R. v. Butters
Ontario Court of Justice (East Region)
Her Majesty the Queen v. David Butters
Before: Justice David M. Paciocco – Ottawa, ON
Reasons for Decision
Released: May 1, 2014
Counsel
Ms. D. Eastwood …………………………………………………………………….. for the Crown
Mr. E. Granger …………………………………………………………………….... for Mr. Butters
I. Introduction
[1] It is not contested that the evidence offered by the Crown proves that David Butters possessed child pornography. What is at issue is whether the key evidence the Crown relied upon to establish this is admissible. The defence contends that the search and seizure of the computer belonging to Mr. Butters taken from Mooney's Bay Computer, and the search and seizure of 30 still pornographic photographs of children taken from Mr. Butters' residence, violated section 8 of the Charter and require exclusion pursuant to section 24(2) of the Charter. This admissibility challenge was presented in a blended voir dire during the trial. Mr. Butters' counsel, Mr. Granger, concedes that if Mr. Butters' application for exclusion of this evidence is not granted, a conviction necessarily follows on the two possessions of child pornography counts Mr. Butters is facing. This is the decision on the admissibility of the fruits of the impugned searches and seizures, and ultimately, on Mr. Butters' guilt on counts 1 and 2, that he possessed child pornography contrary to section 163.1(4), on or about the 30th day of November 2012 (the computer images), and 13 December 2012 (the still photos), respectively. During the proceedings the Crown elected not to present evidence relating to the two Controlled Drugs and Substances Act charges that Mr. Butters was arraigned on and he is therefore found not guilty on those charges.
[2] As often happens, Mr. Butters' difficulties arose after he took his computer tower containing child pornography to a computer repair shop. He did this on 30 November 2012. The computer tower had two partitions, one driven by Windows software and the other by Linux software. Mr. Butters was having two problems with the machine. His remote mouse was not working properly with the password protected Linux system, and the Windows system appeared to be virus infected.
[3] The child pornography was discovered by Eric Wessman, the Linux technician, on 1 December 2012 when he was preparing to back up the personal files on the Linux partition before wiping it and reinstalling the software. To get a sense of the size of the data requiring copying to create a "back up" Mr. Wessman opened the folders. When he opened the picture folder he noticed approximately 30 Linux icons containing what appeared to be child pornography. He testified that Linux icons are characteristically larger than typical icons, and are large enough to permit individuals to recognize persons depicted. The pictures were of prepubescent girls estimated by Mr. Wessman to be about 12 years of age in various states of undress, including a full-length photo of a young girl in a bikini top with no bottom. Mr. Wessman opened the icon just described to full-screen and then advised Ethienne Ocampo-Larocque (herein Mr. Ocampo), one of the store co-owners of what he had found. Mr. Ocampo directed Mr. Wessman to turn the computer off. The tower was taken to the basement and left there for three days while Mr. Ocampo struggled with what to do. He was worried about his responsibility and the reputation of his business should he breach Mr. Butters' privacy by contacting the authorities.
[4] Finally, after consultation with his partner Mr. Ocampo called the police shortly after 3:00 p.m. on 4 December 2012. Patrol officer, Cst. Stephane Ethier, was advised of the call at 3:09 p.m. At 5:34 p.m. he arrived at Mooney's Bay Computer and met with Mr. Ocampo. Ultimately, Cst. Ethier was taken to the computer tower and he asked Mr. Ocampo to turn it on and show him what was found on the computer. Mr. Ocampo did so, entering the Linux password, and navigating to the picture folder before showing Cst. Ethier the pictures, including clicking on a couple of icons. Cst. Ethier described the images he saw as young females between 6 and 7 years of age, most of them fully nude. He found the images disturbing and was certain they were child pornography based on his training. He told Mr. Ocampo to unplug the computer and Cst. Ethier seized it, taking it to the Leitrim Road detachment.
[5] The computer tower made its way to the Ottawa Police secure storage facility at 799 Swansea Ave. The tower sat there until 7 December 2013 when Mr. Ocampo, concerned about his responsibility for the computer, contacted the Ottawa Police Service. He was put in touch with Det. Tami Casselman of the Internet Child Exploitation Unit ("ICE Unit"). Now alerted to the investigation, she and Det. Nathalie Marie Fortin visited Mooney's Bay Computer and obtained statements from Mr. Wessman and Mr. Ocampo. Det. Fortin, on temporary assignment to the ICE Unit, took responsibility for drafting two search warrants, one for the search of "The contents of Black Del Intel Dual 2 Computer Tower – Serial #T6022338 – for images of Child Pornography" being held at the Swansea Evidence Control Facility (the "Swansea Warrant"), and one for Mr. Butters' residence (the "Residence Warrant").
