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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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 of Appeal for Ontario

Date: 20220425 Docket: C68180

Simmons, Miller and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Antonio Scopel-Cessel Appellant

Counsel: Zachary Kerbel and Saman Wickramasinghe, for the appellant Andrew Cappell, for the respondent

Heard: March 23, 2022 by video conference

On appeal from the convictions entered by Justice John N. Olver of the Ontario Court of Justice on January 13, 2020.

Nordheimer J.A.:

[1] Mr. Scopel-Cessel appeals from his convictions for possessing and accessing child pornography. The issue on appeal turns on the trial judge’s conclusion that information obtained from the appellant by the police, in the course of executing a search warrant, should not be excluded for breach of the appellant’s rights under the Canadian Charter of Rights and Freedoms. For the following reasons, I would allow the appeal and quash the convictions.

A. Background

[2] On December 14, 2017, Detective Constable Paul Twiddy, of the Durham Regional Police Service’s Internet Child Exploitation (ICE) Unit, began the investigation that would lead to the appellant’s arrest. He accessed the Child Protection System (CPS) to review logged records for Internet Protocol (IP) addresses in the Durham Region that might be accessing child pornography.

[3] During his review, D/C Twiddy was able to identify a computer using a particular IP address. The IP address was logged as being in possession of several “child notable” files. He was able to establish a connection with this IP address through the CPS. While connected with the IP address, he was able to identify a Global Unique Identifier (GUID) associated with the application that was being used to access the child notable files.

[4] Between December 14, 2017, and January 1, 2018, D/C Twiddy was able to download eight suspect files from the device matching the GUID and originating from the IP address. By January 4, 2018, D/C Twiddy had learned that the location of the IP address was in Pickering, Ontario. He further learned that the suspect computer was using a file sharing program known as “eMule”. Upon a review of the downloaded files, D/C Twiddy concluded that the images met the definition of child pornography set out in the Criminal Code, R.S.C. 1985, c. C-46.

[5] Through a production order, D/C Twiddy learned that the appellant was the subscriber associated with the IP address. The production order returned a specific address in Pickering and the name of the appellant. D/C Twiddy also conducted a Ministry of Transportation query for the appellant, which listed the address from the production order and the appellant’s date of birth, which indicated he was 70 years old.

[6] On January 23, 2018, D/C Twiddy attended the Pickering address and conducted a wireless signal scan from the street using a WiFi detection device called a “Canary”. He was able to determine that all accessible wireless signals in the area were password protected. At the time, he was satisfied that the wireless signal being used at the address had not been compromised or hijacked by an unauthorized user.

[7] While at the address, D/C Twiddy identified two vehicles in the driveway. One was registered to the appellant. The second vehicle was registered to a person in Bowmanville. After further investigation, D/C Twiddy determined that there were no apparent linkages between the person from Bowmanville and the address.

[8] That same day, D/C Twiddy began drafting an Information to Obtain for the purpose of obtaining a search warrant for the address. At the time, D/C Twiddy did not have any information that anyone other than the appellant lived at the address. He knew that the appellant was the subscriber for the internet account, he had seen a car registered to the appellant parked in the driveway, and he believed the internet account to be password protected.

[9] On January 24, 2018, a search warrant was authorized for the address. The warrant authorized the seizure of evidence related to the commission of child pornography related offences, as well as evidence that would identify the user of the suspect IP address.

[10] At 6:02 a.m. on January 26, 2018, D/C Twiddy and a team of Durham Regional Police Service officers (including ICE and E-Crimes) executed the search warrant. It was dark outside at the time. D/C Twiddy was using his flashlight.

[11] Seven police officers and one civilian officer attended the residence to assist D/C Twiddy with the search.

[12] During the execution of the search warrant, D/C Twiddy was wearing a blue vest with the words “POLICE” prominently displayed on the front and back. He was also wearing his full duty belt, including his sidearm. The ICE Unit and E-Crimes officers were similarly attired. The officers from the West Division Criminal Investigation Branch, as well as the civilian officer, were dressed in plain clothes. The officers from the Criminal Investigation Branch were also wearing sidearms.

[13] Officers rang the doorbell, and the appellant answered the door wearing his pyjamas. Upon entering, D/C Twiddy had a conversation with the appellant in the front foyer. He identified himself as a member of the Durham Regional Police Service and advised that he had a warrant to search the residence. The appellant was provided with a copy of the warrant, which he reviewed. The warrant outlined the items to be searched for and indicated that police were investigating an “unidentified person”.

