Ontario Court of Justice

Date: November 26, 2024 Court File No.: 998 22 47102193

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ROBERT BRAZEAU

Before: Justice Stephen Darroch

Heard on: October 24, 2024 Reasons for Judgment released on: November 26, 2024

Counsel: Sheena MacDougal............................................................................ counsel for the Crown Geoffrey Read ............................................... counsel for the defendant Robert Brazeau

DARROCH J.:

Introduction

1Robert Brazeau is before the court on charges of possessing and accessing child pornography.

2The police investigation commenced following receipt of information from the National Child Exploitation Crime Centre (NCECC), regarding an Internet Protocol address belonging to Cogeco Connexion, assigned to the City of Hamilton.

3Based on the information from the NCECC, Police obtained a Production order to obtain subscriber details from Cogeco for the specified IP address.

4Using the information received from the production order police obtained a warrant to search 25 Nash Road North Unit 109 in the City of Hamilton.

5Police executed the warrant on July 6, 2022, seizing 4 computers, two tablets, and two mobile phones. Two of the laptop computers seized by police were located in the bedroom where the applicant was sleeping. Following an examination of the items seized, Mr. Brazeau was charged with the offences before the court.

6Mr. Brazeau now applies to the court for an order excluding the evidence obtained.

Issues

7The applicant argues:

(1) the production order should not have been issued, and related to this, the receipt of the IP address by the police constituted a warrantless search;

(2) the search warrant should not have been issued, and in any event did not demonstrate that the site proposed would have items relevant to the investigation; and

(3) the manner of the search was unreasonable, and therefore constituted a breach of s 8 of the Charter, as a copy of the Warrant was not given to or left with the occupants.

Consideration and Analysis

Issue 1 – The Production Order

8Before issuing a Production order, the justice or judge must be satisfied by information on oath that there are reasonable grounds to believe that:

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.

9When reviewing the issuance of a judicial authorization, the standard is whether the authorizing justice, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched. The standard to be met is determined qualitatively by applying reason to the evidence, not quantitatively by attempting to apply notions based on the probability branch of mathematics: R v Cusick 2019 ONCA para 89.

10In the present case the affiant included the following information in the Information to obtain the production order:

(1) the officer reviewed file #2022-244466 from the National Child exploitation Crime centre (NCECC);

(2) an unknown suspect utilizing Bing-lmage had uploaded known child pornography;

(3) the incident had taken place on May 22nd 2022 at 04:48:47 UTC (coordinated universal time);

(4) the internet protocol address used to commit the offence was specified;

(5) the specified internet protocol belonged to COGECO CONNEXION and assigned to the city of Hamilton;

(6) the officer personally reviewed the medial file and confirmed it met the definition of chid pornography;

(7) the Royal Canadian Mounted Police describes the National Child Exploitation Crime Centre (NCECC) as being the point of contact for investigations related to the sexual exploitation of children on the internet in Canada.

(8) the officer specified directly that the source of the initial information regarding the commission of the offences was the NCECC.

11I do not consider the provision of information to a police service from the National Child Exploitation Crime Centre, which is a known entity among law enforcement services in Canada, to be the same as or analogous to the provision of a tip from a confidential informant.

12However, even when applying the Debot factors to the information provided by the NCECC in this case, I find information withstands scrutiny. The information was compelling as it contained significant detail including the specific IP address, the city of assignment, the owner of the IP address, and the precise time of the upload. The information was also current, having been received May 22, 2022, and included in the ITO on June 1, 2022. The officer corroborated the information provided as it relates to the image itself and whether it met the definition of child pornography – which it very obviously did. The inclusion of the fact that the RCMP describes the National Child Exploitation Crime Centre (NCECC) as being the point of contact for investigations related to the sexual exploitation of children on the internet in Canada, adds to the overall assessment of credibility, particularly when considered along with the detailed nature of the information which was corroborated by an independent review of the image in question.

13Having considered the evidence and information in totality, I find the Production Order was properly issued in the circumstances, and certainly the issuing justice could have reasonably issued the production order.

14The applicant argues further that the receipt of the IP address itself constitutes a search and is therefore protected by s. 8 of the Charter. The Applicant relies on R. v. Bykovets, 2024 SCC 6, which held that an IP address attracts a reasonable expectation of privacy and so a request by the state for an IP address is a search under s. 8 of the Charter.

15In that case as part of an investigation into fraudulent online purchases from a liquor store, police contacted the third-party processing company that managed the store’s online sales and obtained the IP addresses used for the purchases. Police then obtained a production order compelling the Internet service provider (“ISP”) to disclose the name and address of the customer for each IP address.

16I find the circumstances of the present case are completely distinguishable from the circumstances in Bykovets.

17In Bykovets the Supreme Court of Canada specified that to establish a breach of s. 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable. Only the first requirement — whether the request for the IP addresses was a search — was at issue in the case. The police sought the IP addresses in order to investigate further, specifically to discover the associated ISP, to identify the person involved. The majority of the Supreme Court of Canada found that these actions constituted a search and was therefore subject to s 8 protections. Such a finding is inextricably linked to the underlying facts which include positive action on the part of the Police investigators to seek out the IP address in furtherance of their investigation.

