Ontario Court of Justice
Date: 2022 11 08 Court File No.: Central West Region 998 18-N4857
BETWEEN:
HIS MAJESTY THE KING
— AND —
Zachary Crump
Before: Justice J. De Filippis
Heard on: May 30-31, June 2-3, July 26, and September 28, 2022 Reasons for Judgment released on: November 8, 2022
Counsel: Ms. D. Polgar....................................................................................... counsel for the Crown Mr. J. Loconte.................................................................................. counsel for the accused
INTRODUCTION
1The defendant was charged with three counts; namely, accessing, possessing, and making available child pornography. The police executed a search warrant at his home. It is conceded that child pornography was found on a computer in a bedroom. The defendant made incriminating statements during the search and later at a police station.
2The Defence seeks to exclude the evidence found on the computer and the defendant’s statements on the basis that the police violated sections 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. At the start of submissions, I told the parties that I saw no merit in the section 9 and 10(a) claims.
3Section 10 (b) states that, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”
4Section 24(2) provides that where, “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
5To succeed the defendant must establish his claim on a balance of probabilities.
6I find that section 10(b) was violated. I find that the admission of the defendant’s statements at his home and at the police station would bring the administration of justice into disrepute. I find that the Charter breach does not reach the computer search. I conclude that the evidence obtained by that search justifies a finding of guilt.
NON-CONTROVERSIAL FACTS
7On October 8, 2018, Detective Constable Pataran of the Niagara Regional Police Service reviewed logs created by a law enforcement investigative tool for detection of distribution and downloading of child pornography on peer-to-peer networks (a Round up tool). Those logs revealed that an internet IP address in Niagara Falls had repeatedly used BitTorrent client software to access, download, and share child pornography. That IP address was [XXXXX] [1]
8The IP address was using a particular BitTorrent software program to download and share child pornography, called uTorrent 3.5.4. This is a free peer-to-peer file sharing program which is downloadable from the internet through a multi-step process. It is not a program that can be downloaded accidentally. A person who has downloaded this program requests or searches for material by entering a keyword on an indexing website, then selects the file or files that they want from the available selection which is generated by their search.
9DC Pataran obtained a Production Order for IP address [XXXXX], and served it on Bell Canada. The latter advised that the IP address [XXXXXX] was registered to M. Crump at a specific address in Niagara Falls. Additional investigation by the officer led him to believe that there were three residents at that place: Merle Crump, Margaret Crump, and Jesse Crump.
10On November 13, 2018, DC Pataran obtained a search warrant for the electronics and electronic data storage devices at the address in question. From September 18, 2018, until the date the information to obtain a search warrant was sworn, the police investigative computer had made 38 direct connections with a computer at the [XXXXXX] IP address. During that time, it downloaded a piece or pieces of a child pornography torrent file 17 times.
11The search warrant was executed at 7:03 a.m. on November 14, 2018. Police seized eight electronic devices, comprising two external hard drives, a thumb drive, a cell phone, and four laptops from three different rooms in the house. Ultimately, child pornography was found on an Acer laptop which was “live” – meaning it was powered on and logged in – and which was seized from the defendant’s bedroom. In total, 147 accessible images and 57 inaccessible images were identified on this computer, which met the definition of child pornography, as defined in section 163.1(1) of the Criminal Code of Canada.
12The defendant was present at the home, along with his mother and brother when the warrant was executed. He was arrested after the child pornography was located and provided with his right to counsel. Before this, he had answered questions put to him by the police. Once advised of his right to counsel, the defendant stated he wished to speak to a lawyer. He was transported to the police station, and duty counsel was called for him, at his request. Six hours later, he was interviewed and provided an inculpatory statement.