[6] The Swansea Warrant, which authorized the search and seizure of the contents of the computer tower, was valid between 9:00 a.m. and 6:00 p.m. on 10 December 2012. It was executed that day when the computer tower was delivered to Det. Andrew Thompson, an expert computer examiner, shortly after 11:00 a.m. Upon receiving it Det. Thompson did a quick review of the contents of the Linux hard drive and found child pornographic images. He notified Det. Fortin who came and viewed the images. She gave graphic testimony of four images that she observed and described in her police notes, all of which are clearly child pornography.
[7] Shortly after noon, Det. Thompson began the forensic acquisition of the contents of the hard drive, a process that involved making a true copy of the hard drive. Once the process is initiated, it is done automatically. Given the size of the hard drive being copied, Det. Thompson estimated that it would take 4 to 5 hours to complete, although "it could go slower or faster depending on variables." The next day when Det. Thompson returned to work he noted at 7:15 a.m. that the hard drive acquisition had been completed. The subsequent examination of the acquired files by Det. Fortin identified 203 child pornography images of which 194 were unique. Mr. Granger, for Mr. Butters, concedes that some but not all of those images are indeed child pornography.
[8] The Residence Warrant was executed on 13 December 2012, and led ultimately to the seizure of the 30 child pornographic still photos that form the subject of Count 2. A lap top and a number of storage devices were received and examined but no elicit material was found.
II. The Search and Seizure Challenges
[9] Mr. Granger has launched several challenges relating to the search and seizure of Mr. Butters' computer and of Mr. Butters' residence. He contends that:
[a] The warrantless search by Cst. Ethier at Mooney's Bay Computer store was an unreasonable search as:
[i] He lacked reasonable and probable grounds for the search; and
[ii] He lacked legal authority to search the computer without prior judicial authorization; and
[b] The warrantless seizure by Cst. Ethier at Mooney's Bay Computer store was an unreasonable seizure as:
[i] The seizure depended for its legality on the warrantless search being legal, which it was not;
[ii] When he seized the computer Cst. Ethier still did not have reasonable grounds to believe that it contained child pornography, and
[iii] There were no exigent circumstances rendering the seizure lawful, and, in any event, this doctrine was not relied upon by Cst. Ethier.
[c] The search pursuant to the warrant of Mr. Butters' computer was unreasonable because:
[i] The warrant depends for its legality on the fruits of the illegal searches recounted above; and
[ii] The search of the contents of the computer tower was not completed within the period designated in the warrant.
[d] The Residence Warrant depends for its legality on the fruits of the illegal searches recounted above and is therefore invalid; and
[e] The investigators collectively failed to secure a valid detention order relating to the warrantless seizure of the computer.
A. Preliminary Issues
[10] I have no doubt that Mr. Butters had a reasonable expectation of privacy in the computer and, of course, in his residence. The parties agree, but entered into extensive debate over the extent of Mr. Butters' expectation of privacy in the computer given that he had provided both the computer and the password to Mooney's Bay Computer, thereby relinquishing extensive control over the machine. In R. v. Buhay 2003 SCC 30, the Court recognized that even a "low expectation" of privacy is adequate to trigger a Charter claim, so long as it is reasonable. The intensity of a reasonable expectation of privacy is relevant only to remedy: R. v. Cole 2012 SCC 53. Mr. Butters is therefore entitled to raise the Charter issues he has advanced.
[11] By way of further preliminary, although Mr. Butters contends that he did not authorize the staff of Mooney's Bay Computer to open the password protected files on the Linux partition he accepts that the discovery of what proved to be child pornography by Mr. Wessman was not a Charter breach. The Charter, of course, governs the actions of state agents and the conduct of purely private actors, even if it is otherwise an unreasonable search, does not ground a Charter claim.
