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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20231020 DOCKET: C69906

Paciocco, Copeland and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Richard Lambert Appellant

Counsel: Jon Doody, for the appellant Rebecca De Filippis, for the respondent

Heard: September 11, 2023

On appeal from the conviction entered on September 13, 2021 by Justice Marc D’Amours of the Ontario Court of Justice, sitting without a jury.

Paciocco J.A.: OVERVIEW

[1] The appellant, Richard Lambert, appeals his convictions on three counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46. He argues that the trial judge erred in finding that s. 8 of the Canadian Charter of Rights and Freedoms did not apply because it was not “engaged” when, on two occasions, Ms. Lecompte, the appellant’s wife at the time, turned family computers over to the police that contained evidence that he had been accessing child pornography. Mr. Lambert submits that, on both occasions, “seizures” occurred within the meaning of s. 8 that could not lawfully be undertaken by the police without a warrant.

[2] Mr. Lambert also argues that s. 8 was violated by the failure of the police to file “as soon as [was] practicable” a return relating to the first seizure, as required by s. 489.1 of the Criminal Code.

[3] He submits that, together, these breaches require the exclusion of the evidence extracted from the computers, pursuant to s. 24(2) of the Charter, in order to preserve the repute of the administration of justice.

[4] During the Charter voir dire, the sole question that was litigated was whether s. 8 of the Charter applies if someone with a shared privacy interest in a computer, hands it over to the police of their own initiative. As indicated, the trial judge concluded that s. 8 was not “engaged” in these circumstances. He therefore dismissed the Charter challenges relating to the two computers. He also concluded that s. 489.1 did not have to be complied with until the police obtained warrants that would permit forensic analysis of the computer data.

[5] For the reasons that follow, I conclude that the trial judge erred in these determinations.

[6] As I will explain, s. 8 of the Charter is engaged for consideration if there has been a search or seizure within the meaning of s. 8. Where this has occurred and a Charter application has been brought, a trial judge must determine whether the search or seizure was reasonable. The trial judge did not inquire into the reasonableness of the seizures in this case because he erroneously determined that seizures had not occurred within the meaning of s. 8. [1] In my view, seizures occurred within the meaning of s. 8 when the police took control over the computers in which Mr. Lambert had a reasonable expectation of privacy.

[7] However, I disagree with Mr. Lambert that the seizures would only be lawful if done pursuant to a warrant. Provided the police had reasonable grounds to believe that the computers were used in the commission of an offence or would afford evidence of an offence, the computers could be seized without warrant pursuant to s. 489(2) of the Criminal Code. The uncontested evidence shows that the seizing officer had such grounds relating to the first seizure, so no breach occurred in the seizure of that computer. It is possible that a breach occurred relating to the second seizure. However, I need not decide whether this is so as I would not exclude the evidence obtained as a result of the second seizure, in any event.

[8] Section 8 was violated relating to the first seizure by non-compliance with s. 489.1, since the first return to a justice was not filed “as soon as [was] practicable”. The trial judge did not recognize this breach because of his erroneous holding that s. 8 of the Charter was not engaged. I would not exclude the evidence obtained from the first seizure as a result of this Charter breach.

[9] I would therefore dismiss the appeal.

MATERIAL FACTS

Computer 1

[10] Mr. Lambert and his wife, Ms. Lecompte, separated in 2016 but both continued to live in their home. They shared a living room computer (“Computer 1”) that was linked to their television screen. On April 23, 2016, while alone in the home, Ms. Lecompte happened upon suspicious websites that had been accessed on the computer. The titles suggested that the files may contain child pornography. She reviewed images of teen girls “looking like, around 12-11,12, 13 years old”. She was unsure whether they were actually underage, or “18-year-olds, dressing up as pre-teen girls”. When Mr. Lambert returned home, she confronted him, and he left.

[11] Ms. Lecompte took Computer 1 and locked it in the trunk of her car. It remained there until, after some delay, on May 14, 2016, she brought it to her area OPP station and handed it over to the police. She had an incomplete memory of events leading up to the handover.

[12] The officer who ultimately received it, PC Cunning, was a police officer with approximately four years experience at the time. He had little experience with child pornography investigations and had never drafted a search warrant.

[13] He testified that he was dispatched to the police station upon Ms. Lecompte’s arrival and met her in the parking lot. Constable Cunning testified that Ms. Lecompte advised him in the parking lot that “she had found what she believed to be suspected child pornography on a computer that was in her residence”. The computer was still in her trunk. He testified that he asked her to bring the computer into the station but did not recall who carried it inside.

[14] Ms. Lecompte was then brought into the station where she wrote out a statement. The details of her statement were not completely recounted in testimony during the voir dire, nor was her statement admitted into evidence. However, PC Cunning prepared three distinct Information to Obtain affidavits (“ITOs”) while attempting to secure a search warrant that would permit Computer 1 to be forensically analysed. The ITOs were put into evidence during the voir dire. According to the summaries in the ITOs, the written statement that Ms. Lecompte provided included information that Mr. Lambert had previously been observed accessing pornography on the computer, including “images of young adolescence [sic], mostly Russian”. The ITOs reported that Ms. Lecompte subsequently searched the computer, which only the two of them had access to, finding sites that had the word “teen” in the titles. She reported that she subsequently viewed one site that had a photograph of a young girl, possibly as young as ten to eleven years old, fully naked with the shadow of another figure standing over her.

[15] Constable Cunning testified that after Ms. Lecompte wrote her statement, “the computer was subsequently turned over to myself [and] lodged in the … secured property vault”. He did not testify that he viewed the contents of her statement before doing so but it is probable that he did so, given the sequence of events. Constable Cunning also testified that he did not view the contents of the computer at any time. He said, “I wouldn’t have allowed her to take the computer back”. When asked why, he said, “[b]ecause I believed there was child - have to say child pornography on the computer”. He affixed a seal to the computer.

[16] On May 16, 2016, before he authored any of the ITO affidavits, PC Cunning contacted the OPP Technological Crime Unit (the “TCU”) for assistance on how to author an ITO to secure a search warrant to seize the computer from the detachment vault so that it could be forensically examined. The TCU officer recommended that he conduct further investigation. He did so, interviewing Mr. Lambert, and he began drafting the ITO.

