COURT OF APPEAL FOR ONTARIO DATE: 20230131 DOCKET: C69168

Paciocco, Sossin and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Vadim Ilia Appellant

Counsel: Chris Rudnicki, for the appellant Raoof Zamanifar, for the respondent

Heard: January 24, 2023

On appeal from the conviction entered on January 4, 2021 by Justice Leslie Pringle of the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1] The appellant, Vadim Ilia, was convicted of charges of accessing and possessing child pornography after the trial judge rejected his application to exclude evidence located during the execution of search warrants at his mother’s place of business on Danforth Avenue, and at their shared residence on Townsgate Drive (the “Townsgate residence”). He appeals those convictions, arguing that the trial judge erred by denying his Charter application.

[2] After oral argument, we dismissed Mr. Ilia’s appeal for reasons to follow. These are our reasons.

MATERIAL FACTS

[3] The 2018 investigation that led to these charges was undertaken after police received information that a user was downloading files classified by law enforcement as containing child pornography, through an IP address linked by subscriber information to Mr. Ilia’s mother and the Danforth address. Surveillance and other evidence linked Mr. Ilia to this address, and also linked him and his mother to the Townsgate address.

[4] Based largely on this information, police obtained search warrants for the Danforth and Townsgate addresses pursuant to a single Information to Obtain (“ITO”). As part of the Charter application, the affiant officer who swore that ITO was cross-examined on the ITO with leave of the trial judge. As a result of the cross-examination, the ITO was amplified to include information that if the internet account designated by the IP address was not password protected (which was unknown), the network would be “open” and therefore accessible to others in the immediate vicinity of the Danforth address. Noting that the Danforth address is in a “densely packed urban location” the trial judge accepted that in the face of this amplified record, “without more, there is no reasonable and logical inference that the subscriber for an IP address is the user who downloaded the child pornography”, and therefore there would not be reasonable and probable grounds that evidence would be found in the locations to be searched.

[5] However, the trial judge found that this “gap” in the ITO was bridged by additional information, also found in the ITO, arising from an earlier, abandoned 2015 police investigation. That 2015 police investigation followed discovery that an IP address linked to Mr. Ilia’s mother at the Townsgate residence had been used to access child pornography through an email account linked to Mr. Ilia. The Crown conceded, and Mr. Ilia agreed, that information from the 2015 investigation could not assist in establishing whether there were reasonable and probable grounds for the warrant, but the trial judge disagreed. She reasoned that given the “improbability of coincidence that the same apparent parties were associated with an IP address and subscriber address used to access child pornography in 2015”, the ITO disclosed reasonable and probable grounds for the searches. She therefore found that there was no Charter violation arising from inadequate grounds for the warrants.

[6] However, the trial judge found a separate Charter violation arising from the fact that the Danforth Avenue warrant misdescribed this commercial address as “the dwelling house”. She went on to hold that the admission of the evidence in the face of this non-misleading, “careless” but “good faith” error would not bring the administration of justice into disrepute. But she noted that had it not been for her consideration of the 2015 investigation, she would have found there to have been no reasonable and probable grounds and would have excluded the evidence obtained during both searches.

ISSUES AND ANALYSIS

[7] Mr. Ilia argues that the trial judge erred in relying on the 2015 investigation to bridge the gap in the reasonable grounds that she had identified.

[8] First, he points out that information about the 2015 investigation is found in the “Background of the Investigation” section of the ITO but is not included under the heading “Grounds to Believe that the Things to be Seized are at the Place to be Searched”. He infers, based on this, that the affiant did not rely on the 2015 investigation in forming his subjective grounds and argues that information from the 2015 investigation is therefore not available information in assessing the reasonableness of his grounds.

[9] We accept that an officer must have had subjective knowledge of information at the time they formed their belief for that information to be consulted by a court in assessing the reasonableness of the officer’s subjective belief. After all, the issue is whether the officer’s belief was reasonable, and this is determined by asking whether a reasonable person “standing in the shoes of the police officer”, or “placed in the position of the officer” would have believed that reasonable ground existed: R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at paras. 16-17. For this reason, amplification of a search warrant ITO is restricted to information that was available to the affiant at the time an ITO is sworn: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 43; R. v. Araujo, 2000 SCC 65, [2005] S.C.J. No. 65, at para. 59; and R. v. Sadikov, 2014 ONCA 72, at para. 85.

[10] We need not address the more subtle question implicit in Mr. Ilia’s submission, of whether a reasonableness inquiry is confined to the facts an officer knew and subjectively relied upon in forming their grounds. We need not do so because Mr. Ilia’s contention that the affiant did not consider the 2015 investigation in forming his subjective grounds rests, in our view, on an unduly narrow and technical reading of the ITO.

[11] As Doherty J.A. commented in R. v. Green, 2015 ONCA 579, at para. 18:

[T]he ITO must be read as a whole in a common sense manner and having regard to its author. Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor.

[12] Bearing this direction in mind, we are not persuaded by the technical structure of the ITO that information from the 2015 investigation, known to the affiant at the time he swore the ITO, played no role in the formation of his subjective grounds. It is difficult to imagine that circumstantial information linking Mr. Ilia and his mother in 2015 to an IP address that had been used to access child pornography did not influence the affiant’s subjective beliefs. Moreover, there were other details in the ITO that were not included in the “Grounds to Believe that the Things to be Seized are at the Place to be Searched” section of the ITO that were necessary to the warrant, such as the particulars of how the relevant images satisfied the legal definition of child pornography. It is therefore an unsafe assumption that the information that the affiant took into subjective consideration was hermetically sealed in only one section of the ITO. Notably, this suggestion was not put to the affiant during his cross-examination.

