WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court: Court of Appeal for Ontario

Date: December 6, 2019

Docket: C63580 & C66586

Panel: Strathy C.J.O., Watt and Zarnett JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

L.E.

Appellant

Counsel

Eva Taché-Green, Lance Beechener and Arthur Ayers, for the appellant

Katie Doherty, for the respondent

Hearing

Heard: May 29, 2019

On appeal from the conviction entered by Justice Catherine Kehoe of the Ontario Court of Justice, on December 16, 2016 and from the sentence imposed on March 14, 2017.

Decision

Watt J.A.:

Introduction

[1] L.E. ("the appellant") is a foreign national subject to a removal order. She used her cell phone to take pictures. Some pictures were of her children. Some were of the appellant. She sent these pictures electronically to her husband.

[2] An officer from the Canadian Border Services Agency ("CBSA") seized the appellant's cell phone. When the officer examined the cell phone, he saw some of L.E.'s photographs of herself and of her children. In some of the photographs, the appellant was naked. In others, her children were naked.

[3] The CBSA officer stopped his review of these photographs and called the police.

[4] Police charged the appellant with making, distributing and possessing child pornography. A judge found the appellant guilty of each count and entered convictions on the counts of making and distributing child pornography. The judge imposed a term of imprisonment to be followed by a period of probation.

[5] The appellant appeals her conviction and sentence, seeking a variation in a term of the probation order by which she remains bound.

[6] These reasons explain why I have concluded that both appeals fail.

THE BACKGROUND FACTS

[7] The appellant advances several grounds of appeal against conviction. To appreciate these grounds, it is necessary to describe the circumstances in which the appellant's cell phone was seized and examined by CBSA officers before it was turned over to the police and a more extensive search of its contents conducted under warrant.

The Entry into Canada

[8] In early 2014, the appellant, her husband, A.E., and their three young children fled Nigeria and made their way to the United States. The appellant had been subjected to female genital mutilation in Nigeria and did not want her daughters to be subjected to the same form of mistreatment.

[9] On July 1, 2014 the appellant and her daughters entered Canada. A.E. remained in the United States. Canadian immigration records do not disclose that the appellant's entry to Canada with her children was lawful.

The Claim for Asylum

[10] Shortly after her unlawful entry into Canada, the appellant sought asylum in Ottawa as a refugee. Her claim, advanced on her own and her children's behalf, failed. A removal order, effective February 24, 2015, followed.

The Removal Process

[11] In February 2015, a CBSA officer was assigned to facilitate the removal of the appellant and her children from Canada. The officer, Bradley Hansen, began monthly meetings with the appellant. Hansen directed the appellant to provide him with her and her children's passports or obtain new passports from the Nigerian High Commission. Passports were required for removal purposes.

[12] The appellant denied having any passports. She claimed that her passports were with the smuggler who had brought her and her children into Canada from the United States. The appellant told Hansen the Nigerian High Commission staff said they could not issue new passports for her and her children without her husband's signature. She said she did not know the whereabouts of her husband. She had not spoken to him for a year and had no means of contacting him.

The Anonymous Tip

[13] In mid-July 2015, CBSA staff received an anonymous tip that the appellant and her husband were living together in Canada, or that the husband was in fact living in Canada. The tip included pictures of current and valid passports for the appellant, her husband and their children; current and valid American visas; and copies of Nigerian identification certificates with pictures of the appellant and her husband in two different names.

[14] During a meeting with the appellant two weeks after the CBSA received the anonymous tip, the appellant repeated that she had not spoken to her husband in over a year.

The Confrontation

[15] At a meeting on August 19, 2015, Officer Hansen confronted the appellant with the substance of the anonymous tip. He told her that her husband had made a refugee claim in Canada. The appellant denied the substance of the tip. She began to wail loudly and threw herself on the floor of the office. She continued in this way for about 30 or 45 minutes. Hansen instructed her to return to the office the next day.

The House Check

[16] After the appellant left the CBSA offices, Hansen, together with three other officers, went to the appellant's residence in search of her husband. On the first visit, the appellant was not home. No one responded to Hansen's knock on the door. A neighbour told the officers that he recognized a photograph of the appellant's husband.

[17] When officers returned an hour later, the appellant answered the door. The CBSA officers searched the house to determine whether A.E. was there. He was not. The officers left.

The Final Meeting

[18] The following day, August 20, 2015, the appellant returned to the CBSA office. She brought her baby daughter with her. Officer Hansen arranged to have a female colleague, Officer Hamel, with him during his meeting with the appellant.

[19] When asked again by Hansen about her passports, the appellant did not resile from her earlier accounts. She said that she did not have or know the location of her passport. She had not spoken to her husband and knew nothing of his whereabouts.

[20] Officer Hansen arrested the appellant. She was inadmissible to Canada and the subject of a removal order. In Hansen's view, the appellant was trying to thwart her removal from Canada by not producing her passports and claiming she did not know her husband's whereabouts. These circumstances caused Hansen to conclude the appellant would not likely appear for removal.

[21] Advised that she was under arrest, the appellant threw herself on the ground and became hysterical, repeating her conduct from the previous day. Twice Hansen offered the appellant the opportunity to contact counsel. Twice, the appellant declined. She made it clear in her responses that she wanted to call her husband, not to speak to counsel.

The Cell Phones

[22] During the arrest process and search incident to it, CBSA officers located two cell phones: a Blackberry and an LG Nexus. They seized the phones intending to search them for evidence that the appellant had valid passports and had been in communication with her husband. This information would assist in proving the appellant was a flight risk and would justify her detention pending removal.

The Request for Counsel

[23] After her arrest, the appellant was lodged in a holding cell. Later that morning, she asked to speak to her counsel. The officers left a voicemail for counsel, then waited for counsel to return their call.

The Telephone Calls

[24] While awaiting a return call from the appellant's counsel, CBSA officers agreed to permit the appellant to call her husband. The appellant explained that her husband's phone number was saved on her LG Nexus phone. The officers advised the appellant that they would not return her cell phone. Instead, they would retrieve her husband's phone number from her cell phone while she was there, then call the number from a landline in the CBSA office so that she could speak to her husband.

[25] The appellant provided the officers with her password and instructions about where her husband's phone number could be located. An officer retrieved the number, called it on the office landline, and handed the phone to the appellant so that she could speak to her husband. Her husband asked to speak to a CBSA officer. He asked the officer whether the appellant would be released if the passports were provided.

[26] After the call with her husband concluded, the appellant spoke to her immigration counsel for about 30 minutes.

The Cell Phone Searches

[27] Officer Hansen testified that he told the appellant that her phones would be searched. The officer could not recall whether he provided this information to the appellant before or after the appellant spoke to her lawyer. The officer made no note of this conversation.

[28] Officer Bressard searched the pictures, call logs, text messages, and videos on the appellant's Blackberry. The device was not password-protected. She relied on s. 16(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("the IRPA") as her authority for the search. She found nothing. The officer did not search the LG Nexus phone. Both phones were placed in an evidence bag and transported to the local detention centre with the appellant when she was lodged there.

[29] With the aid of the password the appellant had provided on arrest, Officer Bressard searched the LG Nexus phone after recovering it from the appellant's property at the detention centre. In the contact list, she found separate phone numbers for "My love" and "My husband's number". Text message conversations with one of those numbers had been deleted. Thinking that other information relevant for s. 16(3) IRPA purposes may have been deleted, the officer turned the LG Nexus phone over to a digital forensic examiner at the CBSA.

The Detention Order

[30] Less than a week after her arrest, the appellant was ordered detained.

The Child Pornography

[31] After the appellant's first detention review hearing had concluded, officers Bressard and Hansen delivered the LG Nexus cell phone to Renee Pharand, a digital forensic examiner at the CBSA. Bressard and Hansen had noticed on their perusal of the phone that some information appeared to have been deleted, a chat history with one of the contacts "My love" or "My husband's number". Pharand, unlike the other officers, was able to locate deleted information.