B. The Search of the Contents of the Computer at Mooney's Bay Computer
[12] Mr. Granger, for Mr. Butters, contends that the Charter was violated when Cst. Ethier viewed the contents of the computer while at Mooney's Bay Computer. Without question, when Cst. Ethier asked Mr. Ocampo to turn the computer on and show him the photos, Cst. Ethier was engaging in a search, even though Mr. Ocampo manipulated the controls. The actions of a private actor will be those of a state agent where the conduct at issue would not have occurred in the form and manner it did, but for the intervention of the state agent: R. v. Broyles; R. v. M.(M.R.). Mr. Ocampo opened the files because Cst. Ethier asked him to do so. Mr. Ocampo was therefore acting as a state agent, assisting Cst. Ethier in his examination of the contents. Since this search was conducted without a warrant, the onus is on the Crown to establish that the search was lawful and therefore reasonable. To avoid a breach finding, the Crown must overcome Mr. Butters' application objections that:
[i] Cst. Ethier lacked reasonable and probable grounds for the search; and
[ii] Cst. Ethier lacked legal authority to search the computer without prior judicial authorization.
[13] The "reasonable and probable grounds" or "credibly-based probability" concept relied upon by Mr. Butters to ground the first constitutional objection requires that the subject [in this case Cst Ethier] must believe (the "subjective component"), and that it must be reasonable for the subject to believe (the "objective component"), that (1) the information being considered demonstrates the probability as opposed to the mere suspicion that the relevant facts could be true (the "sufficiency inquiry"), and (2) that the information must be credible enough to support the reasonable probability that the relevant facts exist (the "credibility inquiry"): Hunter v. Southam Inc; R. v. Debot (1989); R. v. Storrey [1990] 1 S.C.R. 241; R. v. Bush [2010] O.J. No. 3452. In his argument Mr. Granger, on Mr. Butters' behalf, challenges both the subjective and objective component of this standard. I will begin with the objective component of the test.
[14] Mr. Granger began his challenge by questioning the accuracy of Cst. Ethier's evidence about the information he had. In spite of this, I do accept Cst. Ethier's account as follows: At 3:09 p.m. Cst. Ethier was assigned to attend the Mooney's Bay Computer store and was advised that the complaint was from Mr. Ocampo that Mr. Wessman had found child pornography on one of their client's computers. [1] Cst. Ethier contacted a sergeant for investigative direction and was told to seize the computer if it had child pornography on it. [2] Cst. Ethier arrived at the store at 5:35 p.m. Mr. Ocampo told Cst. Ethier that Mr. Wessman, while working on the computer in the upstairs of the store, found the pictures while checking the amount of data on the computer and that Mr. Wessman was the only person who saw the pictures of young females who were nude. More specifically, Mr. Ocampo reported that Mr. Wessman said he saw about 30 pictures he called kiddie porn. Mr. Wessman brought the computer downstairs because other customers could potentially see the images where Mr. Wessman was working. [3] After Mr. Ocampo related this information, an unsuccessful effort was made to contact Mr. Wessman "because Wessman was not there and was the only one who saw the pictures." [4] When Mr. Wessman could not be reached, Cst. Ethier asked Mr. Ocampo to turn the computer on.
[15] Mr. Granger argues for Mr. Butters that even if I accept this information, as I do, it raises only a reasonable suspicion, not reasonable grounds. He focuses primarily on the obligation of the officer conducting a search or seizure to have reasonable grounds to believe that an offence has been committed. The definition of child pornography in section 163.1(a) applicable to photos does not catch all nude photographs of children. It requires that the picture show a child "engaged in or depicted as engaged in explicit sexual activity" or "the dominant characteristic … is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years." Mr. Granger's submission is that bald assertions of someone's undefined opinion that a computer has "child pornography" or "kiddie porn" is not discriminating enough to support a reasonable probability that the content meets the legal definition of child pornography. Nor is a reference to nude young females sufficient given that not all nude images of children are child pornographic. He submits that reasonable and probable grounds must be based on more precise information disclosing a probable basis for concluding that the nude photos have the characteristics that make them pornographic.
[16] This is a well-crafted argument but I do not accept it. What the definition in section 163.1 does is describe sexualized photographs – those that involve sexual conduct and those that depict the sexualized parts of the child's anatomy in a sexualized fashion. Section 163.1 is crafted in legal language, but it means no more than that. While not everyone will understand this, it is probable that when a lay person honestly describes an image they have seen as child pornography or "kiddie porn" the image in fact contains the kind of sexualized photograph caught by section 163.1. Put more simply, it is probable that a lay person claiming that an image is child pornography will be able to distinguish between sexualized images and innocent images. Moreover, in this case, the information was that about 30 child pornographic pictures were observed. It is unlikely that someone would collect 30 innocent photos of naked young children. Finally, the business interest a computer shop has in not reporting child pornography found on client computers supports the reasonable inference that if a report is going to be made it is not going to be based on marginal photographs. I am therefore satisfied that the information communicated to Cst. Ethier was sufficient to permit a reasonable person to infer that there is a probability that the computer contained child pornography. The objective "sufficiency inquiry" standard is met.