18In the present case the police did not request any information from anyone; rather, the Hamilton Police Service was a passive recipient of the IP address details; Further the IP address was specifically identified as being engaged in criminal activity. The police received both the IP address and information about the use of that IP address in committing the offence of accessing child pornography.

19The passive receipt of this information is not a search and therefore not subject to the constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search.

20To hold otherwise would effectively require the police to ignore information regarding the commission of child pornography offences and would unduly hamstring the investigative process. If the applicant’s position was correct, the police would need to seek production orders in the abstract -- which would necessarily not be issued as the ITOs would lack specificity and sufficient information to find on reasonable and probable grounds that an offence was ever committed.

21Extending the applicant’s position further would mean once information was received by the police, they would need to somehow seek judicial authorization after the fact, or seek judicial authorization to receive the same information a second time – and notably the application for the judicial authorization to receive the information a second time could not contain any information about the details previously provided, which again would result in inadequate details to issue the authorization. Such a situation would be completely unworkable and would unnecessarily roadblock the investigative process.

22Given the fact that inaction and passive receipt is simply not a search, and given the eventualities which would result if passive receipt in these circumstances was a search, I find that the police are not required to seek judicial authorization to passively receive information from the National Child Exploitation Crime Centre, nor are they required to seek judicial authorization after the fact.

23As a result, I find s 8 is not engaged in the receipt of the IP address in these specific circumstances of this case.

Issue 2 – The Search Warrant

24The applicant argued there was no evidential basis to reasonably believe that the "Items To Be Searched For" per Appendix "A" of the Information to Obtain the Search Warrant will be found at unit #109 at 25 Nash Road North, Hamilton, Ontario.

25Having now reviewed the same unredacted Information to Obtain the warrant that the issuing judge reviewed, I find the Information to Obtain the search warrant has sufficient details particularizing the search of 25 Nash Road North Unit 109. Specifically, the results of the production order set out in paragraph 13 of the ITO detail subscriber information including the name, date of birth, and address with specific reference to Unit 109 at 25 Nash Road North Hamilton Ontario.

26I find therefore an appropriate evidentiary basis for the warrant to have been issued for that specific address.

27I have also considered the overall sufficiency of the ITO and find that the issuing justice had a sufficient basis to issue the warrant.

Issue 3 – The Manner of Search

28To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

29The applicant agues that the lawful execution of a search warrant requires a copy of the warrant be provided upon entry of the police into the site searched.

30Section 487.093 of the Criminal Code sets out the obligations on the part of officers executing search warrants which includes an obligation to provide a copy of the warrant to any person who is present and ostensibly in control of the place to be searched.

31However, s 487.093 did not come into force until January 14, 2023 – 6 months after the execution of the warrant in this case on July 6, 2022.

32At that time, the execution warrants was governed by s 29 of the Criminal Code and the applicable common law. Section 29 of the Criminal Code stipulates:

29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

33R. v. Cornell, 2010 SCC 31, the Supreme court of Canada noted the purpose of s. 29(1) of the Code is to allow the occupant of the premises to be searched to know why the search is being carried out, to allow assessment of his or her legal position and to know as well that there is a colour of authority for the search, making forcible resistance improper. The court found further that the purposes are fully achieved by insisting that the warrant be in the possession of at least one member of the team of officers executing the warrant.

34In the present case Detective Christobal Brea was the team lead for the execution of the search warrant at 25 Nash Road North, unit 109.

35Detective Brea testified on the application, and I accept his evidence that he had a copy of the warrant with him when he entered the premises to be searched. At the hearing Detective Brea set out his usual practice of showing a copy of the warrant to the occupants and be believes he did so in this case. Normally he gives a copy of the warrant to the occupants but did not do so in this case as the occupants decided to leave – which was an option they had in accordance with Det Brea’s described explanation to them regarding the search process. Detective Brea then returned to the apartment about 1 hour and 40 minutes after executing the warrant and provided a copy of the warrant to the applicant’s mother – the leaseholder and primary tenant of the unit.

36I accept that the officer did not act in accordance with his usual practice as he did not provide a copy of the warrant to the occupants prior to the search. He did not maintain his usual practice as the occupants opted to leave which understandably resulted in him neglecting to provide a copy of the warrant to them.

37However, his failure to maintain his usual practice does not mean he fell below the required standard, nor does it mean that the search was unreasonable.

38I find his usual practices went beyond requirements of a lawful search at the time – and are in accordance with the new requirements set out in s 487.093.

39Applying the applicable standard, I find that Det Brea acted in accordance with his obligations as set out in s 29(1) of the Criminal Code, as interpreted by the Supreme court of Canada in Cornell.

40As a result, I find the applicant has not established to any degree that the search was conducted in an unreasonable manner.

Conclusion

41For the reasons set out I find the applicant has not established a breach of his s. 8 rights and the application is therefore dismissed.

November 26, 2024

Signed: Justice Stephen Darroch