[32] Renee Pharand took a forensic image of the LG Nexus cell phone, then examined the live data on that image. When Pharand examined a "Pictures" file in search of pictures of the appellant's husband, he found some photographs which he considered could amount to child pornography. He stopped his search and called the police. As Pharand explained, his search was regulatory in nature, not criminal.

The Police Search

[33] Under a Criminal Code, R.S.C. 1985, c. C-46 search warrant, police seized the LG Nexus phone. Sergeant Reed, an expert in forensic examination of computers and related devices, forensically imaged the contents of the LG Nexus phone. The officer provided a report on ten images created, stored, and distributed on the cell phone. Some were simply taken by the appellant on her phone and stored there. Others were distributed to her husband in a chat on the WhatsApp application. The officer identified a binder of 129 images filed by the Crown at trial which are said to constitute child pornography.

The Grounds of Appeal

[34] The appellant appeals her conviction on five grounds. She submits the trial judge erred:

i. in finding that the search of the appellant's cell phone was not unreasonable and thus not in breach of s. 8 of the Charter;

ii. in failing to exclude evidence of the results of the cell phone search under s. 24(2) of the Charter;

iii. in rendering a verdict that was unreasonable on the evidence adduced at trial;

iv. in misapprehending evidence material to the findings of guilt; and

v. in demonstrating a reasonable apprehension of bias during the sentencing proceedings that affected the fairness of the trial.

[35] The appellant also seeks leave to appeal her sentence on a single ground: reasonable apprehension of bias on the part of the trial judge in the conduct of the sentencing proceedings which warrants a variation of the probation order made at trial.

THE APPEAL FROM CONVICTION

Ground #1: The Lawfulness of the Cell Phone Search

[36] Images on the appellant's cell phone formed the basis of the child pornography allegations. A CBSA officer first discovered these images during a search of the appellant's phone. The police were notified, a warrant obtained, and the appellant subsequently arrested and charged.

[37] At trial, the appellant challenged the lawfulness of the CBSA officer's search of her cell phone and the admissibility of the photographs resulting from this search. As I explain, I would reject this ground of appeal.

The Background Facts

[38] Some of the circumstances which led to the seizure and subsequent search of the appellant's LG Nexus cell phone have already been outlined and need not be repeated. Some further detail will complete the background essential to an understanding of the ground of appeal advanced and how I propose that it be decided.

The Home Visit

[39] On August 19, 2015, about three weeks after the appellant had completed a statutory declaration claiming that she had no knowledge of her husband's location and had not seen him for over a year, CBSA officers confronted her with some contradictory information. That information included disclosure of her husband's application for asylum as a refugee, which incidentally made it clear that CBSA officers knew that her husband was in Canada. The officers also revealed that the agency had received an anonymous tip that included copies of current valid passports and two sets of identification certificates in different names for each of the appellant and her husband. Further, the tip included a claim that the appellant and her husband had been seen together in Canada.

[40] In an unannounced visit to the appellant's home later that same day, CBSA officers asked whether they could enter and look through the premises for her husband. The appellant agreed. The officers noticed that the main floor of the home was unfurnished. They did not see the appellant's husband or any sign of him.

[41] According to the appellant, the officers entered her home as soon as she opened the door on hearing their knock. They told her that they were there to search the home. She did not invite the officers in, simply stood by, as they directed her, for about 20 minutes while the search progressed. No one told the appellant that she could refuse the officers' entry to her home.

The Arrest

[42] When the appellant reported to the CBSA office the following day, August 20, 2015, Officer Hansen made it clear that he considered that she was trying to thwart her removal by refusing to bring any current passports or to apply for new passports for herself or her children. Passports were essential for removal. Officer Hansen told the appellant that it was her last opportunity to tell the truth about her circumstances. The appellant repeated her story about the lack of passports, her lack of awareness of her husband's location and the absence of any communication with him. Hansen arrested her under the IRPA. To calm her down, the appellant was lodged in a holding cell and told of her right to counsel which she initially declined to exercise. The appellant said that she wanted to speak to her husband.

The Cell Phone Seizure

[43] After CBSA officers arrested the appellant under the IRPA, they seized two cell phones from her relying on s. 140 of the IRPA as their authority to do so. The officers considered that the phones might afford evidence of the appellant's failure to comply with the IRPA and of her efforts to thwart her removal from Canada, including contact with her husband and the location of essential identification documents.

[44] Officer Bressard turned on the appellant's Blackberry which was not password protected. She looked through some pictures, call logs, texts, and videos for information about passports, travel documents and contact between the appellant and her husband. She found nothing. In the officer's view, s. 16(3) of the IRPA provided authority for this examination. She did not search the LG Nexus phone at that time.

[45] The appellant insisted on calling her husband but claimed not to know his number. She told the officers that his number was in her cell phone. She provided her password. Officers searched her contacts list, obtained the number, called it on a CBSA landline and permitted her to talk to her husband. An officer told the appellant that they would be searching her phones. She responded "Go ahead". The appellant denied that any such conversation took place. No reference to this effect appears in the officer's notes.

[46] The appellant testified that she did not talk to the officers about her cell phones. She admitted to providing her password for the LG Nexus phone to Officer Hamel. She spelled it out so that Hamel could locate her husband's phone number. The appellant denied that Officer Hansen told her that they would be searching the telephone for documents. She further denied telling the officers to go ahead and search the phones. She said no one ever told her that she could contact a lawyer or the Nigerian High Commission.

The LG Nexus Phone Search

[47] The appellant's first detention review hearing was on August 24, 2015. That same day, Officer Bressard searched the contacts list in the appellant's LG Nexus cell phone. There she found two separate contact names and numbers for the appellant's husband under "My love" and "My husband's number". Some messages remained. Others had been deleted. In the officer's view, the contacts and photos put the lie to the appellant's claim about when she and her husband had arrived in Canada.

The Forensic Examiner

[48] The forensic examiner, Renee Pharand, searched the LG Nexus phone for evidence that the appellant's husband was in Canada before the date in his refugee claim of May 2015. He was looking for information about passports, other identity or travel documents showing the names and photographs or other contacts between July 2014 and August 2015.

The Ruling of the Trial Judge

[49] At trial, the appellant sought exclusion of the evidence, in particular the photographs alleged to constitute child pornography, obtained through search of her LG Nexus cell phone. This evidence, the appellant contended, was obtained in breach of her rights guaranteed by ss. 7, 8, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. In addition, the appellant alleged that a discrete breach of her s. 8 right had occurred when officers entered her home without advising her of her right to deny them entry.

[50] Critical to success on her claim of Charter infringement was acceptance of the appellant's testimony where it conflicted with that of the CBSA officers. However, the trial judge rejected the appellant's evidence as she explained in para. 188 of her reasons:

The above examples demonstrate the contradictions and internal inconsistencies of Ms. L.E.'s evidence. As well, the examples demonstrate Ms. L.E.'s willingness to tailor her evidence and mislead the Court to support her allegations of Charter breaches. I reject Ms. L.E.'s evidence that she was not told of her right to speak with a lawyer upon arrest, and that she was not given the opportunity to speak with counsel concerning her arrest on August 20, 2015. I reject her evidence that Officer Hanson did not inform her that he was seizing the phones to search for evidence of non-compliance with IRPA [sic]. I reject her evidence that she was not told of the criminal charges that she would be appearing in Court for on September 23, 2015 and that she was not provided the opportunity to speak with counsel concerning those charges. Therefore Ms. L.E. has not proved on a balance of probabilities that her section 7, 10(b), 10(a) and 10(b) [sic] (September 23, 2015) rights were breached.