EVIDENCE
13When the police arrived at the residence, DC Pataran knocked on the door, and it was opened by Margaret Crump, the defendant’s mother. She was provided with a copy of the warrant and they walked to the living room area off the kitchen. DC Pataran learned from Mrs. Crump that her husband had already left for work, but her two sons, the defendant and Jesse, were at home. The sons were brought to the living room area by PC Davidson. DC Pataran explained the search warrant, the items the police were looking for, and the offences being investigated. He told them the police did not know who was responsible for the child pornography that he believed had been downloaded and shared from their house.
14DC Pataran also testified that he told the family that nobody was detained or under arrest and that they were free to leave. The officer believed that he had given them their rights to counsel, but he was not certain of this. He recalled providing the family with the standard police caution.
15The Crump residence was described by several witnesses as being a small house. Photographs filed in evidence show that it was crammed and cluttered. According to DC Pataran, the living room was one of the few places in which to have the family assemble while he explained the warrant and the search was conducted.
16DC Pataran was aware, from his investigative tool, that child pornography was presently being accessed by a device in the home and that this device had accessed such images two days earlier on Monday, November 12. What the officer did not know is who was responsible for this.
17DC Pataran testified that to “narrow the focus of the investigation and minimize the time police spent in the house”, he asked two questions. The first was, “Who was home on Monday afternoon?” The defendant responded by raising his hand. Mrs. Crump and Jesse both denied having been home on Monday. The next question asked was, “Do you know what uTorrent is?” The defendant and his brother both replied in the affirmative and Jesse added that he did not have the program installed on his laptop.
18In cross-examination, the following exchange occurred between Defence counsel and DC Pataran:
Q: And once Jessie, excuse me, once Zachary put his hand up and said, “yeah, I was home Monday afternoon”, in your mind you are thinking oh, possibly, probably, he is the guy that had control over this device to download that child pornography, fair? A: Yes, I think that is a fair question or sorry a fair assessment... Q: In your notes after he put his hand up and you know that he was home at that critical time and that Margaret and Jessie weren’t home, you have no notation that you told him you are free to go, right? A: That is correct
19With these answers, DC Pataran decided that the defendant’s computer would be the place to start the search. However, unknown to the officer, DC Butler had already commenced the search of this device, using a software program to scan the computer. In fact, when police entered the home, DC Butler had gone directly to the defendant’s bedroom and awakened him. The officer saw the Acer laptop in the room. As it was “live”, it was readily accessible without the need for a password.
20DC Butler examined the computer and saw that the IP address was [XXXXXX]. He also noted that the program uTorrent 3.5.4 was running at the time, although nothing was downloading or being shared. The file path for uTorrent on the defendant’s computer was C:\Users\Zacha\AppData\Roaming\uTorrent. This program was set up as an autorun item. The email address was for [an email address containing the defendant’s first name], and importantly, the only user account was a password protected account named “zacha” which used profile path C:\Users\Zacha. This user account was identified as belonging to Zachary Crump.
21After asking the two questions, DC Pataran went upstairs to the defendant’s computer. The two officers were together for about 40 minutes while the computer was being scanned. DC Butler located child pornography. DC Pataran went downstairs to arrest the defendant.
22PC Davidson confirmed that he and other officers were wearing body armour and belt with use of force equipment. He denied this is done to intimidate and explained that it is a safety issue as it clearly defines the wearer as a police officer. He added that the proper procedure, once the home is secured, is to advise the occupants of the right to contact a lawyer before proceeding with the search. He could not say if this was done as he was other otherwise busy.
23While the computer was being searched by DC Butler, PC Davidson asked the defendant to provide him with the passcode for his cell phone – by this point he was the focus of the investigation. The officer agreed that the contents of the phone could be incriminating and that he had not recited the right to counsel. The officer insisted the defendant was not detained but could not recall if he had initially resisted giving up the passcode. On the other hand, Ms. Crump testified that the officer repeatedly pressed her son for the passcode before he revealed it. Ultimately, nothing incriminating was found on the phone.