[17] So, too, is the objective "credibility inquiry." As indicated, this complaint came from a computer repair shop whose workers would not lightly complain that a client computer contains child pornography, given their business interest in keeping the customer happy. The information therefore has a stamp of credibility even though it is second-hand hearsay; it is second-hand hearsay communicated in the course of business between individuals who have an interest is in not reporting against clients.
[18] I am therefore persuaded that there was an objective credibly-based probability at the time Cst. Ethier searched the computer that it contained child pornography.
[19] As indicated, there is more to reasonable and probable grounds standard than the objective component. The subject officer must also subjectively believe that he has reasonable and probable grounds. Although R. v. Caslake did not involve a reasonable and probable grounds standard it did involve a similar two-part subjective/objective standard applicable to searches incident to arrest. The Supreme Court of Canada made clear that even if objectively an officer has the requisite grounds, subjectively they must believe they have the relevant legal authority that confers the police power being employed. Justice Lamer, at para.21, explained that the subjective component of the standard is essential to ensure that officers act only when they believe that they have the lawful authority that is being exercised. It is a way of ensuring that officers confine themselves to lawful power. In the absence of that subjective belief, the exercise of the power is unlawful, and searches that are unlawful are unreasonable and contrary to the Charter.
[20] In this case I am not persuaded that Cst. Ethier subjectively believed he had reasonable and probable grounds when he viewed the images. I recognize that during his cross-examination he insisted he did, but this was only after it was made clear that his authority to view the computer was being challenged. Specifically, when it was suggested to him that the reason he tried to get hold of Mr. Wessman was because he did not have reasonable and probable grounds based on what Mr. Ocampo had relayed Cst. Ethier responded, "No I just wanted to hear it from him. It is always better to hear it from the person who saw it. Maybe he could have been more specific… I believed I had grounds to look at what was on the computer." When it was not apparent he was being challenged, however, Cst. Ethier's answers suggest that Cst. Ethier believed he had to look at the computer himself in order to acquire reasonable and probable grounds. Specifically, when explaining why he asked Mr. Ocampo to turn the computer on after Mr. Wessman could not be reached, Cst. Ethier said he did so "to make sure [he] could seize the computer." And when the Crown asked him where he got the grounds to seize the computer Cst. Ethier answered that he got the grounds "from the information I got from Mr. Ocampo and what I observed. That was enough for me to have reasonable and probable grounds to seize it." If Cst. Ethier did not believe he had reasonable and probable grounds to seize the computer until he observed the contents, then he did not believe he had reasonable and probable grounds before he observed the contents. Any doubt about his insecurity over the state of his grounds is removed by a response he gave at the end of the cross-examination relating to his state of belief. He said that even if Mr. Wessman had described to him what he had seen, "I still wanted to see with my own eyes before I take a person's word for it."
[21] I cannot, on this record, find the Crown to have established that Cst. Ethier subjectively believed he had reasonable and probable grounds to search the computer at Mooney's Bay Computer store when he viewed the images. The fact that Cst. Ethier went ahead and searched the computer is not proof that he believed at the time he had such grounds. His evidence shows that he proceeded to search the computer without even knowing what the legal standard for doing so requires. When he was challenged with the suggestion that he would always turn a computer on if he had information it had child pornography on it before seizing it he said "Yes that is what I would do unless told by a boss or something otherwise. That is what I would do."
[22] In all of the circumstances I find that the Crown has not established that Cst. Ethier had reasonable and probable grounds to search the computer, a legal pre-requisite to a valid exigent circumstances search. I therefore find that the search of the computer at Mooney's Bay Computer was undertaken in contravention of section 8 of the Charter.
[23] I also find that, altogether apart from the reasonable and probable ground breach Cst. Ethier did not have lawful authority to cause Mr. Ocampo to open the computer files. It is trite law that there is a prima facie warrant requirement for all searches. Only exceptionally does the law provide for warrantless searches and seizures.