[51] In lengthy reasons, the trial judge rejected all claims of Charter infringement in connection with the searches of the appellant's cell phones, in particular, the LG Nexus phone on which a subsequent warranted search located images said to constitute child pornography. The trial judge did find a breach of s. 8 in connection with the search of the appellant's home in an attempt to locate her husband. The basis of this finding was that the consent relied upon to make the search s. 8 compliant was vitiated because of a failure to advise the appellant of her right to refuse entry.

[52] Despite the s. 8 Charter infringement relating to the house search, the trial judge admitted the evidence collected during the search of the appellant's cell phones, in particular, the LG Nexus phone.

The Arguments on Appeal

[53] The appellant challenges the trial judge's finding that the CBSA officers were authorized by law to search her LG Nexus cell phone.

[54] First, the appellant argues she did not consent to the LG Nexus cell phone search by providing her password to CBSA officers. The evidence relied upon to ground the finding of consent was ripe with inconsistencies and implausibility. The appellant's consent was limited to retrieval of her husband's telephone number. And the appellant's consent was involuntary and uninformed.

[55] Second, the appellant contends neither s. 16(3) nor s. 140 of the IRPA afford a lawful basis for the cell phone search. The provisions of the IRPA must be interpreted in a way consistent with the Charter. As warrantless searches, the cell phone searches were prima facie unreasonable. They were not authorized by s. 16(3) of the IRPA because what was sought was evidence that the appellant's husband, not the appellant herself, was not in compliance with the Act. The searches went beyond what is permitted incident to an arrest under the IRPA. The fact that s. 138(1) of the IRPA incorporates the search warrant provisions of the Criminal Code suggests that s. 16(3) of the IRPA invoked in this case does not permit warrantless searches.

[56] The appellant does not challenge the reasonableness of common law consent or IRPA search authority. Nor does she contest the reasonableness of the search itself.

[57] The respondent rejects any suggestion that the search of the appellant's cell phone violated s. 8 of the Charter.

[58] The respondent says the appellant misinterprets the trial judge's analysis on consent as it relates to the lawfulness of the search. The trial judge's conclusion is based entirely on the premise of statutory authority, not the appellant's consent. Provision of the password did not provide or alter the officers' authority to search the phone.

[59] The respondent agrees with the trial judge. Section 16(3) of the IRPA authorized the CBSA officers:

i. to compel the appellant to disclose her password; and

ii. to search the appellant's cell phone for the purposes set out in s. 16(3) of the IRPA, among them, to establish a foreign national's identity and compliance with the requirements of the IRPA.

[60] The respondent adds that the appellant's submission that the authority provided by s. 16(3) must be interpreted narrowly to comply with Charter principles is not well-founded. The constitutionality of s. 16(3) is not in issue in this case. And, regardless, Charter values as an interpretive tool only play a role where there is genuine ambiguity in the legislation. No such ambiguity resides in s. 16(3) and none was advanced here.

The Governing Principles

[61] Fundamental principles of the law governing searches and seizures by state actors are at work in this case and dispositive of this issue.

[62] Conduct by state actors which amounts to a search or seizure is subject to the requirement of reasonableness in s. 8 of the Charter. To be reasonable:

i. a search or seizure must be authorized by law;

ii. the authorizing law must be reasonable; and

iii. the search must be carried out in a reasonable manner.

See, R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[63] The appellant does not challenge the reasonableness of the law or the search. The sole s. 8 question on this appeal is was the CBSA search of the appellant's cell phone authorized by law?

[64] To be authorized by law, the search must be authorized by a specific statute or common law rule; the search must meet the procedural and substantive requirements of the law; and the search must not exceed any subject-matter or location limits imposed by the law: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 12.

[65] Courts do not consider the constitutionality of the law at this stage in the s. 8 analysis. Infusing Charter principles as part of the interpretation analysis would, "effectively pre-empt any judicial review of the constitutional validity of the statutory provision": R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 15.

The Principles Applied

[66] I would not give effect to this ground of appeal. As I explain below, the CBSA officer's search of the appellant's cell phone was authorized by ss. 140 and 16(3) of the IRPA. Given this finding, it is unnecessary to address whether the CBSA officer had authority to search the appellant's cell phone under the common law consent search doctrine.

[67] Section 16(3) of the IRPA gives CBSA officers a statutory search power:

An officer may require or obtain from a permanent resident or a foreign national who is arrested, detained, subject to an examination or subject to a removal order, any evidence — photographic, fingerprint or otherwise — that may be used to establish their identity or compliance with this Act.

[68] Section 16(3) imposes procedural and substantive limits on the CBSA officer's search power. Under this provision, a CBSA officer can conduct a search if:

i. the subject of the search is a permanent resident or foreign national;

ii. the subject of the search is arrested, detained, or subject to an examination or removal order; and

iii. the search is to establish the subject's identity or determine compliance with the IRPA.

[69] But s. 16(3) does not limit the subject matter of the search. It allows the CBSA officer to obtain "any evidence" so long as that evidence is obtained to establish the subject's identity or determine compliance with the IRPA.

[70] In my view, s. 16(3) authorized the CBSA officer's search of the appellant's cell phone. The appellant was a foreign national; she had been arrested and detained and was subject to a removal order. The CBSA officers sought evidence that the appellant was attempting to contravene her removal order. They sought evidence from the LG Nexus cell phone in the appellant's possession on arrest, to determine the appellant's compliance (or lack thereof) with the IRPA, having information that could support a reasonably grounded belief the appellant was obstructing her removal from Canada.

[71] The appellant told CBSA officers that her husband's phone number was on the LG Nexus cell phone. It was open to the officers to infer that her cell phone was likely to reveal details of the contact between the appellant and her husband relevant to the true state of affairs surrounding their entry into Canada and attempts to circumvent their removal.

[72] The appellant hinged her s. 8 argument on whether the search was authorized by law. Because s. 16(3) of IRPA authorizes the search of the appellant's cell phone, the argument fails.

Ground #2: Exclusion of Cell Phone Search Evidence

[73] The appellant recruits s. 24(2) of the Charter to exclude photographs found on a search of her cell phone as evidence against her.

[74] As I have already explained, I am satisfied that the search of the appellant's LG Nexus cell phone by CBSA members did not violate s. 8 of the Charter. It follows that:

i. the CBSA search cannot serve as the infringement portal to access s. 24(2) of the Charter as an exclusionary mechanism; and

ii. references to the fact, nature, and results of the CBSA search need not be excised from the ITO on the basis of which police obtained a Criminal Code warrant to search the phone.

[75] The appellant does not otherwise challenge the issuance of the Criminal Code search warrant or the manner in which the search was carried out under its auspices.

[76] The trial judge found a breach of s. 8 occurred when, on the day prior to her arrest, CBSA officers searched the appellant's home to determine whether her husband was there but did not advise the appellant that she could refuse them entry. I do not understand the appellant to say that this infringement, on its own, is sufficient to warrant exclusion of the evidence obtained by the cell phone search conducted after her arrest by CBSA officers or under warrant days later by police.

[77] What I have said is sufficient to dispose of this ground of appeal. However, in the event that I am wrong about the reasonableness of the CBSA search of the appellant's LG Nexus cell phone, I will consider the admissibility of the photographs found during the search.

The Arguments on Appeal

[78] The appellant says that the evidence obtained by the CBSA search of her cell phone should be excluded under s. 24(2) of the Charter because

• the breach was serious: CBSA officers searched the appellant's cell phone without a warrant, without extenuating circumstances, or need for urgency. They did not consider applying for a warrant and the fact that all officers held the same expansive view of their search powers reveals an approach that is systemic, thus aggravating the breach.

• the breach had a significant impact on her Charter-protected interests: the appellant had a significant privacy interest in the information contained in her password protected cell phone. The search was extensive and involved state actors rummaging around in intensely personal information involving intimate details of her life and that of her children.

