violate the Applicant’s s. 8 rights by Not Obtaining a “Feeney Warrant”?
96Counsel for the Applicant argues that the police violated the Applicant’s s. 8 rights when they arrested the Applicant inside his residence without a “Feeney warrant”. For two reasons, I do not agree with this argument.
97First, it would not have been possible to obtain a Feeney warrant prior to entering the residence, as D.C. Jodoin did not have a subjective belief that there were reasonable grounds to arrest the Applicant. I accept the evidence of D.C. Jodoin that before he entered the apartment he had not determined whether the Applicant was “arrestable”. D.C. Jodoin testified that “there was nothing in my investigation other than him [the Applicant] living in that residence led me to specifically believe that he was arrestable prior to the execution of the search warrant.” D.C. Jodoin testified that before executing the search warrant he did not know how many people lived in the residence but “upon entering it was quite evident that he was the sole occupant and sole person living in the apartment and that is when I decided to place him under arrest.” In other words, D.C. Jodoin determined there were reasonable grounds to arrest the Applicant after entering the apartment.
98Second, the police were lawfully in the Applicant’s residence under the authority of a search warrant when they arrested the Applicant. The police were not required to obtain another judicial authorization to enter the residence to arrest the Applicant. In R. v. Lucas, 2009 ONSC 69326, Nordheimer J. (as he then was), at para. 28, concluded that to require the police to obtain a Feeney warrant when the police had already satisfied a judge that they had reasonable grounds to enter a residence for the purpose of conducting a search would be “redundant”. In rejecting the argument that a Feeney warrant was required, Nordheimer J., at para. 29, stated as follows:
“In this case, there was no suggestion that the search warrants were obtained as a pretext to arrest the applicants. Rather, the arrests were an adjunct to the purpose for which they sought authorization to enter the premises, namely to search. Having obtained authorizations to enter and search, and thus being lawfully in the homes, the police were entitled to effect the arrests.” [5]
99In this case, the police did not obtain the search warrant as a pretext to arrest the Applicant.
100In my view, the conclusion that the police were not required to obtain a Feeney warrant finds additional support in R. v. Stairs, 2020 ONCA 678. In Stairs, police officers entered a residence after a civilian made a 911 call to report that a male driver of a vehicle hit a female passenger. The vehicle mentioned by the 911 caller was found by police parked in a residential driveway. Police officers knocked at the front door of the residence, but no one responded. Based on safety concerns for the female passenger, the officers entered the home, found a woman who appeared to have fresh facial injuries and arrested the appellant. While inside the home, the officers also seized methamphetamine. The appellant argued that once the female had been located by the police, “she was safe and the police were required to leave the residence to obtain the Feeney warrant to effect the arrest” Stairs, at para. 29. The Court of Appeal disagreed. Fairburn J.A., for the majority, concluded at para. 32 that as the police had lawfully entered the residence under the ancillary powers doctrine, “it would make no sense to require them to leave to obtain an authorization to enter again, only to effect an arrest that they could clearly make without warrant if it was anywhere other than a private dwelling.” At para. 35, Fairburn J.A. concluded that as the police officers had lawfully gained entry to the residence they were permitted to effect the arrest once the grounds for arrest crystalized. [6]
101In this case, the police were lawfully inside the residence when their grounds to arrest the Applicant crystalized.
102The police were not required to obtain a Feeney warrant.
Issue Three: Was the Applicant Given an Opportunity to Speak with Counsel at the First Reasonable Opportunity?
103Section 10(b) of the Charter provides that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
104In R. v. Bartle, [1994] 3 SCR 173, at p. 192, Lamer C.J. concluded that s. 10(b) imposes the following duties on the police after arresting or detaining a person:
“(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).”
105The duty to facilitate access to a lawyer arises immediately upon a detainee’s request to speak to counsel: R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, at para. 24. There is a constitutional obligation on the police to “facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at para. 24. The onus is on the Crown to show “that a given delay was reasonable in the circumstances”: Taylor, at para. 24. A justified delay in accessing counsel does not result in a s. 10(b) violation: R. v. Griffith, 2021 ONCA 302, at para. 41. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry: Taylor, at para. 24.
106In Taylor, at para. 32, the Court stated that, “[t]he duty of the police is to provide access to counsel at the earliest practical opportunity.” [Emphasis added.]
107The practicalities of the situation must be considered as “they inform the reasonableness of the delay in facilitating the exercise of the right”: R. v. Patrick, 2017 BCCA 57, at para. 113; leave denied, [2017] SCCA 108; R. v. Larocque, 2018 ONSC 6475, at para. 41.
108The police “are under no legal duty to provide their own cell phone to a detained person”: Taylor, at para. 27. However, the police have “both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated”: Taylor, at para. 28.