24At 8:30 am, after the child pornography had been found on the computer in the defendant’s room, DC Pataran had the following conversation with the defendant:
Officer: Where do you store the child porn? Defendant: Wherever it is downloaded O: Like the default settings? D: Yeah O: Is it deleted if you don’t like it or have watched it? D: Sometimes O: Do you clear your recycle bin? D: Yeah to save storage O: in encrypted? D: No, I don’t O: Is there any passwords? D: No.
25After this conversation, the defendant was arrested and provided with his right to counsel. The defendant asserted this right, and it was later facilitated at the police station.
SECTION 10(B)
26Section 10(b) of the Charter imposes three obligations on the police with respect to a person under arrest or detention; (1) inform the person of the right to counsel, (2) provide a reasonable opportunity to exercise this right if counsel is desired, and (3) curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised.
Crown Position
27The Crown takes the position that the defendant was detained at 8:30 am, when DC Pataran came downstairs after the child pornography had been located by DC Butler. He was arrestable at that point, and so would not have been free to leave. The officer arrested the defendant at 8:36 am and advised him of his right to counsel. Before doing so he asked questions of the defendant. The Crown concedes that the answers given by the defendant between 8:30 am and 8:36 am, were obtained in violation of his section 10(b) rights. The Crown argues that breach was an error, made in good faith, to expedite the search.
28The Crown also argues that if I conclude the defendant was detained before his arrest, and that there was a breach of s. 10(b) apart from the breach already acknowledged, that no evidence was “obtained in a manner” which infringed the defendant’s rights and, if s. 24(2) is found to be triggered, then neither the evidence of the defendant’s computer nor his confession should be excluded.
Defence Position
29The Defence position is that the defendant was detained as soon as he was awakened by police flashlight into his face and escorted by the police into the living room where his mother had already been sequestered and later joined by thereafter his brother. This initial detention was legal as it was within the scope of the search warrant. However, once the police had secured the house and its occupants and taken steps the legal detention of the occupants ceased. Counsel argues that after this, the occupants were detained beyond the authority of the search warrant. Moreover, DC Pataran had grounds to arrest before he did. In these circumstances, the failure of the police to provide the right to counsel means all statements made by the defendant and the evidence of child pornography found on the computer should be excluded.
The Defendant’s Statements Before His Arrest
30The Crown submits that the questions initially asked at the Crump residence were general in nature and designed to streamline the search process and minimize the inconvenience to the family, rather than to invite self-incrimination. The questions were: Who was home on Monday afternoon? Do you know what uTorrent is? Counsel adds that neither question was directed specifically at the defendant and neither answer provided grounds to arrest.
31The Defence argues that before asking these questions DC Pataran knew that child pornography had been downloaded at the residence on Monday, November 12, and that this was facilitated by u-torrent software. The officer also knew the IP address for the receipt of the child pornography. What the officer did not know is which one of the occupants of the home was responsible. As such, the questions were intended to further the investigation by revealing the culprit.
Reasonable and Probable Grounds to Arrest
32As noted, the Crown submits that DC Pataran did not have grounds to arrest the defendant until 8:30 am DC Butler had concluded his review of the computer in the bedroom. The Defence argues that such grounds existed once DC Pataran received the defendant’s answers to the two questions noted above.
The Second Statement at the Station
33The statement by the defendant at the police station was given after he had spoken to counsel. The Crown argues that this means there is no violation of section 10(b). The Defence submits that the second statement is tainted by its strong link to the incriminating statements made at the home, in violation of s. 10(b). In support of this submission, counsel pointed to numerous times, in the transcript of the police interview at the station, in which PC Pataran introduces a question by referring to what the defendant had said at his home.
ANALYSIS
34A reasonable and probable ground to arrest and/or search has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 (S.C.C.).
35Crown and Defence agree that the most important governing cases with respect to detention are these three recent decisions; the Supreme Court of Canada in R. v. Lafrance, 2022 SCC 32 and the Court of Appeal for Ontario in R. v. McSweeney, 2020 ONCA 2 and R. v. Scopel-Cessel, 2022 ONCA 316.