[24] The Crown relied upon the exigent circumstances doctrine codified in s.487.11 of the Criminal Code of Canada to ground Cst. Ethier's authority. I am of the view, notwithstanding Mr. Granger's able arguments to the contrary for reasons I will explain below, that once a police officer has reasonable and probable grounds to believe that a computer left at a repair shop contains child pornography, s.487.11 authorizes that the computer be secured through seizure. This does not, however, assist the Crown because Cst. Ethier did not simply seize a computer containing child pornography from a repair shop. He searched it. Either he searched it in order to acquire reasonable and probable grounds, in which case s.487.11 was not yet available to him, or he searched the contents of the computer when he could have remedied the exigent circumstances by seizing it without looking at its contents. Either way, s.487.11 provides no authority to an officer to direct a search of a computer at a computer shop.
[25] To put the distinction between seizing a computer and searching a computer into perspective, it is important to appreciate that the Supreme Court of Canada has drawn a clear line between seizing computers and searching computers. It has insisted that authority to seize a computerized device must also obtain specific authorization before the seized computer can be searched: R. v. Vu 2013 SCC 60. This is because the intense expectation of privacy in a computer does not relate to the physical control of the chassis. It relates to the contents of the computer, the "biographical core of personal information." A seizure may deprive the owner of dominion over the item but it is the search that entails exposure of private information. In my view had Cst. Ethier recognized that he had reasonable and probable grounds while at the store, he could have taken Mr. Butters computer and then secured a search warrant. He had no authority, however, to search it without warrant.
[26] The fact that the search at the store was targeted to particular suspect files does not change this. An individual can have a reasonable expectation of privacy related to contraband; R. v. M.(A.) 2008 SCC 19. In any event, it will almost invariably be the case that even targeted searches present the risk of exposing private information that is legitimately held. There is no evidence in this case, for example, that all of the photographs in the opened file were child pornography. Cst. Ethier had no lawful authority to search the computer.
[27] The cases the Crown has relied upon do not hold otherwise. In R. v. Winchester [2010] O.J. No. 281 (Ont.S.C.J.) the officer did not ask his brother, the technician, to turn on the computer before describing the images. His brother initiated the report and opened the computer of his own initiative. This was not, therefore, a search by a state agent. This was important to the Court's reasoning. In R. v. Barwell [2013] O.J. No. 3743 (C.J.) the constitutional validity of the preview at the store issue was not litigated as the sole complaint was the seizure of the computer. In any event, Cst. O'Connor's previewing of the images in that case occurred when the officer was shown the images by the computer technician at the technician's initiative, upon his arrival. This was a plain view search that would not have contravened the Charter. And in R. v. Villoraman [2012] A.J. No. 1427 (Q.B.) the circumstances in which the officer viewed the files is not clear, nor was it the apparent subject of a Charter challenge. As indicated, in this case, Cst. Ethier directed the examination of the images when he had no lawful authority to do so thereby committing a Charter violation.
[28] In sum, the search of the computer images under the direction of Cst. Ethier that took place at Mooney's Bay Computer store was undertaken in violation of section 8 of the Charter because (1) Cst. Ethier did not have reasonable and probable grounds for a valid exigent circumstances search to be conducted, and (2), even if there had been reasonable and probable grounds it was not necessary to search the computer to address the exigent circumstances that existed. The computer tower should have been seized and a search warrant secured before it was examined.
C. The Seizure of the Computer Tower from Mooney's Bay Computer
[29] Mr. Butters challenges the seizure of the computer from Mooney's Bay Computer on three grounds. The first two are raised expressly and directly. The third is raised implicitly but requires attention. Specifically:
[b] The seizure of the computer tower was unreasonable because:
[i] The seizure depended for its legality on the warrantless search being legal, which it was not;
[ii] When he seized the computer Cst. Ethier still did not have reasonable grounds to believe that it contained child pornography; and
[iii] There were no exigent circumstances rendering the seizure lawful, and, in any event, this doctrine was not relied upon by Cst. Ethier.
[30] The first ground offered by Mr. Butters in challenging the constitutional validity of the seizure – that it has been tainted by the unconstitutional search – cannot be overcome. It has not been established that without his unconstitutional preview of the images Cst. Ethier would have had the subjective belief necessary to permit the computer tower to be seized. Indeed, based on my findings and Cst. Ethier's own evidence, he predicated his subjective belief that he had reasonable grounds to seize the computer in part on the unconstitutional search he undertook when he directed Mr. Ocampo to turn the computer on so that he could see the images. The seizure of the tower is therefore the fruit of the earlier illegal search rendering the seizure itself unconstitutional.