• These factors point strongly towards exclusion and are not overcome by societal interest in the trial of child pornography offences on their merits with evidence of unimpeachable reliability.

[79] The respondent takes a contrary position. The respondent asks this court to hold admissible evidence obtained by the CBSA search of her cell phone because

• the breach falls at the minimal end of the spectrum: CBSA officers conducted the search in good faith. They reasonably relied on their authority under s. 16(3) of the IRPA. No binding precedent mandated otherwise. Their search was regulatory. That evidence of crime was uncovered was pure happenstance, reflected in immediate cessation of the search and report to those charged with enforcement of the criminal law.

• the search had an attenuated impact on the appellant's privacy interests: the appellant was inadmissible to Canada and had a limited expectation of privacy as a person who was subject to an enforceable removal order. With or without the appellant's provision of the password, CBSA members could unlock the phone and, in all the circumstances, search it for information relevant to the removal process. The search was conducted in a reasonable manner.

• there is a significant public interest in the prosecution of child pornography offences. All the more so when the available evidence is real, reliable, and crucial to a just determination of the issues in play.

[80] According to the respondent, a proper application of the R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 inquiry compels this court to admit the evidence obtained by the cell phone search.

The Governing Principles

[81] Applications to exclude evidence under s. 24(2) of the Charter require a court to assess and balance the effect of admitting the evidence on society's confidence in our justice system. This exercise, which requires consideration of all the circumstances of the case at hand, has regard to three lines of inquiry:

i. the seriousness of the Charter-infringing state conduct;

ii. the impact of the Charter-infringing state conduct on the Charter-protected interests of the accused; and

iii. society's interest in the adjudication of the case on its merits.

See Grant, at para. 71.

[82] The first inquiry involves evaluating the gravity of the state conduct that led to the breach to preserve public confidence in the rule of law and its processes: Grant, at para. 73. Some extenuating circumstances, like "good faith" on the part of the state agent, will reduce the court's need to disassociate itself from that conduct. We must not however encourage ignorance of Charter standards or equate negligence or wilful blindness with good faith. This is especially true where the Charter-infringing state conduct is systemic or part of a pattern of abuse: Grant, at para. 75.

[83] The second line of inquiry requires us to evaluate the extent to which the breach actually undermined the accused's Charter-protected interests, in this case, her privacy. An unreasonable search that intrudes on an area in which the person reasonably enjoys a high expectation of privacy is more serious than one that does not: Grant, at paras. 76-78.

[84] It is uncontroversial that cell phone searches may constitute very significant invasions of privacy. But not every search of a cell phone is inevitably a significant intrusion on privacy rights: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 54.

[85] The third line of inquiry is concerned with whether the truth-seeking function of the criminal trial process would be better served by admission of the constitutionally tainted evidence or by its exclusion. The reliability of the evidence and its importance to the prosecution's case are important considerations at this stage of the analysis: Grant, at paras. 81, 83.

The Principles Applied

[86] If, contrary to my conclusion, the CBSA search of the appellant's cell phone breached s. 8 of the Charter, I would nonetheless find the evidence obtained admissible. This ground of appeal also fails.

[87] As Grant teaches, the s. 24(2) analysis is contextual. It must account for all the circumstances.

[88] The first line of inquiry, the seriousness of the Charter-infringing state conduct, favours admission of the evidence. The CBSA members relied in good faith on a statutory provision in a regulatory statute to conduct the search for evidence that the appellant was attempting to circumvent Canada's immigration laws. The search was terminated as soon as evidence of a potential criminal offence was discovered, police notified, and a warrant obtained. What occurred was an honest mistake, reasonably made, not state misconduct that requires evidentiary exclusion. Importantly, the appellant did not challenge the constitutionality of the statutory provision the CBSA officers relied on for their search; nor did the appellant challenge the reasonableness of the search itself.

[89] The second line of inquiry, the assessment of the impact of the state conduct on the appellant's Charter-protected interests, also favours admission of the evidence. Any cell phone search has the potential to significantly invade informational privacy interests. But that is doubtfully so in this case. Recall that here, as in Fearon, the appellant did not challenge the search warrant subsequently issued to the police, which yielded the photographs that ultimately formed the subject-matter of the appellant's charges. The results of the CBSA search were an integral component of the ITO on which the issuance of the warrant was based. The unchallenged warrant mitigates against the seriousness of the breach: Fearon, at para. 96.

[90] The final line of inquiry, whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the constitutionally tainted evidence, also favours admission. This evidence is real, its reliability impervious to cross-examination, and it is crucial to the Crown's case, an integral component of the actus reus. Moreover, the offences charged, child pornography, are among those with a significant public interest in prosecution and trial on the merits.

[91] Because all three branches of the Grant inquiry favour admission of the evidence, I am satisfied that, even if the CBSA officer's search of the appellant's cell phone violated the appellant's s. 8 Charter rights, the results of the search – the allegedly pornographic images – were properly admitted in evidence.

[92] I dismiss this ground of appeal.

Ground #3: Unreasonable Verdict

[93] The appellant argues the trial judge's finding that the appellant's photos depicting the sexual organs and anal regions of her naked children were taken "for a sexual purpose" within s. 163.1(1)(a)(ii) of the Criminal Code, a pivotal issue at trial, was unreasonable either on the evidence adduced at trial or, alternatively, when the trial record is supplemented by the appellant's proposed fresh evidence.

[94] For the reasons that follow, I would not give effect to either argument. Consequently, this ground of appeal fails.

Reasonableness of the Verdict on the Evidence at Trial

The Trial Judge's Reasons

[95] A brief reference to the trial judge's reasons for finding the Crown had proven the essential elements of the offences charged provides the necessary context to consider this argument.

[96] The trial judge provided lengthy written reasons for her decision. After a detailed recital of the arguments advanced by counsel at trial, the judge turned her attention to the appellant's testimony.

[97] The appellant had denied taking the photographs for any illicit sexual purpose. She said the photographs were taken out of a concern for her children's health and, in particular, so that she could show their condition to her husband and determine if medical attention was required. The trial judge rejected this evidence. She found the appellant was not a credible witness and gave unreliable testimony. The trial judge did not believe the appellant nor did her testimony raise a reasonable doubt about her guilt.

[98] The trial judge then considered the other evidence adduced at trial to determine whether, taken as a whole, it established the essential elements of the offences charged beyond a reasonable doubt.

[99] The trial judge found the appellant had taken photographs of her children, then aged 1, 3, and 5 years. The dominant characteristic of those photographs was the depiction of the children's sexual organs – the vagina and penis – and anus. In some photographs, the appellant herself was naked, engaged with her nude or partially-nude children. One image depicted the youngest child very close to and facing the appellant's naked vagina. Another image depicted the appellant's naked buttocks touching her son's head. A further photograph showed the appellant naked on bunk beds with her naked daughters. Her older daughter had her legs spread with the image focused on her vagina and anus. In several images, the children were bent over exposing their anal regions in plain view.

[100] The trial judge also considered that the appellant sent the images to her husband ("My love new") shortly after their creation. Her husband texted back "Wowwww". Most of the images created and sent to her husband appeared to have been posed, exposing the children's sexual organs and anus. None of the accompanying or responding texts mentioned any medical issue or condition.