[17] On May 18, 2016, PC Cunning also reached out to other OPP resources, including Det. Paddon of the Child Sex Exploitation Unit. Detective Paddon expressed her opinion that he did not have reasonable and probable grounds for the warrant.

[18] On June 21, 2016, and June 22, 2016, PC Cunning received phone calls from Mr. Lambert asking for the return of Computer 1, which PC Cunning refused, telling him it would not be released until the end of the investigation.

[19] On June 23, 2016, PC Cunning retrieved the computer and removed the cover to secure the serial number, replacing the initial seal.

[20] On July 14, 2016, using the first ITO that he had drafted, PC Cunning secured a search warrant from a justice of the peace (“search warrant 1”). This warrant was not executed because an officer he consulted at the TCU believed the search warrant had misdescribed the thing to be searched.

[21] On July 19, 2016, PC Cunning prepared a report to a justice for the computer in his possession. It was filed on July 28, 2016 (the “first report to a justice”).

[22] In a revised second ITO, PC Cunning described his error and obtained a second search warrant on July 19, 2016 (“search warrant 2”). This warrant was not executed before its August 1, 2016, expiry date because PC Cunning expected the TCU to arrange to pick the computer up, but the TCU expected him to convey it to Orillia, a significant distance.

[23] Constable Cunning prepared a second report to a justice which was filed on October 21, 2016 (the “second report to a justice”).

[24] Because of his schedule, PC Cunning delayed obtaining a third warrant, which he was able to do on November 4, 2016 (“search warrant 3”), using a third ITO. He executed search warrant 3 on December 2, 2016, and then transported Computer 1 to Orillia for forensic examination.

[25] On December 6, 2016, PC Cunning prepared a third report to a justice, which was filed on December 19, 2016 (the “third report to a justice”).

[26] During the delay, Ms. Lecompte contacted the police on a monthly basis to find out what was happening with their investigation.

Computer 2

[27] By November 2016, Ms. Lecompte had moved into an apartment but continued to have access to their family home. When in the family home, she also had access to the computer Mr. Lambert acquired to replace Computer 1 (“Computer 2”). For weather-related reasons she elected to stay at the home on November 24, 2016. While using Computer 2 she discovered concerning websites that bore titles such as “Plump Pre-teens on a Beach”, as well as links to voyeurism websites. On this occasion, she did not review images that could be child pornography, but quickly turned the computer off.

[28] The next day, Ms. Lecompte phoned the OPP station and spoke to Det. Oickle. She asked about the investigation of Computer 1 and told Det. Oickle she saw things on Computer 2 that made her uncomfortable, expressing concern that Mr. Lambert was engaging in voyeurism.

[29] The house was sold around Christmas of 2016, with an anticipated closing date of January 19, 2017. While packing papers in anticipation of that closing, Ms. Lecompte discovered a computer pathway written on one of Mr. Lambert’s papers which prompted her to investigate Computer 2, ultimately leading her to discover a list of files that she again found concerning. She called the OPP detachment again, on January 13, 2017. She does not recall who she spoke to, but it is common ground that the call was routed to PC Benoit. She testified that she “said on the phone, what [she] found” but she did not provide details in her testimony of what she had communicated. She asked what to do. She testified that the officer she spoke to asked her whether she felt she could bring the computer in. She said she told the officer that she did not feel safe doing so until the move from the house was completed. She was asked to come in and provide a statement.

[30] Constable Benoit testified that he was the one who spoke to Ms. Lecompte when she called. He testified that he learned through dispatch that she was “reporting that her husband had child pornography on his computer. She had previously reported this in 2016, and that she had found additional child pornography on another computer”. Ms. Lecompte told him directly that she “had observed wording that would suggest child pornography had been downloaded on the computer”. She explained that she became suspicious because of the 2016 incident. While testifying, Ms. Lecompte said that she had seen titles that would suggest these were toddlers.

[31] On January 13, 2017, Ms. Lecompte attended the police station and gave a video recorded statement to PC Benoit. She was not asked in her testimony what she told PC Benoit.

[32] Constable Benoit testified that he wanted more detail of what she had observed, and she told him she had taken screen shots from Computer 2. He asked her to email them to him and she did so. Forensic evidence establishes that the screen shots were taken between November 24, 2016, and January 13, 2017. They were made Exhibit 1 at the trial and contained identification information from Computer 2 and file lists. The file lists included voyeurism titles. Other titles included “plump preteens on a beach” and a number of the file names referred to “teens”. These screen shots were emailed to PC Benoit on January 13, 2017.

[33] Constable Benoit testified that at the time he did not seek an immediate search warrant because there were no exigent circumstances, as Ms. Lecompte wanted to turn the computer in to the police herself. He also testified that Det. Thompson of the Child Exploitation Unit expressed the view that “the evidence would not disappear”.

[34] On January 16, 2017, an OPP forensic examiner, Det. Gibbons, began the examination of Computer 1, which continued until February 2, 2017. By that time, Ms. Lecompte had already turned Computer 2 over at the local OPP detachment in circumstances I am about to recount.

[35] The turnover of Computer 2 by Ms. Lecompte occurred as follows.

[36] On Sunday, January 15, 2017, she had the moving truck stop at the OPP detachment. She had not spoken to anyone since speaking to PC Benoit on January 13, 2017. She does not recall who she turned the computer over to during her brief visit at the detachment. She testified that she handed Computer 2 over without being asked to start it up, and “signed the papers”.

[37] Constable Bourgeois testified that he received the computer from Ms. Lecompte while doing inventory at the OPP detachment. He had been informed by PC Benoit in a quick briefing that “potentially a person would turn over a computer”. Constable Benoit had also sent an email to the platoon, but Constable Bourgeois did not testify to having read it, nor were its contents unfolded in the evidence.

[38] Constable Bourgeois testified that when he admitted Ms. Lecompte into the police station, she had what would prove to be Computer 2 in her hands. He testified, “she turns it over to me. I take it”. He recorded the make, model, and serial number, had her fill out a form confirming that she turned the computer over to the police and locked the computer in the police inventory area. When asked if he had discussed the contents of the computer with her, PC Bourgeois said, “I was receiving”, which I take to be an indication that he did not discuss the contents with Ms. Lecompte. He said he collected the password.