36In Lafrance, the police suspected that the accused was involved in a murder. A search warrant was executed at his residence by heavily armed officers. The accused was asked to come to the police station to provide a statement and told that this was a voluntary choice. The accused was interviewed at the station for three and a half hours and later arrested. The Court held that that accused was detained from the outset. No single consideration is determinative of this issue; what is required is a realistic appraisal of the police conduct throughout the encounter. The fact that police told the accused that his cooperation was voluntary is not determinative.
37In McSweeney and Scopel-Cessel, the police became aware that a particular IP address at a particular home had accessed child pornography. A search warrant was obtained and executed in the early hours of the morning. The occupants of the home were awakened by numerous officers.
38In McSweeney, the accused came downstairs soon after the police arrived. He was allowed to read the warrant and was then asked if he knew why the police were at the house, and if he could direct the police to a computer in the house that might have child pornography on it. The family was told that they could not move around the house freely until all the electronic equipment was secured.
39After about 50 minutes at the house, an officer asked the accused to go to the front porch for an interview. The officer did not caution the accused or provide him with his right to counsel. Once outside, the accused eventually admitted he was responsible for accessing the child pornography. He was arrested, given his right to counsel, and taken to the police station where he provided a second confession.
40The Court found that the police were engaged in a focused investigation. The initial questioning of the accused was accusatory and would lead a reasonable person to conclude that they were a suspect.
41The Court determined that the accused was detained, at the latest, when he was taken to the porch for an interview. The second statement at the police station was found to be linked to the first statement. This resulted in a causal nexus between the two statements. In all the circumstances, the call to duty counsel between the two statements did not remove the taint of the initial breach or sever the nexus between the two.
42In Scopel-Cessel, the accused was told that he was not under arrest and was not required to provide any information. He and his wife were brought into the living room to speak with an officer. The latter did not believe the accused to be detained, and he told the accused so. Without providing rights to counsel, the officer asked how many computers were in the house. The accused’s wife identified her computer and the accused’s computer by giving their locations in the house. The officer went to the room identified as having the accused’s computer, and found it needed a password. He told the accused that he need not provide the password, but if he wanted to prevent it from being seized, he should give it. The accused provided his password.
43Once the computer was accessed with the password, the peer-to-peer sharing program was seen on the desktop. A text document with relevant child pornography-information was on the computer. The officer went back downstairs to the kitchen to ask what was on the various storage media that had been found. He was told that it was material related to the computer’s operating system. The believed he now had grounds to arrest. He did not do so. Instead, he asked the accused who had access to that computer. Once the accused stated that only he had access, the officer arrested him and gave him his rights to counsel and caution for the first time. The Court concluded that the accused was detained for an hour and half before his right to counsel was provided.
44In the present case, like McSweeney and Scopel-Cessel, several police officers entered the Crump home in the early hours of the morning. The defendant was awakened and taken from his bedroom to the living room where he sat with his mother and brother. They were told they were not under arrest or detention and were free to leave. As noted in Lafrance, this is not determinative. Indeed, what is required is a realistic appraisal of the police conduct throughout the encounter. DC Pataran believed he advised the occupants of their right to counsel soon after the police entered the home but could not be certain. The officer’s belief in compliance with Charter rights is insufficient. On this basis, I must find that the right to counsel was not given.
45I accept the Defence submission that s. 10(b) of the Charter was breached from the moment the police entered the home. The initial detention was proper and necessary; the police must secure the premises, the occupants, and preserve evidence. I am not persuaded that the defendant was ever free to leave, and I accept he believed himself to be detained. As such, once the police had secured the premises, he should have been advised of his right to counsel. I also find that DC Pataran had grounds to arrest the defendant before he actually did so.