Arguments on Appeal

[101] The appellant says the trial judge failed to consider whether the balance of the evidence established the prohibited purpose as the only reasonable inference available from the evidence taken as a whole. The appellant points to the following evidence to support her position that the verdict is unreasonable:

• the photographs at issue were photographs of children taken by their mother and sent to their father;

• the photographs presented at trial were an insignificant percentage of hundreds if not thousands of photographs of the children taken by their mother and shared with their father;

• some photographs were posed but none in a sexually explicit way or involving sexual contact;

• the photographs were unaccompanied by any captions or extraneous indicia;

• the overwhelming volume of innocuous images;

• the case for the Crown focused upon a small number of images that were not part of a larger collection of sexualized images, not accompanied by captions indicative of their purpose, not distributed to the outside world, and not offered or exchanged for money; and

• the responsive messages from the appellant's husband lack any discernible English meaning, let alone one revealing a prurient sexual purpose.

[102] The appellant argues the inference of sexual purpose was thus not the only reasonable inference available from the collection taken as a whole. Without more, the trial judge's rejection of the appellant's testimony does not mandate a finding of sexual purpose.

[103] The respondent reminds this court that when the reasonableness of a verdict is challenged, the appellant must demonstrate that no trier of fact, acting judicially, could conclude that the appellant's guilt was the only reasonable conclusion on the totality of the evidence. The appellant has not met this standard. Nor can the appellant establish the trial judge has drawn an inference or made a finding of fact that is plainly contradicted by the evidence relied upon in support of that inference or finding, or one shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

[104] The respondent says that the photos in issue have as their dominant characteristic the depiction of the sexual organs and anal region of children under 18 years old, and the appellant is naked in many photos herself. The trial judge considered the relevant factors and reached a conclusion reasonably available on the evidence taken as a whole. Her conclusion is entitled to deference and ought not to be disturbed.

The Governing Principles

[105] Section 686(1)(a)(i) of the Criminal Code permits this court to set aside a guilty verdict if the verdict is unreasonable or cannot be supported by the evidence.

[106] A verdict may be unreasonable if, on the whole of the evidence adduced at trial, no properly instructed jury, acting judicially, could reasonably have rendered the verdict: R. v. Yebes, [1987] 2 S.C.R. 168, at p. 181; R. v. Biniaris, 2000 SCC 15, at paras. 36-42. An appellate court's function under s. 686(1)(a)(i) extends beyond merely finding there is evidence to support a conviction. We must re-examine and, to some extent, re-weigh and consider the effect of the evidence to determine whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. In this exercise we do not substitute our individual or collective views of the evidence for the view of that same evidence taken by the trier of fact: Yebes, at paras. 37-42.

[107] A verdict may also be unreasonable where the trial judge has drawn an inference or made a finding of fact essential to the verdict that is:

• plainly contradicted by the evidence relied upon in support of the inference or finding; or

• incompatible with evidence not otherwise contradicted or rejected by the judge.

See, R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[108] Where a verdict's reasonableness involves credibility assessments made by the trial judge, we cannot interfere with those assessments unless the appellant establishes that the credibility assessments cannot be supported on any reasonable view of the evidence: R.P., at para. 10.

The Principles Applied

[109] I would not give effect to this ground of appeal. As I will explain, I am satisfied that the conviction entered by the trial judge was reasonable on the evidence adduced at trial.

[110] The unreasonable verdict challenge is principally focused on the trial judge's finding of sexual purpose and, to a lesser extent, her conclusion that the dominant characteristic of the photographs was the depiction of the children's sexual organs or the anal region of the appellant's children.

[111] In my respectful view, the trial judge's conclusions on these issues were findings that a properly instructed jury, acting judicially, could reasonably have rendered considering the following evidence presented at trial:

• the children are nude in nearly all the photographs that form the subject-matter of the charge;

• the photographs focus, many exclusively, on the children's sexual organs, anal region or both;

• several photographs memorialize the same image from a different angle or point of vantage;

• most of the images are posed, with the sexual organs or anal regions accentuated by the physical positioning of the child's body;

• the absence from the photographs and contemporaneous text messages of any display of a medical condition or any inquiry or response about the need for medical evaluation or treatment;

• the context provided by the images of the appellant naked with the focus on her sexual organs and anal region;

• the manner in which the photographs were distributed: allegedly innocent family photographs depicting the appellant and/or her children nude, sent together with close-up images of the children's genitals; and

• the texts exchanged between the appellant and her husband with a caption indicative of sexual excitement or stimulation.

[112] On the evidence adduced at trial, the argument that the verdict was unreasonable fails.

The Proposed Fresh Evidence

[113] The evidence tendered for admission in this court consists of three components:

i. an Agreed Statement of Facts explaining the provenance of several additional photographs the appellant sent to her husband and appendices containing several other photographs of the children engaged in typical children's activities;

ii. an affidavit of Dr. Paul Federoff of the Sexual Behaviours Clinic at the Royal Ottawa Hospital attaching a copy of his sexual behaviours assessment admitted as evidence in the sentencing proceedings; and

iii. several letters and other information about the post-sentencing activities and progress of the appellant.

[114] The admissibility of items (i) and (ii) is contested. Not so item (iii) which the respondent concedes may be considered in assessing the fitness of the appellant's sentence but has no bearing on the appeal from conviction.

[115] For the reasons that follow, I would not admit items (i) and (ii) as fresh evidence on this appeal. I will consider (iii) in my discussion of the sentence appeal below.

The Arguments on Appeal

[116] The appellant asks this court to admit the Agreed Statement of Facts including the additional photographs and Dr. Federoff's opinion as fresh evidence because they satisfy the admissibility and cogency requirements for fresh evidence and should not be rejected for want of due diligence.

[117] The additional photographs proposed for admission are real evidence, just like the photographs introduced in evidence at trial. The appellant seeks their admission to show that, because the trial proceedings focused on a small percentage of the appellant's total images of her children, the finding of an underlying sexual purpose was unreasonable. There is no issue about the reliability of this evidence. It also tends to support the appellant's credibility and the reliability of her testimony.

[118] Dr. Federoff's report, ordered by the trial judge and filed as an exhibit on sentencing, is properly admissible as expert opinion evidence on the appeal from conviction. Like the additional photos, this report also casts doubt on the trial judge's finding the photos at issue had a sexual purpose.

[119] The appellant acknowledges that while the additional photos were available but not tendered at trial, Dr. Federoff's opinion only became available after the conviction had been registered. However, the appellant submits, the interests of justice favour reception of this evidence. This evidence is cogent and, had it been tendered at trial, it would likely have affected the verdict. Want of due diligence is not a prerequisite to the admissibility of fresh evidence and should not compel its rejection.

[120] The respondent asks this court to reject the appellant's fresh evidence application.

[121] The respondent acknowledges the additional photos are otherwise admissible real evidence but says they lack cogency. The trial judge was well aware that most of the images on the appellant's cell phone were vastly different than those the Crown relied upon to prove its case. The images have little bearing on the critical issues at trial and could not reasonably have affected the verdict. But, more importantly, the additional photos were available, but not tendered, at trial. The appellant provides no explanation for this failure and there is no suggestion trial counsel provided inadequate assistance. To admit the additional photos in these circumstances would be contrary to the interests of justice.

[122] Dr. Federoff's expert opinion, the respondent contends, also lacks the degree of cogency necessary to warrant reception. It reveals no nexus between the appellant's prior experiences and the photographs or the sexual health of her children. And it relies, almost exclusively, on the appellant's self-report, that of a person whom Dr. Federoff's own testing revealed to be deceptive. But, more importantly, this evidence could have been obtained and tendered at trial. The trial judge ordered the sexual behaviours assessment report for sentencing purposes. Once received, counsel could have asked to reopen the defence case or sought a mistrial. He did neither. Without explanation, the interests of justice warrant rejection of this proposed evidence.

The Governing Principles

[123] Section 683(1) of the Criminal Code gives this court a discretion to admit on appeal evidence not adduced at trial if the interests of justice so require: R. v. Palmer, [1981] 1 S.C.R. 759, at p. 775.