[39] On January 26, 2017, Computer 2 was removed by the OPP from the local OPP detachment office and transported to Orillia where it was kept pending the execution of a warrant that was being prepared to facilitate its forensic examination.

[40] On February 2, 2017, a search warrant was issued permitting the forensic examination of Computer 2 (“Computer 2 search warrant”), and Computer 2 was sent for forensic examination. Detective Gibbons provided the ITO for the Computer 2 search warrant. By the time she drafted the warrant she had observed the material extracted from Computer 1, which she confirmed contained child pornography. She described this in the ITO for the Computer 2 search warrant. When cross-examined during the trial Det. Gibbons agreed that this formed the core of her reasonable and probable grounds. She said:

The computer – my understanding was seized, because there was believed to be evidence of child pornography as the result of some titles adjusted – leading to child pornography, or also to – or sorry – adult pornography, but also to child pornography. We don’t use that definitively. We always made sure that the titles are, in fact, what they suggest they are. So, yes, during my categorization process there was evidence, which led me to believe that there likely would be evidence on the second computer – because of the evidence found on the first one.

I was gonna say, I believe the second computer as well. There was [sic] titles suggest – titles were suggestive of child pornography as well.

[41] On February 8, 2017, a report to a justice was filed relating to Computer 2 (“Computer 2 report to a justice”).

The Charter Ruling

[42] Mr. Lambert brought a Charter application at his trial seeking the exclusion of the evidence. He argued that the police breached s. 8 by unreasonably seizing both of the computers and failing to file a report to a justice of the peace relating to the turnover of Computer 1. In making this latter submission he relied, specifically, on the delay between May 14, 2016, when Computer 1 was turned over and July 28, 2016, when the first report to a justice was filed.

[43] The trial judge denied the Charter motion in its entirety. He held that the police seized the computers, but “[s.] 8 of the Charter is not engaged when Ms. Lecompte voluntarily brings computers to the police”. He said s. 8 was engaged only when the police attempted to access the data on the computers, which was done pursuant to search warrants that were not challenged. Given this ruling, he concluded that the handover of Computer 1 and Computer 2 did not breach the Charter.

[44] As indicated, the trial judge also found that s. 489.1 did not have to be complied with relating to the turnover of the computers because s. 8 was not engaged. He ruled that even if a breach of s. 8 occurred as the result of a seven-day delay in filing the second report to a justice relating to Computer 1 after the expiry of the first report to a justice, the admission of the data from Computer 1 would not bring the administration of justice into disrepute.

ISSUES

[45] Three general issues arise on this appeal.

A. Did the trial judge err in finding that s. 8 of the Charter was not engaged when the police received the computers from Ms. Lecompte, and by failing to find s. 8 breaches?

B. Did the trial judge err in failing to find a breach of s. 8 of the Charter, arising from the delay in filing a report to a justice between the handover of Computer 1 on May 14, 2016, and July 28, 2016, when the first report to a justice was made?

C. If any breaches occurred, should the evidence be excluded pursuant to s. 24(2) of the Charter?

ANALYSIS

A. Did the trial judge err in finding that s. 8 was not engaged when the police received the computers from MS. LEcompte?

[46] It is important to emphasize that the focus of this ground of appeal is not on whether s. 8 was breached by Ms. Lecompte’s act of removing the computers from their house. The Charter applies only to the conduct of the state and state agents, and there is no suggestion that she was acting as a police agent: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25. The issue is whether the trial judge erred by finding that s. 8 was not “engaged” when the police accepted the handovers and took control of the computers, and if so, whether he also erred by failing to find that s. 8 was breached on each occasion.

[47] The term “engaged” is not a term of art, but it is not uncommonly used in s. 8 Charter decisions to describe the necessity of dealing with whether a s. 8 breach has occurred: see, for example, R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 36. The obligation to do so arises where a Charter claimant establishes that there has been a “search or seizure” within the meaning of s. 8. If the Charter claimant does so, the trial judge is then obliged to consider whether the search or seizure was reasonable. This is what I take the trial judge to have meant when he used the term “engaged”. His finding that s. 8 was not “engaged” was based on his understanding that the “seizure” that occurred was not a “seizure” within the meaning of s. 8. [1] In my view, the trial judge erred in making this finding.

The Error in Finding that s. 8 was not Engaged

[48] For analytical clarity, there are three distinct components in determining whether a “search or seizure” occurred within the meaning of s. 8: (1) did the Charter claimant have a reasonable expectation of privacy in the subject of the alleged search or seizure; (2) was the impugned act a “search or seizure”; and (3) did the impugned act involve the state action required to constitute a search or seizure within the meaning of s. 8?

[49] The first component is not in issue in this appeal. The parties agree that Mr. Lambert had a reasonable expectation of privacy in the subject of the search or seizure. As Karakatsanis J. pointed out in R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, paras. 29-30, the subject of the search is the thing the police are ultimately after. In the case of a computer, that will generally be the data.

[50] The parties also agree that even though Ms. Lecompte had a reasonable expectation of privacy of her own in the computers, her consent to having the police take possession of the computers “cannot nullify a reasonable expectation of privacy that [Mr. Lambert] would otherwise have in the shared computer”: Reeves, at paras. 41, 52.

[51] And they agree that given the shared privacy interest, Mr. Lambert’s privacy interest is limited, but it is not eradicated: Reeves, at para. 47. I would add that even when limited, the privacy interest in a computer is high, because “computers store immense amounts of information, some of which, in the case of personal computers, will touch on the ‘biographical core of personal information’”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 41, quoting R. v. Plant, [1993] 3 S.C.R. 281; Reeves, at para. 34.

[52] The parties disagree on the remaining two components required for a seizure to occur within the meaning of s. 8. Mr. Lambert contends that a “seizure” occurred and there was ample state action to trigger s. 8. The Crown submitted before us that “the passive acquisition of the computers” did not constitute a seizure (hence the second component is not met), and that the kind of state action involved in this passive acquisition is not the kind of state action required to trigger Charter protection (hence the third component is not met).