[14] The appellant advised the police that his wife was asleep upstairs. While the appellant remained in the foyer area of the home, an officer escorted his wife downstairs. D/C Twiddy recalled that the appellant’s wife looked dishevelled, like she had just gotten out of bed.

[15] During the initial conversation with police in the foyer, the appellant was told that he was not under arrest and was not required to provide any information. D/C Twiddy did not believe that the appellant was detained at this time. Consequently, he did not read the appellant a specific caution.

[16] Shortly after the appellant’s wife was escorted downstairs, both she and the appellant were brought into the living room to speak with D/C Twiddy. At the time, the other officers involved in the execution of the warrant were searching the other rooms of the home.

[17] While in the living room, D/C Twiddy told the appellant that he was not under arrest and that he had no obligation to provide information. D/C Twiddy testified that he went further and advised the appellant that he was not detained. The appellant had no recollection of that, and it was not included in D/C Twiddy’s original case notes, although it was in his arrest report made later that day.

[18] D/C Twiddy informed both the appellant and his wife of the nature of the investigation. D/C Twiddy then asked how many computers were in the residence. Prior to asking this question, he did not advise either the appellant or his wife of their rights to counsel.

[19] The appellant’s wife advised that there were two computers on the second floor – a computer in the south bedroom that belonged to her, and one in the north bedroom that belonged to the appellant.

[20] D/C Twiddy testified that the fact that the appellant had a specific computer in the residence did not change his view that the appellant was not a suspect at the time.

[21] While D/C Twiddy was with the appellant and his wife in the living room, he asked if anyone else lived in the residence. The appellant said that there had been “no other residents for the past several months” and that the WiFi password had only been provided “to friends and family who visit, never to neighbours.”

[22] Following this initial discussion, a Forensic Identification Services (FIS) officer arrived and began taking video and photos of the interior of the residence. The appellant and his wife were moved to the kitchen. They remained in the kitchen in the company of police until the appellant’s arrest at 7:36 a.m., over an hour into the search.

[23] While in the kitchen, D/C Twiddy continued to observe the appellant. At one point, the appellant asked for permission to make a cup of coffee for him and his wife. He was allowed to do so.

[24] Prior to the appellant’s arrest, D/C Twiddy attended the north bedroom where an E-Crimes officer had located the desktop computer that the appellant’s wife said belonged to him. The computer was running. D/C Twiddy was told that a password was required to access it.

[25] D/C Twiddy returned to the kitchen and told the appellant:

You’re not required to provide any information to me, however, the computer upstairs is running and in order for E-Crimes to check it properly and possibly prevent it from being seized, they need the password in order to continue.

[26] D/C Twiddy did not explain to the appellant that anything that he said at that point in time could end up being used in evidence against him. The appellant provided the password. D/C Twiddy immediately went upstairs and advised the E‑Crimes officer of the password.

[27] Thereafter, upon a review of the computer, D/C Twiddy observed an eMule icon on the desktop. This was the peer-to-peer sharing software that he knew to have been used to download the child pornography material at issue in the case. D/C Twiddy was then advised by the E-Crimes officer that there was also a text document with child pornography related information on the computer.

[28] Following the discovery of the eMule icon and the text document, D/C Twiddy went back downstairs to the kitchen to ask the appellant what was on several rewritable CDs and DVDs that were located during the search. The appellant advised that they were his “DOS stuff”.

[29] D/C Twiddy did not advise the appellant that he was being detained at that time. He testified that he would not have prevented the appellant from leaving the house.

[30] At 7:34 a.m., an hour and a half after the police had entered the home, D/C Twiddy had a conversation with an E-Crimes officer and learned that the computer in the north bedroom contained child pornography files. D/C Twiddy also learned that the unique GUID for the computer in the north bedroom matched that identified during the initial investigation.

[31] D/C Twiddy said that he now believed he had grounds to arrest the appellant. However, he did not immediately arrest the appellant, nor did he provide him with his right to counsel. Instead, D/C Twiddy asked the appellant who had access to the north computer. The appellant advised that he was the only one who accessed it.