[124] Where fresh evidence is tendered to controvert a finding of fact made at trial, three components govern our inquiry and inform the exercise of our discretion to admit this evidence on appeal:

i. admissibility;

ii. cogency; and

iii. due diligence.

See Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 102.

[125] The first two components – admissibility and cogency – are preconditions to the admissibility of evidence: Truscott, at para. 93.

[126] The admissibility component ensures that evidence would itself be admissible if tendered at trial: Truscott, at para. 95.

[127] The cogency criterion requires a qualitative assessment of the evidence proffered on appeal and asks three questions:

• Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?

• Is the evidence credible, that is to say, reasonably capable of belief?

• Is the evidence sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result?

See Truscott, at para. 99.

[128] Courts can demand an enhanced level of cogency from the evidence when an appellant could have led the same kind of evidence at trial: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. 449, at para. 109.

[129] The due diligence component scrutinizes any explanation offered for the failure to introduce the evidence proffered on appeal at trial. This is critical for a proper application of the "interests of justice" standard, which assesses not only the interests of the accused, but also embraces the preservation and promotion of the integrity of the criminal justice system: Truscott, at paras. 101-102; Dooley, at para. 106. Due diligence is not a precondition to admissibility. It only becomes engaged when the admissibility and cogency requirements have been met. Yet want of due diligence may result in the exclusion of evidence that would otherwise be admissible on appeal: Truscott, at para. 93.

The Principles Applied

[130] I would not admit the additional photographs or Dr. Federoff's report as fresh evidence on this appeal. Given my findings on admissibility, it follows that this evidence would not have affected the verdict at trial.

(1) The Additional Photographs

[131] Assessed qualitatively, the agreed statement of facts and additional photos proposed as fresh evidence lack cogency. This evidence could not reasonably have been expected to have changed the verdict reached at trial.

[132] The trial judge was well aware that the images tendered by the Crown as child pornography represented a fraction of the total number of photographs the appellant took of her children. The trial judge considered this uncontested fact in her analysis of the sexual purpose component of the child pornography charge. She concluded the required sexual purpose had been proven beyond a reasonable doubt. That conclusion, reasonably open to the trial judge on all the evidence, could not reasonably be expected to have changed with the addition of the actual photographs the appellant seeks to admit as fresh evidence.

[133] Nor am I persuaded that the additional photos would have any impact on the trial judge's assessment of the appellant's credibility and the reliability of her evidence. The appellant claimed that some of the photos said to constitute child pornography showed injuries to the children's genitalia and buttocks. The appellant testified that she took the photos so she could discuss any need for medical attention or treatment with her husband. The trial judge looked at the photos. She saw no injuries. A large collection of innocent photographs could scarcely resuscitate the appellant's testimonial failings.

[134] While not a precondition to the admissibility of fresh evidence, the due diligence factor strongly favours the rejection of this evidence. The additional photographs were available and could have been tendered at trial. No explanation is advanced for the failure to adduce this evidence at trial.

[135] Together, the lack of cogency and the absence of due diligence satisfy me that this aspect of the proposed fresh evidence should not be received.

(2) Dr. Federoff's Report

[136] Like the additional photos, Dr. Federoff's report lacks cogency. The report was largely founded on the appellant's out-of-court self-report. The trial judge found the appellant's evidence lacked credibility and reliability. And Dr. Federoff's own testing revealed elevated scores on scales designed to identify deception and impression management. Moreover, the report seems speculative and untethered to the evidence adduced at trial. It records a preoccupation with her children's sexual health about which the appellant did not testify at trial and does not link her prior experiences with the photos she took of her children that were found to constitute child pornography.

[137] The due diligence factor strongly favours the rejection of this evidence. At the risk of stating the obvious, the appellant could have sought a sexual behaviour assessment from Dr. Federoff before trial and tendered his opinion in support of the argument advanced on appeal. No such request was made. And no explanation is offered for the failure to do so. Moreover, when Dr. Federoff's report (ordered by the trial judge) was admitted at the sentencing hearing, trial counsel did not ask to reopen the defence or seek a mistrial. This lack of due diligence weighs heavily against the reception of this report as fresh evidence.

[138] In the result, I would not admit the proposed evidence on the appeal from conviction.

Ground #4: Misapprehension of Evidence

[139] The appellant contends the trial judge misapprehended various aspects of the evidence adduced at trial in reaching her conclusion that several images recovered from the appellant's cell phone constituted child pornography. For the reasons that follow, I would reject this ground of appeal.

[140] A brief review of the alleged misapprehensions provides the necessary context to assess this ground of appeal.

The Alleged Misapprehensions

[141] The appellant alleges three discrete misapprehensions of the evidence adduced at trial.

[142] First, the trial judge misapprehended the text message – "Wake up and prayyy" – accompanying the photographs of the child's penis to support her rejection of the appellant's evidence that the photographs she sent to her husband were taken to depict a medical condition about which she sought her husband's advice on treatment. The text message was, according to the appellant, not "sent with" the images; rather, it had been sent more than 19 hours before the images were transmitted.

[143] Second, the trial judge misapprehended the dates on which the text messages between the appellant and her husband were sent. The trial judge described the images without any reference to the two medical issues in the accompanying text as having been sent on December 8, 2014. But those images were not sent on December 8, 2014; they were sent about three weeks earlier on November 18, 2014. The images sent on December 8, 2014 were of children playing, not of their son's penis. There was no accompanying text about medical issues or anything else because the appellant and her husband were speaking to each other on the phone.

[144] Third, the trial judge misapprehended the number of images involved. There were not, as the trial judge said, 129 unique images. There were 129 unique digital fingerprints, but some images were created by applications on the appellant's phone. There were only 94 unique images. The trial judge also erroneously included in her calculation 38 images of her son near the appellant's naked buttocks, which were not child pornography. A further 28 images of the appellant holding her son's penis were created outside the timeframe described in the count.

The Arguments on Appeal

[145] The appellant says these misapprehensions warrant a new trial: they were related to essential elements of the offences charged and material to the findings of guilt made and convictions recorded.

[146] The respondent disagrees.

[147] First, regarding the "Wake up and prayyy" text message, the respondent says it was open to the trial judge to conclude that the claims of medical purpose advanced in connection with some of the images were simply not borne out by the text messages taken as a whole. None of the text messages to which the appellant has referred undermine this well-founded conclusion.

[148] Second, regarding the date of the text message, the respondent contends that it was not a misapprehension for the trial judge to consider the photos sent on November 19, 2014. No objection was taken to their admissibility at trial. In any event, it matters not that there is not a coincidence between the date specified in the information and that revealed by the evidence unless the time of the offence is critical and the accused may be misled, thus prejudiced, by the variance. That is not so here where the defence advanced was that the photographs, whenever taken, did not amount to child pornography. Besides, considered in Universal Standard Time, the photos were taken within the time period specified in the information.

[149] Third, regarding the number of images, the respondent submits the judge's reference to "129 unique images" is correct. The police expert testified that although some images bore a visual similarity, each had a unique "MD5 Hashmark" or photographic fingerprint. One hundred and twenty-nine "unique images" are included in the exhibit filed at trial. Whether these images were created by the appellant or by a program the appellant installed and used on her phone, 129 unique images were created on the appellant's phone.

The Governing Principles

[150] The principles that inform our assessment of claims of misapprehension of evidence are firmly rooted in the jurisprudence of this and other courts and need no elaborate explanation. A few brief reminders will suffice.

[151] First, a misapprehension of evidence may refer to:

• a failure to consider evidence relevant to a material issue;

• a mistake as to the substance of the evidence; or

• a failure to give proper effect to evidence.

See, R. v. Morrissey, 97 C.C.C. (3d) 193, at p. 218.