[53] The decision in Reeves appears to have left these submissions open to the Crown. In Reeves the majority of the Supreme Court of Canada held that the Charter was violated when the police attended at the home that Mr. Reeves shared with his spouse and seized a computer with the consent of Mr. Reeves’ spouse, who shared a reasonable expectation of privacy in the computer with Mr. Reeves. The majority held, at para. 4, that a valid search warrant was required in the circumstances of that case because “[t]he consent of Reeves’ spouse did not nullify his reasonable expectation of privacy, or operate to waive his Charter rights in the computer”. The Crown in Reeves had argued against this position, stressing the policy argument that such a holding “will prevent victims of crime who have received threatening or harassing text messages from showing them to the police”: Reeves, at para. 46. Karakatsanis J., for the majority, chose to leave that issue open. She said, “[h]owever, the issue of whether s. 8 of the Charter is engaged when a private citizen offers information or an item to the police in which another person may have a reasonable expectation of privacy does not arise in this case …. The issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day”: Reeves, at para. 46.

[54] It is arguable that this issue is open to the Supreme Court of Canada by way of reconsideration, but not open to this court, since the Supreme Court of Canada does not appear to have left this issue open in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 5, 19-22, 32, 59, 65-66. There the majority found that s. 8 was engaged, and breached, by a seizure that occurred when police took possession of a computer and discs of data copied from the computer after they were “handed over” to the police by school authorities. [2]

[55] In stating that the issue was open in Reeves, Karakatsanis J. referenced other authorities, including R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525 at para. 34, where Doherty J.A. also addressed policy concerns when he too left this general issue open for another day, after signalling his preliminary opinion that s. 8 should not be engaged where the police receive things that are delivered to them by non-state agents: [3]

I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.

[56] I, too, share the concern that s. 8 must not operate to frustrate reasonable investigative steps but, in my view, the solution does not depend on interpreting “seizure” narrowly, or taking an artificial view of what state action entails, which, with respect, I think the Crown position before us proposes. In my view, there are several more doctrinally sound and effective gatekeeping mechanisms available to ameliorate the general mischief that the Crown invoked in its submissions before us. First, in many cases the Charter will not be triggered because the Charter claimant will lack the requisite reasonable expectation of privacy in the item seized. Second, even where a reasonable expectation of privacy exists, the seizure may be lawful without a warrant pursuant to ss. 489(2) or 487.11 of the Criminal Code, and therefore Charter compliant. Third, even where the seizure does contravene the Charter, it may not bring the administration of justice into disrepute to admit the unconstitutionally seized evidence. This case is illustrative. As I will also explain below, in this case the Crown has demonstrated on the court record that the seizure of Computer 1 was reasonable, therefore no Charter breach occurred, and I am persuaded that even if the seizure of Computer 2 violated the Charter, the seized evidence should not be excluded from evidence.

[57] The first mechanism I describe – the fact that s. 8 is not engaged if the Charter claimant does not have a reasonable expectation of privacy in the information or thing searched – answers some of the policy concerns the Crown expressed in submissions before us.

[58] For example, the Crown expressed concern that if seizures within the meaning of s. 8 are not confined to the collection of evidence that the police initiate, this would prevent witnesses or confidential informants from reporting information they have about the criminal activity an accused person has engaged in. This is not so because individuals do not have a reasonable expectation of privacy in the knowledge that others have: see R. v. Molyneaux, 2020 PECA 2, at para. 51. Individuals with relevant information about criminal conduct are free to communicate this information to the police, without s. 8 being engaged.

[59] It also appears to be settled that a Charter claimant cannot reasonably expect that a person they share an expectation of privacy with will not disclose information they discover to the police, including after discovering it on an electronic device: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 41; Cole, at para. 73. In this case, had Ms. Lecompte only described what she had seen on the computers instead of handing the computers over, s. 8 would not have been engaged regardless of how extensive the information she provided was.

[60] In some cases, individuals may be permitted to deliver documents to the police without violating the reasonable expectation of privacy that another person may once have had in those documents. In R. v. Mawick, 2021 ONCA 177, at para. 54, for example, Rouleau J.A. held that the police were entitled to receive documents from a victim that were used by the accused to perpetrate the fraud he was charged with. That outcome can arguably be explained on the basis that a Charter claimant can have no reasonable expectation of privacy in items they have delivered to a victim in order to commit an offence. Notwithstanding the decision in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, it is also arguable that the same reasoning could apply where electronic messages sent by the Charter claimant to the victim are used as the means of committing the offence charged, such as the offence of threatening to cause death or bodily harm, or criminal harassment: see, for example, R. v. Amdurski #4, 2022 ONSC 1338, at para. 40. [4] If so, this would answer the concerns raised by Moldaver J. in his dissent in Marakah, at paras. 178-189, without constraining the meaning of “seizure” within s. 8 of the Charter.

[61] Printouts and copies of documents extracted from electronic devices that Charter claimants have an expectation of privacy in present more complex questions because of the heightened privacy interest in computer data. However, in R. v. King, 2021 ABCA 271, 405 C.C.C. (3d) 303, Mr. King’s spouse accessed his laptop computer because of suspicions of infidelity. Instead of finding proof of infidelity, she discovered child pornography, which she copied onto a USB flash drive that she brought to the police, who accepted it. Unlike this case, she did not bring the electronic device itself to the police. A panel of the Alberta Court of Appeal held that Mr. King did not have a reasonable expectation of privacy in the USB flash drive because in viewing it the police were not examining any thing or place that belonged to or was under King’s control, but rather information his spouse had gathered, and the police never intruded on his laptop. Hence, in the panel’s view, s. 8 was not engaged. [5] And in R. v. Campbell, 2022 ONCA 666, 163 O.R. (3d) 355, leave to appeal allowed, [2022] S.C.C.A. No. 436, Trotter J.A. expressed, at para. 62, his view that in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R, 320, the Supreme Court of Canada carved out an exception to Marakah where electronic communications themselves constitute a crime.

[62] My general point, of course, is that in many cases, the reasonable expectation of privacy examination will prevent reliance on s. 8 to impede reasonable police investigations, even if “seizure” is not narrowly defined within the meaning of s. 8.