[31] The challenge that Cst. Ethier did not have reasonable and probable grounds to believe that the computer contained child pornography can, however, be readily dismissed. I have already ruled that there were objectively reasonable grounds to seize the computer while Cst. Ethier was at the store, even before he viewed it. Nothing in the viewing undid that. Indeed, I accept his testimony that by previewing the computer images, Cst. Ethier satisfied himself that the computer had child pornography on it. He clearly subjectively believed that an offence had been committed and that the computer contained evidence of that crime, at the time he was seizing it.
[32] Mr. Granger argued in the context of his challenge to the search of the computer at the Mooney's Bay Computer store that the search was illegal because there were no exigent circumstances, and, in any event, Cst. Ethier did not rely on this doctrine. Those challenges, if accurate, would undermine the seizure as well as the search and I am therefore going to entertain them as challenges to the seizure itself.
[33] I have already explained why I did not find the Crown's reliance upon the exigent circumstances exception to be persuasive with respect to the search. There are decisions, however, that support the application of this doctrine to empower computers to be seized from repair shops without warrant, including R. v. Winchester, supra; R. v. Villaroman, supra, and my decision in R. v. Barwell, supra, where I suggested that a police officer discovering child pornography on a computer at a repair shop has a duty to seize that contraband, not leave it in the possession of the repair shop. These decisions find that a seizure of the contraband is urgent to terminate immediately possession by the repair shop, and to avoid the risk that the evidence – the contraband – will be lost or destroyed by the owner reclaiming his goods or by misadventure at the repair shop. Mr. Granger, for Mr. Butters, relies upon R. v. Buhay 2003 SCC 30 to argue that this doctrine does not apply. In that case the Court held there were no exigent circumstances enabling the officers to direct that a bus locker they had reasonable grounds to believe contained marijuana be opened so they could seize the marijuana.
[34] In my view R. v. Buhay is distinguishable. As described, the contraband in that case was marijuana secured in a bus locker. Mr. Buhay, having rented that locker, had a privacy interest not only over the contraband but over the physical space that had to be violated to access the marijuana. Moreover, the material privacy interest at play was in the contents of that bus locker. It was not possible for the police to open the locker to affect a seizure without breaching that privacy interest and seeing what Mr. Buhay had in the locker. The Court therefore expected the officers to secure the locker, if necessary, and get a warrant before searching it by opening it and then seizing it.
[35] In my view, a computer sitting on a work table at a computer repair shop is different. While the contraband in this case was password protected, this is not always so. Unlike marijuana in a locker, the contraband in a computer sitting on a work table can be readily accessible to those who are in the work area. Although it is not a factor here where the password operated much like the key in Buhay, in many cases the contraband will not be secured, increasing the urgency of assuming control. More importantly, when a computer is on a table in a repair shop, the owner does not have any privacy interest over the physical location that needs to be accessed to get at the computer. Finally, and of most importance the material privacy interest with respect to a computer is not in the physical tower. It rests in the information stored in the computer. Whereas the police could not seize Mr. Buhay's marijuana without invading his privacy interest in the contents of the locker, it is entirely possible for an officer to seize a computer without violating the privacy interest in its contents, and with the full intention to secure a warrant before reviewing those contents.
[36] I appreciate that only the first of these three points addresses the intensity of the risk presented by delaying the seizure. In my view, however, the nature of the privacy interests at stake can and should impact on the intensity of the exigency required to trigger the exigent circumstances exception. If the police can ameliorate the risks of further criminality inherent in leaving possession of child pornography with a repair shop and the risks presented to the loss or destruction of evidence by taking physical control over a computer tower without putting the material privacy interest at risk by delaying inspection until a warrant is obtained, the law should and in my view does accommodate it. Yes, the same can be accomplished by assigning an officer to guard the location while the warrant is being secured to see whether the apprehended risks actually arise, but given the modest intrusion of protected privacy interests that taking physical control over a computer pending a warrant to search the contents entails, it is not reasonable to require this of the police. Where there are reasonable and probable grounds to believe that a computer at a repair shop contains child pornography the authorities can, in my view, seize it under the exigent circumstances exception and then apply for a warrant.