[32] At 7:36 a.m., following this admission, the appellant was arrested for possessing, accessing, and distributing child pornography. For the first time, D/C Twiddy formally cautioned the appellant and read him his rights to counsel. The appellant advised that he understood and immediately requested to speak with duty counsel.

B. The trial judge’s reasons

[33] The Charter issues raised by the appellant proceeded by way of a blended voir dire and trial. The appellant sought exclusion of all of the evidence obtained from his computer and hard drives, as well as all of the statements that the appellant had made in answer to the officer’s questions.

[34] The trial judge gave reasons on the Charter challenge. With the exception of the final statement that the appellant made to the officer regarding who had access to the north bedroom computer, which he excluded, the trial judge rejected the appellant’s claims of any Charter breaches.

[35] In doing so, the trial judge correctly held that the issues fell to be determined on whether the appellant was detained at any point prior to his arrest. He referred to the decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and the three factors that the court in Grant identified as being relevant to the inquiry of whether a detention had occurred.

[36] The trial judge then listed 14 findings of fact that he drew from the evidence. He referred to some of the evidence that the appellant had given on the voir dire in terms of his conduct during the relevant time. The trial judge then concluded, at para. 41:

While the accused may well have felt some compulsion to comply with D/C Twiddy's request for information, on this evidentiary record it cannot be said that his free will to choose was ever undermined by the conduct of D/C Twiddy. His consent to reply was not conscripted. His answers to the questions posed were voluntary. And the circumstances, such that they were, did not create such an oppressive atmosphere as to impose a significant psychological restraint on the accused tantamount to a detention.

[37] The trial found that no detention had occurred until the appellant was arrested at 7:36 a.m. However, the trial judge found that the one statement made just before his arrest (as to who had access to the north bedroom computer) was problematic because, by that point, D/C Twiddy knew about the child pornography found on that computer and was thus attempting to obtain an inculpatory statement without providing the appellant with his rights. He found that this question breached the appellant’s s. 8 rights and excluded the answer.

[38] The trial judge characterized the other questions asked as simply being for the purpose of expediting the search process, which was “mutually beneficial” to both parties. He found no further Charter violations. The trial judge did not undertake a s. 24(2) analysis of whether the remaining evidence should be excluded if his conclusion on the detention issue should turn out to be in error.

C. Analysis

[39] In my view, the trial judge erred in reaching the conclusion on detention that he did. The trial judge did not analyze the evidence against the factors from Grant that he set out earlier in his reasons. He also set the bar for finding a detention much too high.

[40] The three factors identified in Grant that are relevant to a determination of whether a reasonable person in the individual's circumstances would conclude that he or she had been detained are set out at para. 44:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[41] When these factors are properly applied, the first factor reveals that this was not a situation where the police were providing general assistance, or maintaining general order, or making general inquiries. Rather, it was a case where the police were engaged in a focused investigation involving a specific crime linked to a specific address where they knew the appellant lived. Indeed, in obtaining the search warrant, they had linked the existence of child pornography to this very address. And, prior to executing the warrant, they had information linking the appellant to the address.

[42] The second factor reveals that all of the interaction took place in the appellant’s home. It began at six o’clock in the morning when it was still dark outside. It involved eight police officers all of whom, save one, were armed. Most of the officers were wearing clothing that clearly identified themselves as police officers. The only two individuals in the home were the appellant and his wife. They were kept occupied by the police for over an hour and a half prior to the appellant being arrested.

[43] On the third factor, the appellant is a retired male who was 70 years old at the time of the search. He had no prior involvement with the police.

[44] The court in Grant recognized that there is a spectrum of activity in which the police are involved with citizens upon which the issue of detention falls to be determined. On that point, McLachlin C.J. and Charron J. said, at para. 39:

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights.

[45] The respondent submits that D/C Twiddy told the appellant that he did not have to answer his questions. He also told the appellant that he was not detained. While that may be true, the fact remains that D/C Twiddy never told the appellant that he was free to go. And, in any event, the notion that the appellant was free to leave is unrealistic in the particular circumstances of this case. The interaction with the police commenced at six o’clock in the morning. The appellant was in his pyjamas. It was January. There was no place where the appellant could realistically have gone. Further, it seems fundamentally at odds with a person’s rights, and the recognized sanctity of a person’s home, to contend that a person must leave their home in order to have their rights protected. As Brown and Martin JJ. said in R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 51:

The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. People rightly expect to be left alone by the state in their private spaces. In addition, there is the practical reality that, when authorities take control of a private space, like a backyard or a residence, there is often no alternative place to retreat from further forced intrusion.