[63] The second mechanism that limits the impediment that s. 8 will prevent to effective policing – that even when s. 8 is engaged, there will be no violation of s. 8 unless the search or seizure was unreasonable – is perhaps the most important such mechanism. By taking witness statements that set out reasonable and probable grounds, police can secure search warrants to seize relevant evidence and contraband without engaging in warrantless seizures. Indeed, it will not be uncommon for the police to be lawfully permitted to seize, without-warrant, items that have been brought to them. In Cole for example, Fish J. said at para. 65, “police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained” (emphasis original). Apart from any common law power to do so that may exist, s. 487.11 of the Criminal Code, permits, for example, the exercise of warrant powers without a warrant in exigent circumstances if the conditions for obtaining a warrant exist, while s. 489(2) of the Criminal Code permits peace officers acting in the course of their duty to seize any thing that they believe on reasonable grounds has been used in the commission of an offence or that will afford evidence of an offence. It will not be uncommon for these provisions to be available to permit the seizure of items of evidence brought to the station, thereby ameliorating the policy concerns expressed in Orlandis‑Habsburgo.

[64] Finally, as I have indicated, even where s. 8 of the Charter is engaged and has been breached, the evidence obtained will not be excluded from evidence unless the Charter claimant shows that its admission in the proceedings would bring the administration of justice into disrepute. In Cole, for example, the incriminating evidence housed in the computer and preserved on a copied disc was admitted into evidence, despite the breaches the court identified.

[65] In light of this, I am not persuaded that policy concerns require imposing a narrow meaning on the term “seizure” in s. 8 or necessitate imposing the restricted view of state action that the Crown argues for. Nor am I persuaded that doing so is consistent with principle, the authority, or the language of s. 8.

[66] As indicated, the Crown argued that “the passive acquisition of the computers” did not constitute a seizure (hence the second component is not met), and that the kind of state action involved in this passive acquisition is not the kind of state action required to trigger Charter protection (hence the third component is not met). Both submissions can be addressed together, and my position can be simply put. I am persuaded that state action occurred and resulted in a seizure when the police accepted the computers and took control over them to the exclusion of Mr. Lambert, thereby impeding his reasonable expectation of privacy.

[67] In my view, it mischaracterizes events to describe either of the two handovers of the computers to the police as the “passive receipt of an item” by the police. To maintain that characterization, one would have to focus solely on who initiated the transfer of control of the computers to the police while disregarding the crucial fact that the police took active steps to assert control over those computers. On both occasions the police physically took the computers that were offered from Ms. Lambert, secured them, and lodged them, thereby preventing Mr. Lambert from having access. This was not “passive receipt”. By accepting the computers, the police actively took and exercised control over them to the exclusion of Mr. Lambert.

[68] In Cole, at para. 34, Fish J. offered simple definitions of a “search” and a “seizure”. He said, for the majority, that “[a]n inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”. Describing a seizure as a “taking” is consistent with the definition of seizure that was adopted in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431, where La Forest J. said, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent”. In defining “seizure” in this way, I do not understand La Forest J. to be saying that the police must initiate the taking. Indeed, La Forest J. explained his rejection of the Crown submission that a police officer did not seize a vial of blood when he accepted it from the doctor, saying at para. 30: “the matter that has compelling weight, is that when the officer took the sample from the doctor, he took something that the doctor held for medical purposes only, subject to a well-founded expectation that it was to be kept private” (emphasis added). It is clear from this comment and the underscored language he used, that when La Forest J. defined a “seizure” as a “taking”, he intended to include the act of taking control of the thing that had been offered without the consent of a person holding an expectation of privacy in that thing. He did not intend his definition to apply solely to police-initiated acts of taking.

[69] Similarly, in Cole, the school board handed the work computer that contained data confirming that Mr. Cole had been accessing child pornography to the police: Cole, at para. 5. The police did not initiate the transfer of control of the computer, but they accepted it, taking the computer without a warrant. As I have described, the police were found to have seized the computer.

[70] It is important to appreciate that, as Fish J. makes clear in Cole, the definition of both “search” and “seizure” are tied to the underlying purpose of s. 8, which is to protect reasonable expectations of privacy: see also R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at p. 236. Interpreting those terms in light of their purpose respects the direction of Dickson C.J.C. in Hunter v. Southam, [1984] 2 S.C.R. 145, at pp. 156-157 to interpret Charter rights purposively. In R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 63, La Forest J. reaffirmed that direction, affirming that s. 8 must be interpreted “liberally and purposively” to protect “the privacy of the individual which is what s. 8 is aimed at”. I am persuaded that the term “seizure” is not being interpreted purposively if it is confined to initiated acts of police taking. In my view, consistent with the definition of “seizure” embraced by the Supreme Court of Canada, the term “seizure” must embrace any investigative conduct by the police in which they take control of a thing, to the exclusion of a person holding a reasonable expectation of privacy in that thing.

[71] I would also note that the narrow conception of “seizure” that the Crown appears to be offering is flatly inconsistent with the fact that a seizure is an ongoing act. As La Forest J. recognized in Colarusso at p. 63, “the protection against unreasonable seizure is not addressed to the mere fact of taking” which may be the “lesser evil”, but in keeping with the need to protect privacy, “[t]he matter seized … remains under the protective mantle of s. 8 so long as the seizure continues”: see also, R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at para. 40. If the scope of “seizure” was understood to be confined to initiated acts of taking, this would prevent s. 8 from fulfilling this function. As La Forest J. admonished in R. v. Duarte, [1990] 1 S.C.R. 30, at p. 43, “the spirit of s. 8 must not be constrained by narrow legalistic classifications”.

[72] Moreover, the seizures that occurred clearly interfered with Mr. Lambert’s reasonable expectations of privacy. Any suggestion to the contrary is put to rest by the analysis Karakatsanis J. engaged in in her decision in Reeves. At para. 30, she explained: “[w]hen police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection” (emphasis original). Both forms of interference with Mr. Lambert’s privacy interests occurred here. The police conduct of accepting the computers from Ms. Lecompte and exercising control over them deprived Mr. Lambert of the use and control over the data held by the computers and gave the police dominion over the preservation of that data during the prolonged periods that the police held the computers.

[73] I am therefore persuaded that both computers were seized within the meaning of s. 8.