[152] Second, where misapprehension of evidence is advanced as a ground of appeal, we should first consider the reasonableness of the verdict rendered at trial. If the appellant succeeds on this ground, we enter an acquittal. Where the appellant fails to demonstrate the verdict is unreasonable, then we must decide whether the misapprehension of evidence caused a miscarriage of justice under s. 686(1)(a)(iii). In most cases, success on this ground will warrant a new trial. Failure to demonstrate a miscarriage of justice resulted from the misapprehension requires us to consider whether the misapprehension of evidence was an error of law and, if so, whether the Crown has demonstrated that it did not result in a substantial wrong or cause a miscarriage of justice: Morrissey, at pp. 219-220.

[153] Third, where a trial judge is mistaken about the substance of material parts of the evidence adduced at trial and these errors play an essential part of the reasons for the accused's conviction, a miscarriage of justice has occurred. The conviction is not grounded in the evidence adduced at trial and is not a "true" verdict according to that evidence: Morrissey, at p. 221.

[154] Fourth, the standard just described is stringent. The misapprehension of the evidence must relate to the substance of the evidence, not simply a detail: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. See also, R. v. Orwin, 2017 ONCA 841, 142 W.C.B. (2d) 319, at para. 45; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 80-81.

The Principles Applied

[155] To begin, as I have already explained, I am satisfied that the verdict rendered by the trial judge is not unreasonable. My analysis then turns to whether the misapprehension of evidence caused a miscarriage of justice. As I will explain, it does not. I would reject this ground of appeal.

[156] On the evidence adduced at trial, it was open to the trial judge to reject the appellant's claim that various photos of the children's genital areas were taken for medical purposes, that is to say, to capture physical conditions and solicit advice from her husband about medical assessment and treatment. No text, contemporaneous or otherwise, supported this claim. Its rejection was not cumbered by any material misapprehension of the evidence.

[157] The claim that the trial judge erred in her calculation of the number of images also falls on barren ground. Whether the images were created by the appellant or by an App she had installed on her cell phone is inconsequential. What mattered was not the number of images, but rather the character of those images. Likewise, the trial judge did not fail to give proper effect to the images in which the appellant was nude, but the children clothed. These images provided valuable context for an assessment of the purpose for which the photographs depicting the sexual organs or anal regions of the children were taken and tended to belie the claimed medical purpose advanced by the appellant.

[158] Finally, trial counsel did not object to the admission and consideration of the images sent on November 19, 2014. And even if the appellant is correct, which is far from clear as a matter of fact, no prejudice ensued. The defence advanced at trial was a denial of the unlawful character of the images. Nothing turned on the date the images were taken.

Ground #5: Reasonable Apprehension of Bias

[159] This ground of appeal is founded on the trial judge's conduct during the sentencing proceedings. It includes comments made during the sentencing hearing and what the trial judge said in her reasons for sentence. The appellant contends that what was said then reflects a state of mind that reaches back into the trial proper, prior to the adjudication of guilt, infecting it with the same views and requiring a new trial.

[160] A brief reference to the post-conviction proceedings on which the claim is based will furnish the necessary background.

The Additional Background

[161] The claim is based on three aspects of the sentencing hearing:

i. the sexual behaviours assessment;

ii. the involvement of the Children's Aid Society ("CAS"); and

iii. the reasons for sentence.

The Sexual Behaviours Assessment

[162] After finding the appellant guilty and entering convictions on the offences charged, the trial judge ordered a sexual behaviours assessment of the appellant under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7. As noted earlier, the assessment was conducted by Dr. Paul Federoff of the Sexual Behaviours Clinic at the Royal Ottawa Hospital.

[163] Dr. Federoff interviewed the appellant and her husband, reviewed the reasons of the trial judge and the images found to constitute child pornography and conducted a mental status examination of the appellant. Dr. Federoff concluded the appellant displayed normal heterosexual arousal patterns and a total absence of any paraphilic disorder. She showed no sexual interest in children.

[164] Dr. Federoff expressed the opinion that the appellant suffered from PTSD because of the female genital mutilation as well as physical and sexual abuse she had suffered in Nigeria and the death of one of her children during female genital mutilation. This, Dr. Federoff said, explained her pre-occupation with the genital regions of her children. Incarceration and separation from her family exacerbated this pre-existing condition.

[165] According to Dr. Federoff, the risk of re-offence by the appellant was low. He recommended that the appellant be treated for PTSD and promptly reunited with her family.

[166] In discussion with the appellant's husband, Dr. Federoff learned that he (the husband) remained committed to the appellant. The husband retained the images of the children that were the subject-matter of the prosecution. From him, Dr. Federoff learned, the CAS had approved the husband as the custodian of the children.

The Involvement of CAS

[167] During the sentencing proceedings, the trial judge expressed concerns about the absence of any report from CAS about custody of the children. She wanted to know about this issue before she passed sentence. She indicated that she would be surprised if CAS permitted the appellant's husband to have custody of the children in light of the appellant's convictions. The trial judge adjourned the sentencing hearing to obtain further information about the position of CAS on the custody of the children and indicated that she would not impose sentence in the absence of that information.

[168] The next day, the trial Crown advised the trial judge that CAS had been involved in the investigation of the offences charged and were aware of the circumstances. CAS employees had interviewed the appellant's husband and their children. CAS had closed its file in 2015. The trial judge then gave her reasons for sentence.

The Reasons for Sentence

[169] At trial, counsel for the appellant sought a sentence of time served coupled with a term of probation of 12 months. The trial Crown advocated for a sentence of imprisonment of three to four years, less time served in pre-sentence custody, to be followed by probation for a term of three years.

[170] The trial judge imposed a total sentence of 36 months in custody to be followed by probation for a term of three years. The net custodial sentence, when credit for pre-sentence custody had been deducted, was nine months.

[171] In her reasons for sentence the trial judge reviewed the positions counsel had advanced in connection with the report of Dr. Federoff. She gave little weight to the psychiatrist's report and gave several reasons for her finding:

• treatment bias including treatment of the appellant and others reporting similar backgrounds;

• the absence of collateral support for the history reported by the appellant;

• the appellant's scores on the impression management scale and self-deception enhancement sub-scale on a Deception Scale test administered to her; and

• the acceptance by Dr. Federoff of the appellant's self-report without any apparent consideration of her enhanced impression management scores.

The Arguments on Appeal

[172] The appellant says that the trial judge's management of the sentencing proceedings, coupled with her reasons for sentence, disclose a reasonable apprehension of bias, which tainted the fairness of the entire trial.

[173] When the parties made their submissions on sentence, the trial judge explained her concern about the absence of any report from CAS when counsel for the appellant was advancing a submission in support of a suspended sentence and a period of probation for 12 months. Thereafter, the trial judge rejected the sexual behaviours assessment which she had ordered, largely because it was inconsistent with her views about the appellant's guilt.

[174] The appellant contends that the cumulative effect of several factors rises to the level required to establish a reasonable apprehension of bias, which tainted the fairness of the proceedings and resulted in a miscarriage of justice. The relevant factors include:

i. the trial judge "aggressively" pushed for input from CAS which she later abandoned on learning that CAS had investigated the family situation and found that the children were not at risk;

ii. the trial judge discounted the opinion of Dr. Federoff because it did not coincide with her findings of guilt; and

iii. the trial judge rejected Dr. Federoff's report as biased because he had (and disclosed) an existing treatment relationship with the appellant and other survivors of female genital mutilation.

[175] The respondent rejects the appellant's claim that these proceedings were tainted by a reasonable apprehension of bias because of the way in which the sentencing proceedings were conducted, the findings of fact made in those proceedings, or on any other basis.

[176] The respondent begins with a reminder about the presumption of impartiality, the strength of that presumption, and the requirement that anyone who challenges its application, as here, must adduce substantial evidence to establish the contrary on a balance of probabilities. The evidence here, the respondent says, falls well short of that standard.