109In this case, the Applicant had been advised of his right to counsel and cautioned by 6:14 a.m. He asked to speak with a lawyer. The police implementational duties were triggered at that time. The Applicant spoke with duty counsel about ninety minutes later.
110Given the circumstances, I accept that it would not have been reasonably possible for the police to have ensured that the Applicant could speak to counsel in private while in the Applicant’s small apartment.
111The police attempted to minimize the delay in the Applicant speaking to counsel by contacting 51 Division almost immediately after the Applicant was arrested and requesting that uniformed officers attend to take the Applicant back to the 51 Division station.
112An unexpected problem with the uniformed officers’ vehicle delayed their arrival at the Applicant’s apartment. This is a relevant factor in assessing the reasonableness of the delay in the Applicant speaking with counsel. In my view, this problem was the cause of most of the delay between the time when the Applicant asked to speak to counsel and when the uniformed officers arrived at the apartment. I found no basis to conclude that the delay after the Applicant arrived at the 51 Division station was not justified. I have concluded that, in the unique circumstances of this case, the Crown has discharged its onus to show that the Applicant was given an opportunity to exercise his right to counsel at the first reasonable opportunity.
Issue Four: Were the Applicant’s s. 10(b) Rights Violated When D.C. Jodoin Asked the Applicant Some Questions Before the Applicant Spoke to Counsel? (the “Holding Off” Issue)
113Police officers are required to “hold off” from attempting to elicit incriminatory evidence until a detainee has had a reasonable opportunity to consult with counsel: R. v. G.T.D., 2018 SCC 7, at para. 2; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269.
114In G.T.D., at paras. 2-4, the Court concluded that the question “Do you wish to say anything?”, which had been asked by an officer after the accused requested to speak with counsel, violated the duty to “hold off”.
115The duty to hold off does not prevent police officers from asking standard booking questions or making other inquiries that are designed to “assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others”: R. v. Dupe, 2010 ONSC 6594, at para. 24.
116In this case, D.C. Jodoin asked the Applicant a few questions while they were in the apartment. This was before the Applicant had an opportunity to speak with counsel.
117D.C. Jodoin was a credible witness. I believe that D.C. Jodoin could not recall asking the Applicant, “Do you know why we’re here?” and “Where is it?” However, given the contents of the subsequent video-taped interview with Applicant (after the Applicant spoke to counsel), it seems clear that D.C. Jodoin asked the Applicant those questions while they were in the apartment.
118I accept D.C. Jodoin’s testimony that he erred when he asked the Applicant, “Are we going to find what we’re looking for?” When D.C. Jodoin asked this question, he knew that he was going to ask the Applicant this question after the Applicant had an opportunity to speak with counsel. In the moment, D.C. Jodoin blurted out this question when another officer was inspecting the desktop computer. I accept that D.C. Jodoin was not deliberately attempting to obtain incriminatory answers from the Applicant before he spoke to counsel.
119However, by asking those questions, D.C. Jodoin did not comply with his obligation to refrain from eliciting evidence before the Applicant had a reasonable opportunity to exercise his right to speak with counsel. In my view, the duty to “hold off” includes an obligation to not ask a detainee questions where it is reasonably foreseeable that the answers the detainee could provide would be incriminatory or otherwise have investigative value.
120I am satisfied that the Applicant’s s. 10(b) rights were violated.
Issue Five: Would the Admission of the Evidence Bring the Administration of Justice into Disrepute?
121A court’s s. 24(2) analysis must assess the long-term impact of the admission or exclusion of evidence on the administration of justice: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, at para. 84; R. v. Le, 2019 SCC 34, at para. 140.
122In deciding whether the admission of evidence would bring the administration of justice into disrepute, a court must consider each of the three Grant lines of inquiry.
The Seriousness of the Charter-Infringing State Conduct
123The first Grant line of inquiry involves an assessment of the seriousness of the state conduct that led to the infringement: Grant, at para. 74.
124The more serious or deliberate the state conduct that resulted in a Charter violation, the greater the need for a court to dissociate itself from that conduct by excluding evidence connected to that misconduct: Grant, at para. 72. A finding of willful or flagrant disregard of the Charter will increase the seriousness of the conduct. On the other hand, inadvertent, technical or minor violations have less of an impact upon the reputation of the administration of justice: Le, at para. 143.
125Officer Jodoin is an experienced officer. The obligation to “hold off” is well-settled. [7] Officer Jodoin should have known that these questions were not Charter compliant. That makes the breach more serious.
126D.C. Jodoin did not set out to violate the Applicant’s s. 10(b) rights. D.C. Jodoin did not engage in extensive questioning of the Applicant while inside the apartment. There was no evidence that the Applicant was subjected to aggressive questioning or other pressure to give a statement before he spoke to counsel. D.C. Jodoin treated the Applicant with respect and courtesy. D.C. Jodoin properly advised the Applicant of his s. 10(b) rights.