46DC Pataran knew child pornography had been accessed on a device at the home the previous Monday using a particular software program. As soon as the family had been assembled in the living room, he asked two questions; Who had been home on the previous Monday and who knew about the software program. The defendant replied in the affirmative to both questions. I am confident the officer now subjectively believed the defendant was the one responsible for accessing the child pornography. That belief is objectively reasonable. As such, the officer should have arrested the defendant. The fact he did not do so does not mean the right to counsel is suspended. In these circumstances it is reasonable to conclude that the defendant was not free to leave. That is, if he was not detained before the questions were asked, he was after they were answered.
47I also accept the Defence position that the second statement at the police station was also obtained in violation of s. 10(b). It does not matter that between the statements at the home and the one at the police station, the defendant was afforded the opportunity to speak to duty counsel. Like McSweeney, I find the second statement to be linked to the initial violation of the right to counsel when the defendant was questioned at his home.
SECTION 24(2)
48Section 24(2) is not aimed at punishing the police or compensating a defendant, but rather at systemic concerns. Also, the question is not whether the evidence should be excluded but whether the administration of justice would be brought into disrepute by its admission. The application of this section involves three inquires: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
49The first matter to consider is the seriousness of the Charter infringing state conduct. This is a fact specific inquiry. It recognizes that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. On the other hand, the case of admission of evidence gathered through a violation committed in good faith may not adversely affect the administration of justice. The second inquiry is focussed on the impact of the breach on the protected interests of the defendant. The greater the intrusion into privacy, bodily integrity and human dignity, the more pressing is the need to exclude the evidence in question. This may not be the case where the impact on the defendant is fleeting, transient or technical. The third question concerns the public interest in a trial on the merits. In this regard, the reliability of the evidence is the key factor to consider.
50I need not dwell on the Grant analysis in the present case as it is governed by the result in the factually similar cases of McSweeney and Scopel-Cessel. I would add the following comments: DC Pataran testified that he asked the initial questions to narrow the investigation and limit the time the police spent in the house. However, all devices in the home were searched. This supports the Defence argument that the questions were asked to obtain incriminating evidence. This highlights the seriousness of the Charter infringing conduct. In this regard, I note that the officer also obtained the defendant’s cellular phone password without first advising of the right to counsel. The fact that nothing incriminating was found on the phone is irrelevant to my analysis. In these circumstances I cannot accept that the questions asked by DC Pataran after he concluded he had reasonable and probable grounds and before he gave the right to counsel was simply a mistake. I find that the admission of the defendant’s statements would bring the administration of justice into disrepute. It is also my opinion that, notwithstanding the foregoing comments, the Charter breach does not reach the evidence found on the computer.
51The threshold question is whether the impugned evidence was obtained in a manner that infringed or denied any Charter rights. The answer to this question depends on the nature of the connection between the breach and the evidence. A causal connection will be especially important, but it is not determinative.
52In R. v. Keshavarz, 2022 ONCA 312, it was held that the connection can be causal, temporal, or contextual. The strength of that connection is a question of fact, but the approach is a generous one. However, the connection must be real; one that is remote or tenuous does not suffice. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The admission of the evidence must be such as to bring the administration of justice into disrepute.
53Defence counsel argues that in the present case the connection is temporal and contextual and urges me to follow R. v. Pino, 2016 ONCA 389. In that case, evidence discovered after Charter breaches was excluded. However, the facts in Pino mean the result is not applicable here. In that case, the police violated the defendant’s rights when they “conducted a dangerous and unnecessary takedown at gunpoint”. Marihuana was found when the defendant was searched incidental to that arrest. The defendant, described as “vulnerable”, was kept in a police cell for hours without being allowed to contact counsel. The trial judge found that the officers lied to him about the gunpoint takedown. The Court of Appeal concluded that the connection between the section 8 and 10(b) Charter violations was not too tenuous because they were” extremely serious” and accompanied by “dishonest testimony”. The Court held that “on balance, admission of the marihuana would bring the administration of justice into disrepute”. I read Pino to hold that the subsequent seizure of the marihuana is part of the same course of conduct that resulted in the Charter breaches. That connection does not exist in the present case.