[74] As indicated, I am also satisfied that the police conduct that occurred is fully capable of meeting the state action requirement. I will elaborate. When the police accepted the computers, they sealed at least Computer 1, and they took custody of both computers by locking them in the designated area of the OPP station. After it was secured, PC Cunning exercised further control over Computer 1 by removing its cover and copying down the serial number of the hard drive. When Mr. Lambert twice requested the return of Computer 1, the police refused. After Computer 2 was secured, the OPP physically removed it from the local detachment and transported it to Orillia, a significant distance from Mr. Lambert. In my view, it is obvious that there was significant state action.

[75] During oral argument the Crown conceded before us in the face of the obvious control that the police were exercising over the computers that, at some undefined point in time, Computer 2 became seized. For Computer 1, the Crown argued this seizure crystalized when the police refused Mr. Lambert’s requests for the return of his computer. Regardless, the Crown maintained these seizures did not occur until after the police accepted the computers from Ms. Lecompte, thereby defeating the Charter challenges. With respect, and notwithstanding how well argued the Crown case was, I find the Crown’s attempt before us to cabin the seizures in this way and to distinguish the events on the dates the computers were received from the reach of s. 8 to be artificial, unworkable, and incorrect.

[76] I will make two final observations. First, I note that even PC Cunning clearly thought that a seizure had taken place with respect to Computer 1. He began filing s. 489.1 reports to a justice of the peace relating to Computer 1 weeks before he executed the search warrant. It is manifest that he chose to file these reports prior to executing the search warrant because he understood that he had seized Computer 1 when he took control of it.

[77] Second, I agree with the view expressed by counsel for Mr. Lambert that although Karakatsanis J. left open the question of whether a seizure occurs where information or an item is offered to the police, there is no principled or functional difference relative to the protected Charter rights between cases where the police accept such an offer and take control over the item, and cases where they initiate events before taking control over the item. The essence of a seizure is the taking of control itself and in both circumstances, the police are taking and exercising that control.

[78] I therefore conclude that the computers were seized within the meaning of s. 8 by state action when the police took control of them from Mr. Lecompte, and that the trial judge erred in finding otherwise.

Were the Seizures Unreasonable?

[79] Both seizures that occurred in this case were done without a warrant. Warrantless seizures are presumptively unreasonable: Reeves, at para. 14. The onus is therefore on the Crown to rebut that presumption by establishing that the seizures were reasonable: Reeves, at para. 14.

[80] “A search or seizure is reasonable ‘if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable’”: Reeves, at para. 14, quoting R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. Only the first precondition is at issue in this case. To succeed in avoiding a finding that the seizures did not violate the Charter, the Crown was obliged to show that the seizures were conducted with lawful authority.

[81] In Reeves, at para. 56, the Court commented that the trial Crown in that case had “not endeavoured to rebut the presumption [as it relied on the third party’s] consent to show that no seizure occurred”. A similar thing happened here. The Crown did not endeavour to rebut the presumption that its warrantless seizures were unreasonable because it relied solely on its contention that no seizures occurred within the meaning of s. 8. As a result, the trial judge in this case did not address the reasonableness of the seizures.

[82] I note that in Reeves, at para. 57, Karakatsanis J. nonetheless went on to consider whether any statutory or common law authority justified the seizure of the computer in that case. I will do the same, however, I want to be clear that the Crown cannot rely on lawful authority to justify the seizures unless evidence on the record shows that the officer who conducted the seizure believed that they had the lawful authority that the Crown is relying upon: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 21. Put otherwise, the Crown cannot rely on either of the two Criminal Code provisions I introduced in para. 63 above, namely, ss. 487.11 and 489(2) of the Criminal Code, unless the seizing officers turned their mind to whether they had such authority and concluded that they did.

[83] I will begin with s. 489(2), which provides:

489(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament;

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[84] I am satisfied on the trial record that the seizure of Computer 1 was authorized by s. 489(2)(c).

[85] First, I am satisfied that PC Cunning relied on this authority in assuming control over the computer. When asked whether he would have permitted Ms. Lecompte to take the computer with her when she left, he said no, explaining, “[b]ecause I believed there was child - have to say child pornography on the computer”. Although he did not name s. 489(2)(c), and he did not believe he had to invoke s. 489(2) because he believed he had Ms. Lecompte’s consent, he turned his mind to and claimed the power to seize Computer 1 because he believed the computer would afford evidence in respect of an offence. This, in my view, is enough to permit the Crown to rely on s. 489(2). Since PC Cunning was acting in the course of duty when he seized Computer 1, the remaining question is whether he had reasonable and probable grounds at the time of that seizure.

[86] A person has reasonable grounds when they believe that there is a credibly based probability that the material fact exists: Hunter v. Southam, at pp. 168-169. They must have more than a suspicion that the material fact exists, and must subjectively believe that the material fact is probable (the “subjective component”), based on information known to them that would enable a reasonable person placed in their position to be satisfied that the material fact is probable (the “objective component”): R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 48; R. v. Notaro, 2018 ONCA 449, 47 C.R. (7th) 229, at para. 39.

[87] The question, then, is whether PC Cunning, the officer who seized the computer, had reasonable and probable grounds. It is immaterial whether Ms. Lecompte had reasonable and probable grounds, since it is not her action that is being examined. I will therefore focus on PC Cunning’s state of mind and belief.

[88] Even though the trial Crown did not explore whether PC Cunning subjectively believed that it was probable that the computer would afford evidence in respect of an offence, the record shows that he did. In testifying that he believed there was child pornography on the computer he was asserting his firm subjective conclusion that he believed this to be so.

[89] I am also persuaded that PC Cunning’s subjective belief was objectively reasonable. It is settled law that the person forming the material belief is entitled to rely, in forming their conclusion, upon hearsay from a source that can reasonably be credited: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 61; R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1687-1688. It was reasonable for PC Cunning to accept as credible the information provided by Ms. Lecompte, if for no other reason than that she produced the computer in an effort to prove her allegation. Although the Crown did not closely explore the precise information that PC Cunning had received from Ms. Lecompte, and notwithstanding that PC Cunning tended to speak in conclusory terms about what Ms. Lecompte “believed to be suspected”, before seizing the computer he took a written statement from Ms. Lecompte that contains ample reasonable basis for concluding that the computer probably contained evidence of child pornography. I recognize that PC Cunning was not asked directly whether he reviewed her statement before seizing the computer. However, the standard of proof the Crown must present to establish that a search is reasonable is the balance of probabilities. In my view, it can be inferred from the sequence of events, with PC Cunning not taking control of the computer until her written statement was complete, that it is more probable than not that he reviewed the statement before seizing the computer.