[177] Taking first the complaint about seeking CAS input. This request was justified. After all, the respondent points out, defence counsel sought a sentence of time served and probation for one year. This would inevitably involve contact with the very children whom the appellant had photographed in circumstances the trial judge had found amounted to a crime. Sentencing was delayed for a day, the information from CAS acquired, and sentencing proceeded, a course sought by defence counsel in light of the length of pre-sentence custody.

[178] Turning to the rejection of Dr. Federoff's opinion, the respondent says that it was for the trial judge to determine what weight, if any, to assign to Dr. Federoff's report, as with any evidence adduced in sentencing proceedings. She did so and explained why. Her findings are subject to deference. The factors on which she relied do not reflect error.

The Governing Principles

[179] There is a presumption that judges will carry out their oath of office to render justice impartially. This presumption is ingrained in the fabric of our law. Yet the presumption is rebuttable: R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 117.

[180] As a consequence of the presumption of impartiality, as well as its rebuttable nature, a party who alleges actual or a reasonable apprehension of bias bears the onus or burden of establishing it. The standard of proof required is proof on a balance of probabilities: R.D.S., at para. 114; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 31.

[181] In common usage, bias describes a state of mind, one that is in some way predisposed to a particular result, or that is closed with respect to a particular issue. Bias is a leaning, an inclination, a bent or predisposition towards one side or another, or a particular result. It represents a predisposition to decide an issue or cause in a certain way, thus not leaving the judicial mind open to persuasion or conviction: R.D.S., at paras. 105-106.

[182] The apprehension of bias must be reasonable, held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it. The test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude": Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394; R.D.S., at para. 111; Nero, at para. 29. The test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case: R.D.S., at para. 111.

[183] The inquiry into a claim of reasonable apprehension of bias is fact-specific. From cogent evidence, what the inquiry must yield is not some mere suspicion of bias but rather a real likelihood or probability of bias: R.D.S., at para. 112.

The Principles Applied

[184] I would not give effect to this ground of appeal.

[185] This analysis begins with a strong presumption of impartiality which is not easily dislodged. The threshold to be met in order to rebut this presumption is high, though not insurmountable. It requires cogent evidence and careful consideration since it calls into question an element of judicial integrity. Mere suspicion is not good enough. What must be shown on a balance of probabilities is a real likelihood or probability of bias. This does not follow from mere rejection of evidence as unreliable. The apprehension of bias must be reasonable in the circumstances of the case, taken as a whole. The person considering the allegation of bias must also be reasonable, that is to say, an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form part of the background and apprised also of the fact that impartiality is one of the duties a judge swears to uphold.

[186] In this case, the appellant assigns to the task of rebutting the strong presumption of judicial impartiality two incidents that occurred during sentencing proceedings and argues that they reveal a reasonable apprehension of bias and infected the trial proceedings to such an extent as to cause a miscarriage of justice.

[187] The appellant points to nothing in the conduct of the trial proceedings themselves leading to the finding of guilt that raises any glimmer of potential bias. In a manner reminiscent of the retrospectant chain of reasoning used, the appellant invites the inference of prior lack of impartiality from subsequent events. But the events she enlists to support this claim are simply not up to the task.

[188] The trial judge sought current information from the CAS in a case involving the appellant's conduct towards her children. The conduct was the creation of images that constituted child pornography. She shared the images with her husband who had custody of the children. The evidence disclosed a robust history of deceit on the appellant's part, to some extent by her husband as well, in relation to our immigration laws and deception of the officers charged with the responsibility of enforcing those laws. Counsel for the appellant was advocating a non-custodial sentence so that the appellant could rejoin her husband and children. The combined force of these circumstances justified the trial judge's request for current CAS information about the children as a relevant sentencing factor.

[189] The trial judge's request for a sexual behaviour assessment was a legitimate position at sentencing. The request did not command acceptance of the contents of the report. As with any item of evidence tendered or submission made on sentencing, it was for the sentencing judge to evaluate and determine a fit sentence in the fact and context-specific inquiry in which she was engaged. She did so. Without more, her rejection of Dr. Federoff's opinion does not give rise to a reasonable apprehension of bias in the sentencing process, much less taint the proceedings as a whole.

[190] Having found no hint of bias in the sentencing proceedings, I would reject this ground of appeal.

The Appeal from Sentence

[191] The appellant advances two arguments on her appeal from sentence: the judge's bias towards the appellant resulted in an unfit sentence, or alternatively the appellant's sentence is demonstrably unfit. Having already found the judge's conduct during the sentencing hearing does not give rise to a reasonable apprehension of bias, I will limit my reasons to whether the sentence is demonstrably unfit such that the probation order should be varied.

[192] As I explain, I would not give effect to this ground of appeal.

Arguments on Appeal

[193] Appellant submits her sentence is unfit because her probation order limits her ability to have contact or communicate with her children. The appellant asks this court to vary the probation order to remove the following requirements: (1) that the appellant obtain permission from CAS before contact or communication with her children; (2) that contact and communication must be supervised by someone other than the appellant's husband; (3) and that CAS approve the supervisor.

[194] The respondent invites us to dismiss the appeal from sentence. The custodial portion of the sentence has already been served, thus an assessment of its fitness is moot. In any event, its length was dictated by the predominant sentencing objectives of deterrence and denunciation and the aggravating factors of a breach of trust and the vulnerability of the children whose images formed the subject-matter of the charges. The terms or conditions included in the probation order likewise do not reflect error. Recall that both parties at trial sought a period of probation as all [defence] or part [Crown] of the sentence to be imposed. No ground for appellate intervention has been established.

The Governing Principles

[195] Section 731 of the Criminal Code describes the circumstances in which a probation order may be made. Relevant considerations include:

i. the age and character of the offender;

ii. the nature of the offence; and

iii. the circumstances surrounding the commission of the offence.

See, Criminal Code, s. 731(1).

[196] Section 732.1(2) sets out the mandatory terms of a probation order, among them non-communication and non-association terms: Criminal Code, s. 732.1(2)(a.1). In exceptional circumstances these terms may be deleted: Criminal Code, s. 732.1(2)(a.1)(ii).

[197] Under s. 732.2(3)(c), the sentencing court may decrease the period for which a probation order is to remain in force. Dispositions made under s. 732.2(3) fall within the definition of "sentence" in s. 673, thus may be reviewed by this court under ss. 675(1)(b) and 676(1)(d) of the Criminal Code.

[198] Sentencing judges are in the best position to determine a just and appropriate sentence that pays heed to the sentencing objectives and principles set out in the Criminal Code. It is especially so where the sentence is imposed after a contested trial. Accordingly, appellate courts accord substantial deference to sentencing decisions when exercising their powers of review under s. 687(1) of the Criminal Code: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 48.

[199] An appellate court is entitled to intervene under s. 687(1) of the Criminal Code where the sentencing judge erred in principle, failed to consider a relevant factor, or erred in considering an aggravating or mitigating factor, but only if it appears from the sentencing judge's decision, read as a whole, the error had an impact on the sentence ultimately imposed: Lacasse, at paras. 43-44.

The Principles Applied

[200] The appellant has not identified any error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence imposed, more specifically, on the inclusion, length or terms of the probation order. Having considered the fresh evidence comprised of several letters and other information about the post-sentencing activities and progress of the appellant, I would reject the appellant's request to vary the probation order.

[201] Having regard to R. v. Boudreault, 2018 SCC 58, the victim fine surcharge must be set aside. I would otherwise dismiss the appeal from sentence.

DISPOSITION

[202] For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence and allow the appeal from sentence to the extent of setting aside the victim surcharge imposed at trial; otherwise I would dismiss the appeal from sentence.

Released: December 6, 2019

"David Watt J.A."

"I agree. G.R. Strathy C.J.O."

"I agree. B. Zarnett J.A."