127Counsel for the Applicant argued that the Charter infringing state conduct was made more serious when D.C. Jodoin recorded the password to the Applicant’s cell phone. It was argued that the Applicant’s decision to provide D.C. Jodoin the password was not truly consensual. It was suggested that, in obtaining the password, D.C. Jodoin had been “opportunistic”. I do not accept this submission. To protect the integrity of evidence that could have been located on the cell phone, it was necessary for D.C. Jodoin to maintain control of this phone – this included controlling the process involved in inputting the password to open the phone. D.C. Jodoin told the Applicant that he was not required to turn over his password. The Applicant was also told that if he provided the password to D.C. Jodoin, the police would search the phone. I accept D.C. Jodoin’s testimony that he allowed the Applicant to use his cell phone because D.C. Jodoin felt that the Applicant “had enough to worry about at that time and [D.C. Jodoin thought] that the status of [his] employment wasn’t one more thing he needed.”
128The s. 10(b) breach was not the product of a systemic or institutional problem.
129I have concluded that the s. 10(b) breach was moderately serious. The first Grant factor weighs in favour of exclusion.
The Impact of the Breach on the Charter-Protected Interests of the Applicant
130The second Grant line of inquiry requires a court to assess the “seriousness of the impact of the Charter breach on the Charter-protected interests of the accused”: Grant, at para 76.
131The impact of a constitutional infringement on an accused’s Charter-protected interest is a variable. Charter violations range from technical to highly intrusive: Grant, at para. 76; Le, at para. 151. The more serious the violation on the protected interests of the accused, the greater the risk that the admission of the evidence may bring the administration of justice into disrepute: Grant, at para 76.
132A court must consider the extent to which the breach actually undermined the interests protected by the right infringed: Grant, at para. 76; Le, at para. 151.
133Before he spoke to counsel, the Applicant was in a vulnerable position. He should have been provided access to the “lifeline of counsel” before he was asked questions by D.C. Jodoin: R. v. Rover, 2018 ONCA 745, at para. 45.
134The Crown did not seek to introduce into evidence any of the utterances made by the Applicant.
135While there is a sufficient connection between the Charter violation and the seizure of the real evidence from the Applicant’s apartment to engage s. 24(2), this is not a case where the Charter infringement was causally connected to the police obtaining the evidence that the Applicant seeks to have excluded. The evidence recovered from the computers would have been discovered by the police even if there had been no s. 10(b) breach. The absence of a causal connection between the s. 10(b) breach and the real evidence mitigates the impact of the breach on the Applicant’s Charter-protected interests: Rover, at para. 43; R. v. Miller, 2018 ONCA 942, at para. 21.
136In my view, the impact of the s. 10(b) violation on the Applicant’s Charter-protected interests falls at the less serious end of the spectrum.
137The second Grant factor favours admission of the evidence.
Society’s Interest in the Adjudication of the Case on its Merits
138The third Grant line of inquiry requires an assessment of the societal interest in the adjudication of the case on its merits.
139The impugned evidence is relevant and reliable.
140The exclusion of this evidence would effectively gut the prosecution.
141The alleged offences are serious. Child pornography offences are “particularly insidious”: R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 8. Society has an interest “in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children”: Spencer, at para. 80.
142The third Grant line of inquiry favours admission of the evidence.
Overall Balancing
143In my view, a reasonable person who was informed of all of the relevant circumstances and the values underlying the Charter would not lose faith in the criminal justice system with the admission of the evidence.
144After balancing the three Grant factors, it is my view that society’s confidence in the administration of justice is best maintained by the admission of the evidence.
CONCLUSION
145The application is dismissed.
NORTH J.
Footnotes:
1Counsel for the Applicant acknowledged that if the information obtained from CPS and Shareaza LE (software used by law enforcement to identify, access and download suspected child pornography contained in the shared folders of P2P users) is not excised, the ITOs for the production orders and the search warrant contained reasonable grounds to support the issuance of these judicial authorizations.
2R. v. Feeney, [1997] 2 SCR 13.
3On September 8, 2021, I released a corrigendum to correct the spelling of D.C. Jodoin’s name. The text of the original reasons has been corrected.
4Crown counsel did not suggest that the Charter did not apply to the initial collection of information by CPS because the CPS server was outside of Canada or because law enforcement officials who oversee CPS may be located outside of Canada.
5The Court of Appeal dismissed the appeal against conviction. On appeal, the Appellants did not argue that Nordheimer J. erred in his ruling on the Feeney warrant issue: R. v. Lucas, 2014 ONCA 561, at para. 252.
6In Stairs, at para. 70, Nordheimer J.A. dissented in the result, but agreed with the majority that the police did not require a Feeney warrant.