[90] In concluding that the seizure of Computer 1 was authorized by law, I have considered the fact that when PC Cunning contacted Det. Paddon she advised him that she did not believe he had reasonable and probable grounds for the search warrant he was seeking. However, whether PC Cunning had reasonable and probable grounds does not turn on Det. Paddon’s opinion, for two reasons. First, PC Cunning had already seized Computer 1 before he spoke to her. Even if she injected subsequent doubt in his mind, it is his state of mind at the time of the seizure that matters, and he had the relevant subjective belief at the time. Second, the issue of whether PC Cunning had reasonable grounds is for this court. The outcome of this inquiry must turn on our evaluation of the evidence, not on Det. Paddon’s evaluation of whether PC Cunning had reasonable grounds.

[91] For these reasons, I am satisfied that PC Cunning had the reasonable grounds required by s. 489(2) for the warrantless seizure of Computer 1. Therefore, the trial judge did not err in finding that s. 8 was not breached when the police seized Computer 1.

[92] In my view, the outcome may be different with respect to Computer 2. I have reservations about whether the Crown has established reasonable and probable grounds relating to Computer 2, which would be required to permit reliance on s. 489(2) to demonstrate the reasonableness of its seizure.

[93] Assuming without deciding that the seizure was undertaken by PC Benoit, and that PC Bourgeois was merely assisting him with his seizure, the focus would have to be on the sufficiency of PC Benoit’s grounds. It is debatable whether the Crown has established that PC Benoit subjectively believed that he had reasonable and probable grounds to seize Computer 2. No evidence was led, in this regard, and it is debatable whether subjective grounds on his part can be inferred on this record. In the alternative, assuming that the seizure must be considered as having been conducted by PC Bourgeois when he physically received the computer, the evidence does not establish that he had reasonable and probable grounds because he did not interview Ms. Lecompte, and the Crown did not explore in any detail what information he had received from PC Benoit. Absent reasonable and probable grounds on the part of either officer, the Crown is not able to rely on s. 487.11 of the Criminal Code, the exigent circumstances provision, either. Section 487.11 provides:

487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

[94] Section 487.11 cannot be relied upon in the absence of reasonable and probable grounds because it is available only if the conditions for obtaining a warrant exist. The kind of warrant that would be required to seize a computer in these circumstances would require reasonable and probable grounds.

[95] I need not resolve the issues I have raised because even if a s. 8 breach occurred in seizing Computer 2, I would not exclude the evidence obtained, nor would this breach affect my decision to admit the evidence obtained from Computer 1. Before explaining my position on s. 24(2), I will examine the breach that allegedly occurred because of the failure by the police to comply with filing requirements of s. 489.1 of the Criminal Code, relating to Computer 1.

B. Did the trial judge err in failing to find a breach of s. 8, arising from the delay in filing a report to a justice between the handover of computer 1 on May 14, 2016, and July 28, 2016, when the first report to a justice was made?

[96] In explaining his conclusion that the Charter was not breached as the result of the delay in filing the first report to a justice, the trial judge said that no “warrantless search” had occurred to trigger s. 489.1. I am satisfied that when the trial judge said “search” he misspoke. He knew this was a seizure case, and s. 489.1 speaks of items being “seized” and does not use the term “search”. As I read the trial decision, he appears to have found that since, in his view, no seizure occurred within the meaning of s. 8, s. 489.1 did not have to be complied with to satisfy the demands of the Charter.

[97] I am persuaded that regardless of the precise line of reasoning the trial judge employed, his failure to find a Charter breach relating to the delay in filing the first report to a justice was an error. Section 489.1 applies to all seizures, including warrantless seizures: R. v. Backhouse, (2005), 194 C.C.C. (3d) 1 (Ont. C.A.). Where a peace officer seizes “anything” they must report to a justice “as soon as is practicable”. I have considered the explanations that PC Cunning offered for the delays that occurred, but I can see no basis for holding that it was not practicable to file the first report to a justice before July 28, 2016, a delay of approximately two months after Computer 1 was seized on May 14, 2016. The failure to comply with s. 489.1 is a Charter breach: Garcia-Machado. This is because a seizure is an ongoing event. During the delay that occurred before the report to a justice was filed relating to Computer 1, the ongoing retention of the computer, a continuing seizure, was not authorized by law and was therefore unreasonable, contrary to s. 8 of the Charter.

C. should evidence be excluded pursuant to s. 24(2)?

[98] I would not exclude any evidence as a result of the breaches or potential breaches I have identified. Although there is no question that the “obtained in a manner” precondition to exclusion in s. 24(2) of the Charter would be met with respect to the analysis of both computers, the admission of the results of the forensic analysis of the computers would not bring the administration of justice into disrepute. For convenience I will address the breaches and potential breaches separately in these reasons, but I have considered their cumulative effect.

[99] In determining whether Mr. Lambert has met his onus under the Grant test, he must persuade us, based on: (1) the seriousness of the breaches; (2) the impact of the breaches; and (3) society’s interest in the adjudication of the case on its merits, that, on balance, the admission of evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

The Contents of Computer 2

[100] I would find the breach relating to Computer 2, if it occurred at all, to be of only modest seriousness.

[101] Mr. Lambert has not established that the seizure of Computer 2, which led to the discovery of its incriminating data, would have resulted from a wilful or even negligent breach of his Charter rights. Constable Benoit, who arranged the seizure, clearly did so in good faith. He was in communication with superior officers who advised him not to examine the contents of the computer, a direction he obeyed. And he contacted the OPP provincial communication centre for guidance. It is clear that he was attempting to comply with the Charter. There can be no suggestion on the evidence that he or PC Bourgeois acted as they did in order to take a Charter shortcut.