[46] I also disagree with the trial judge’s characterization of D/C Twiddy’s questions as merely being for the purpose of expediting the search. There is no evidence that those questions and answers expedited the search. There is, however, evidence that those questions and answers expedited the investigation. Indeed, D/C Twiddy admitted as much when the following exchange took place with defence counsel:

Q. And that answer now, along with all of the other answers, provides a tidy little list of admissions to prove knowledge, possession and control over that particular bedroom computer, you'd agree.

A. Correct.

Q. Right. So you'll agree with me that the questions that you asked now have made it, your job as an investigator, much simpler.

A. What questions would that be? The, the previous questions you mean?

Q. All of the questions that you asked up until that point in time. We've just gone through all of them with all of the...

A. Yes…

Q. ... answers – sure.

A. ... the purpose of that was to determine ownership of devices and where that child pornography was.

Q. Right, and who had access to that child pornography.

A. Correct.

[47] In my view, this case is virtually indistinguishable from R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265. That case involved the same offences together with the execution of a search warrant in a home undertaken, coincidentally, by the same police service. Like this case, the accused person was not read his rights and the police conducted a focused investigation. This court concluded that the appellant (who was present, along with his wife and family) had been detained. Of particular application to this case is the observation of Strathy C.J.O., at para. 51:

It is noteworthy that the warrant was executed at 6:03 a.m. when most people are just waking up and when working people with children are getting ready for their busy day. This element takes on particular flavour when one considers the presence of some nine police officers executing the warrant in what appears to have been a typical, middle-class home. This would cause a reasonable person to feel the weight of the state in their home, the most private of places.

[48] I conclude that the appellant was detained, virtually from the moment that the police entered his home. Without delineating all of the sections of the Charter that the police conduct in this case violated, there was certainly a violation of the appellant’s s. 10(b) rights – a fact that the respondent acknowledges, if a detention is found. The appellant’s s. 10(b) rights were triggered immediately upon detention but were not provided until around one and a half hours later: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41.

[49] Having concluded that there was a detention, and a breach of the appellant’s Charter rights, the question then becomes whether the evidence collected ought to be excluded under s. 24(2). The three factors to be considered in this analysis are also set out in Grant: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the accused; and (iii) society's interest in an adjudication on the merits.

[50] On the seriousness of the Charter-infringing state conduct, I conclude that this was a serious breach. I have already said that I reject the notion that the police conduct in this matter was undertaken to expedite and protect the integrity of their search. There was no urgency that would attenuate the seriousness of the breach in this case: R. v. Silveira, [1995] 2 S.C.R. 297; Grant, at para. 75. The search would not have been negatively impacted, in any way, by the police advising the appellant that he was detained and providing him with his rights to counsel. The home was secure, the inhabitants identified, and the computers located. There was nothing that the appellant could have done to interfere with the search or to destroy evidence.

[51] Under this factor, I would add another consideration and that is that the Durham Regional Police Service was the same police service involved in McSweeney. The fact that the same Charter breach has occurred might suggest that the police have either not taken, or have not accepted, guidance from this court on the type of conduct that gives rise to a detention and thus adopted the necessary and appropriate steps to inform citizens involved of their rights. That adds a troubling aspect to the seriousness of the breach.

[52] On the second factor, the impact on the appellant’s Charter-protected interests was significant. As McLachlin C.J. and Charron J. said in Grant, at para. 76:

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[53] The appellant was detained in his home and questioned about serious offences without being told that he had the right to consult counsel. This was a significant incursion on the appellant’s Charter-protected right against self‑incrimination. Indeed, when the appellant was eventually told of his right to consult counsel, he immediately asked to do so. While the detention was occurring, the police obtained significant incriminating evidence against the appellant, including the password for the computer on which the child pornography was found.

[54] On the third factor, there is no dispute that these were very serious offences and that the evidence was central to their successful prosecution. However, as Doherty J.A. noted in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63: “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”

[55] I would add to that the fact that the seriousness of the offence cuts both ways. Society “has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84. For this reason, the long-term repute of the justice system also favours exclusion.

[56] Accordingly, I would exclude the evidence found on the computer and all of the statements made by the appellant. Since there is no other evidence on which to found convictions, acquittals on the charges must follow.