[13] Notwithstanding the trial Crown’s concession to the contrary, we are therefore persuaded that the 2015 investigation was available for consideration by the issuing judge and the trial judge on review.

[14] Second, Mr. Ilia argues that information from the 2015 investigation could not make up for the deficiencies in the ITO because it is from a “dated, uncharged, unproven, and uncorroborated investigation”. He questions the reasonableness of the trial judge’s inference. We see nothing problematic in her reasoning on this point.

[15] It is important to appreciate that the trial judge did not invoke only the fact that there had been a child pornography investigation related to Mr. Ilia to support her conclusion. Instead, she relied upon: (1) the facts that precipitated the investigation, namely the use of an IP address to access child pornography, and (2) the facts uncovered during that 2015 investigation about who that IP address was linked to, and where it was located. Put more directly, the information the trial judge relied on was that in 2015 child pornography was accessed by an IP address with links to Mr. Ilia and his mother, the very people linked to the IP address that accessed child pornography at the Danforth address in 2018. Without question, this information logically increases the probability that it was Mr. Ilia or his mother who accessed the child pornography in 2018 at the Danforth address, which, in turn, increases the probability that evidence would be found at the Danforth address.

[16] It is also important to bear in mind that this was an ITO, not a trial governed entirely by rules of evidence. “Facts” relied upon in an ITO do not have to be “proven” or “corroborated” to be available for consideration. It has long been settled that reasonably reliable hearsay evidence can be considered in forming reasonable and probable grounds: R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, at para. 52; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 61. Here the affiant swore that he believed the information in the ITO, including information relating to the 2015 investigation, a belief that was entirely reasonable. Nor is it a problem in an ITO that the 2015 investigation raised character evidence issues arising from conduct several years before, which may have been an impediment in a trial: R. v. James, 2019 ONCA 288, at paras. 55-59, per Nordheimer J.A. (dissenting), rev’d 2019 SCC 52 for the reasons of Nordheimer J.A.. We reject the submission that information from the 2015 investigation did not support the trial judge’s reasoning.

[17] Even leaving aside the points just made, Mr. Ilia’s appeal based on the allegedly improper use of the 2015 investigation would have to be dismissed on the simple basis that there was no “gap” in the evidence that required closing in order to establish reasonable and probable grounds. As the Crown argues, reasonable grounds can co-exist with exculpatory possibilities: R. v. Ha, 2018 ABCA 233, [2018] A.J. No. 801, at para. 34 and at paras. 82, 85 and 89, per Slatter J.A. (concurring); R. v. MacCannell, 2014 BCCA 254, [2014] B.C.J. No. 2069, at paras. 45-46; and see Bush, at para. 58. To hold otherwise would effectively be to insist on the standard of proof of beyond a reasonable doubt to obtain a search warrant, when “reasonable and probable grounds” is a threshold investigative standard. This standard requires only a “reasonable” or “credibly-based” probability, a standard even below the balance of probabilities: R. v. Baron, [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, at 531-532, per Sopinka J.; Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; and Ha, at para. 89, per Slatter J.A. (concurring).

[18] There can no doubt come a point when alternative innocent possibilities are so likely that they may undermine a finding of reasonable probability relating to the relevant incriminating inference. However, in this case, the possibility of a third-party use of the internet signal was predicated on the theory that if the Danforth network was not password protected, someone else could have intercepted the signal, and there was no evidentiary basis to suggest either of these conditions. The prospect of third-party access in this case was not the kind of weighty alternative possibility that could undermine the credibly-based probability that the IP address was used by someone at the Danforth address.

[19] Finally, it must also be remembered that the relevant issue is not whether there were reasonable and probable grounds to believe that Mr. Ilia was committing a crime at the Danforth address. This was a search, not an arrest. As Fairburn J. (as she then was) explained in R. v. Nguyen, 2017 ONSC 1341, [2017] O.J. No. 1327, at paras. 58-60, no individual need be linked to the alleged crime for a search warrant to issue. In this case, the material inquiry was whether the affiant had reasonable and probable grounds to believe that a Criminal Code offence had occurred, and that evidence of that offence would be found at the Danforth address. In our view, in the circumstances of this case, the information available to the affiant that child pornography had been accessed through an IP address linked to the Danforth address and to Mr. Ilia’s mother was enough to provide reasonable and probable grounds relating to the Danforth commercial address. [1]

[20] Put simply, there was no need for the trial judge to look to the 2015 investigation to close the gap because there was no gap. Any errors she may have made in considering the 2015 investigation would therefore have been immaterial, requiring this ground of appeal to be dismissed. [2]

[21] We therefore rejected Mr. Ilia’s appeal.

“David M. Paciocco J.A.”

“L. Sossin J.A.”

“L. Favreau J.A.”

[1] The affiant relied on his experience to persuade the issuing judge that the link between Mr. Ilia and his mother and the Danforth IP address provided grounds for the Townsgate warrant. Since this issue was not raised on appeal, we will not address it.

[2] Since Mr. Ilia’s appeal of the s. 24(2) ruling was contingent on us accepting this ground of appeal, we need not address it.