[102] I am also persuaded that the failure to comply with the Charter, if it occurred, was not negligent, or careless, or even disinterested. Although there is no indication that the OPP officers PC Benoit contacted provided him with any direction on how to affect a seizure in the circumstances he was facing, this does not push the breach towards the bad faith end of the seriousness continuum. The law was unsettled at the time as to whether s. 8 is engaged when a computer is delivered to the police by a person with a shared reasonable expectation of privacy. Although Cole had rejected the third-party consent doctrine by the time the second seizure occurred on January 15, 2017, as this case and the obiter dictum in Orlandis-Habsburgo reflect, the implications and reach of Cole remain debated to this day. This is not a case where the police can be said to have been negligent, or careless in not knowing the law.

[103] Cumulative breaches can elevate the seriousness of Charter violations, and, assuming there was a breach in the seizure of Computer 2, Mr. Lambert would have established two breaches of s. 8 and he also identified missteps that delayed the execution of the first search warrant and the filing of the reports to a justice. However, this is not a case where a pattern of police conduct demonstrates a general attitude of disregard of, or disinterest in, Charter standards. The delays and missteps should not have occurred, but good faith explanations were offered by PC Cunning that are understandable when considered in the context of the reality of policing and the complexity of the law. In my view, cumulative events do not materially increase the seriousness of this violation.

[104] The Charter breach resulting from the unauthorized seizure of Computer 2, if it occurred, is therefore not of the kind of event that would raise serious issues about condoning police malfeasance or misfeasance, even when viewed in the larger context. As indicated, in my view, the seriousness of the alleged breach is modest.

[105] The impact of the unlawful seizure breach on Mr. Lambert’s Charter protected interests would be significant, if it occurred, but not extremely so. He was deprived of his use and control of Computer 2 as a result of its seizure, pending the execution of the search warrant, but the delay between seizure and warrant was brief, between January 15, 2017, and February 2, 2017. Although individuals have a heightened privacy interest in the contents of computers even when that interest is diminished by shared access, the police respected that privacy interest. They did not view the contents of Computer 2 before seizing it but relied on information that Ms. Lecompte was entitled to share with the police. Moreover, it is inevitable that Computer 2 was ultimately going to be seized had it not been taken from Ms. Lecompte, given what was found on Computer 1. This further attenuates the impact of this breach, if it occurred: Cole, at para. 95.

[106] With respect to the third Grant factor, the exclusion of evidence would impair the truth-seeking function of the trial. The contents of Computer 2, which Mr. Lambert seeks to have excluded, were reliable and essential to the counts relevant to Computer 2.

[107] On balance, the repute of the administration of justice would be better served by admission than exclusion, even assuming that the seizure of Computer 2 violated the Charter.

The Contents of Computer 1

[108] Constable Cunning breached s. 8 by failing to file the first report to a justice between the seizure of Computer 1 on May 14, 2016, and July 28, 2016. Even after considering the cumulative police conduct, including the unauthorized seizure of Computer 2 (on the assumption the seizure constituted a breach), I am not satisfied that Mr. Lambert has established that the admission of evidence of the forensic examination of the contents of Computer 1 would bring the administration of justice into disrepute.

[109] Once again, given the state of the authority at the time, it was not clear that a seizure occurred within the meaning of s. 8 and that a return had to be filed at all. To his credit, PC Cunning did so. Although it took him an unreasonably long time to accomplish this, there is no basis for concluding that he intended to disregard s. 489.1. He was careful, but inexperienced. Moreover, I have found the initial seizure of Computer 1 to be lawful, a factor this court considered in Garcia‑Machado, at para. 60. The breach was not a serious one.

[110] I do not find the impact of the breach on Mr. Lambert’s Charter protected interests to be significant. This is not a case where no report to a justice was filed. The report was delayed, but that delay had no impact on the outcome of the filing itself. “[H]ad the constable made the requisite report ‘as soon as practicable’, the justice of the peace would undoubtedly have ordered the detention”: Garcia‑Machado, at para. 63. The first report to a justice was filed within the month after Mr. Lambert made known that he wanted Computer 1 returned, and he never brought an application challenging the continued detention even after the report was filed. Mr. Lambert’s concession that this breach standing alone would not warrant exclusion reflects recognition of the modest impact it had on his Charter‑protected rights.

[111] With respect to the impact of admission on the truth-seeking function, the evidence secured from Computer 1 was reliable and essential to the count involving Computer 1. This third Grant factor pulls strongly in favour of admission.

[112] In coming to these conclusions, I do not wish to communicate that s. 489.1 is a mere technical provision. I recognize its importance, as explained by Hoy A.C.J.O., as she was then, in Garcia-Machado, at paras. 48-55. But this breach, even when considered in the context of all the circumstances, does not support the exclusion requested. The exclusion of the forensic examination of Computer 1 would be a wholly disproportionate response that is not in the interests of the administration of justice.

CONCLUSION

[113] I would dismiss Mr. Lambert’s appeal.

Released: October 20, 2023 “D.M.P.” “David M. Paciocco J.A.” “I agree. Copeland J.A.” “I agree. P.J. Monahan J.A.”

Footnotes

[1] The trial judge did not go on to consider whether the search was reasonable, a point I will return to below.

[2] The decision of this court, R. v. Cole, 2011 ONCA 218, 105 O.R. (3d) 253, overturned on other grounds, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 15, 78, also held that a seizure occurred with the handover of the computer and a disc containing data copied from the computer, but in analyzing the relevant breach, Karakatsanis J.A. (as she was then) focused on the unreasonable search that followed the seizure (at para. 79). Therefore, this court’s decision does not explicitly find that the seizure it identified was a “seizure” that would engage s. 8.

[3] The comment was obiter dictum because the delivery of the energy information was not on the energy provider’s sole initiative. The police and the energy provider had agreed that the energy provider would provide suspicious information.

[4] The trial judge offered multiple reasons for her decision that no s. 8 breach occurred where the victim’s mother turned over electronic communications to the police that were generated on the phone her daughter was using when the accused was committing sexual exploitation and human trafficking of a minor. Included among those reasons was the trial judge’s conclusion that s. 8 was not engaged because the phone was handed over to the police. As these reasons make clear, although I take no issue with the result in that case, I do not agree with that s. 8 was not engaged because the phone was handed over to the police.

[5] With respect, this decision may be difficult to reconcile with the Supreme Court of Canada decision in Cole where Cole was found to have a reasonable expectation of privacy relating to a disc that was created lawfully by school authorities to capture data from their shared computer.