54In the present case, there is no causal or contextual connection between the violation of the defendant’s right to counsel and discovery of child pornography. I conclude that the temporal connection is remote and tenuous; before DC Pataran detained and obtained the initial incriminating answers from the defendant, DC Butler, acting independently, found a live computer in a bedroom that was accessible without a password. He noticed that its IP address was the one referenced in the search warrant and began to search it by means of a software program.
55I am guided with respect to this issue, again, by the decisions in McSweeney and Scoppel-Cessel. In McSweeney, the Court explained why it ordered a new trial:
83The state conduct was willful and in disregard of the appellant’s asserted Charter rights. It had a serious impact on those rights and on his attempt to exercise them. While society has a strong interest in the adjudication of the charges on their merits, the exclusion of the evidence will not preclude the Crown from proceeding with the charges, if it chooses to do so, relying on forensic evidence obtained from the computers themselves. This is not a case in which the Crown’s case will be gutted by the exclusion of the improperly-obtained evidence. It may be more challenging to prove, but it has not been suggested that it would be impossible.
56In Scopel-Cessel, the Court of Appeal noted that the facts were “virtually indistinguishable” from McSweeney. In that case, the police obtained a password to a computer from the defendant in violation of his Charter rights. This led to the discovery of child pornography. The Court found that the admission of the evidence would bring the administration of justice into disrepute and concluded that “[s]ince there is no other evidence on which to found convictions, acquittals on the charges must follow”.
57I am not persuaded that admission of the child pornography found on the computer by DC Butler would bring the administration of justice into disrepute. DC Pataran failed to respect the defendant’s Charter right and the Crown forfeits the right to rely on any evidence connected to that breach. The child pornography images are not captured by the threshold test with respect to section 24(2). The computer in question was found and searched by DC Butler without any information received from the defendant, directly or indirectly; nothing said by the defendant, to any officer, led the police to the seizure of child pornography from that computer.
THE ADMISSIBLE EVIDENCE IS COMPELLING
58There is compelling evidence of guilt that is independent of and unaffected by the Charter breach. As noted above, this is the background to the search in this case:
- IP address [XXXXXX] was identified as downloading and distributing child pornography on a peer-to-peer network using uTorrent 3.5.4 on 38 occasions between September 20, 2018 and November 12, 2018
- IP address [XXXXXX] was identified as being registered to M. Crump at a specific address, pursuant to a valid Production Order
- A search warrant was issued and executed at the address on November 14, 2018
59The first device searched by DC Butler was an Acer computer found next to the bed where Zachary Crump was sleeping. The search of that device revealed the following:
- The Acer computer was using IP address [XXXXXX]
- The Acer computer was live and running uTorrent 3.5.4 – the same program which had been used to download and share child pornography on each of those 38 occasions
- There was only one User Account on the Acer computer
- The username on the User Account was “zacha”. The user’s full name was “Zachary Crump”
- The User Account “zacha” on the Acer computer was password protected
- The password for “zacha’s” account was last changed on July 6, 2018
- The uTorrent 3.5.4 program on the Acer computer was stored within the user account “zacha”
- Various personal documents including Zachary Crump’s tax receipts and resume were also stored within the user account “zacha”
- 147 child pornography images were located on the Acer computer
- Child pornography BitTorrent file fragments were found on the Acer computer
60The admissible evidence constitutes proof, beyond a reasonable doubt, that the defendant used the computer in question to access, download, and make available child pornography. He is found guilty of the offences.
Released: November 8, 2022 Signed: Justice J. De Filippis
1I have not included personal internet information such as the IP address and email address in these reasons. However, the information is in evidence at this trial.