[37] There are, however, two problems in this case with how this was done. First, where a computer is seized on the basis of an urgency exception, the police should act with dispatch in securing the warrant. This was not done here. Members of the "ICE" Unit responsible for investigating child pornography were not even alerted to the December 4, 2012 seizure of the computer until 3 days later, December 7, 2012 when Mr. Ocampo, concerned about his responsibility over Mr. Butters' computer, phoned the police. The warrant was not secured until December 10, 2012, six days after the seizure.
[38] Second, and of greater significance, I agree with Mr. Granger that this particular seizure was not in fact undertaken as an exigent circumstances seizure. It is clear on the evidence before me that Cst. Ethier did not know where his lawful power to seize the computer came from. When asked in chief why he would be expected to turn the computer off and seize it without a warrant if it contained child pornography Cst. Ethier said he was not sure. When asked in cross-examination whether he needed anything more than reasonable and probable grounds to seize the computer tower he responded "not that I can remember no." Nor did Cst. Ethier seize the computer because he realized there were exigent circumstances impelling him to do so. He seized it because he was told by an unnamed sergeant to do so if it contained child pornography. For his part Cst. Ethier never mentioned the need to take the computer tower urgently nor did Cst. Either act as if there was any urgency in doing so. He took more than two hours after receiving a report that there was child pornography at the computer store before arriving there.
[39] In my view, it would be contrary to the principle in Caslake, supra, to find a search or seizure to be legal where the officer deciding to conduct the search or seizure has not even turned their mind to whether the factual components that would make the search or seizure legal are present. The public interest in ensuring that officers act solely where they purport to be exercising lawful authority would be defeated if the law imposed after-the-fact imprimatur on police conduct for reasons not considered by the officer. I appreciate that Cst. Ethier was following directions, and that an officer who does so will be acting lawfully if the directing officer had a lawful basis for the search or seizure (R. v. Debot, supra) but there is no evidence before me that the directing officer gave the instructions he or she did because of exigent circumstances concerns.
[40] In sum, the seizure of the computer tower from Mooney's Bay Computer was contrary to the Charter because Cst. Ethier's subjective reasonable and probable grounds to seize that computer tower depended upon Cst. Ethier's earlier unconstitutional search of the contents of the computer tower, and because the warrantless seizure was not shown to have been conducted under the legal exception that was available.
D. The Search of the Contents of the Computer Pursuant to the "Swansea Warrant"
[41] Once again, there are two challenges made to this search, (1) that when the fruits of the illegal search conducted at the Mooney`s Bay Computer store are excised, there are not reasonable and probable grounds to support the warrant, and (2) that the search that was conducted by Det. Thompson, extended beyond the period authorized by the search warrant.
[42] In my view there were reasonable and probable grounds to support the warrant. I make this finding even though I agree with Mr. Granger that the three sentences commencing with the third sentence of the first paragraph under the heading Grounds to Believe an Offence Has Been Committed must be excised from the warrant. These passages recount the fruits of the unlawful search of the computer by Cst. Ethier. I also agree with Mr. Granger that any reference to Cst. Ethier's information in the last paragraph in that section should be excised. Det. Fortin is not able to express reliance on Cst. Ethier's unconstitutional search in support of the warrant. None of the other passages in the warrant identified by Mr. Granger depend upon unconstitutionally obtained information.
[43] Even with these excisions, I am satisfied that there are ample grounds upon which a reasonable justice could have issued the Swansea warrant. I am of the view that the report that Mr. Wessman was repairing a computer Mr. Butters had left at the store and found 20-30 large thumbnail photographs, including a picture of a pre-pubescent female posing in a bikini and another of a young girl with a bikini top and no bottom with her genitalia exposed, provides reasonable and probable grounds to believe that a possession of child pornography offence has occurred and that there would be evidence to be found by searching the contents of the computer. An issuing justice could also find this information to be sufficiently reliable to act on given that the allegation that Mr. Butters lodged the computer with the store was confirmed by the examination by the Informant of a work order, and that the report of the discovery was made by Mr. Ocampo only after lengthy consideration, worried about one of his customers being in possession of child pornography. While the Informant, Det. Fortin, does not expressly recount her belief in the credibility and reliability of the civilian witnesses she does assert her belief that Mr. Butters is the owner of the computer and that the computer contains images of child pornography, as the civilian witnesses allege. I am therefore rejecting the sufficiency challenge to the warrant information.
[44] I am also rejecting the Charter challenge to the manner in which the search pursuant to the warrant was conducted. Specifically, I am rejecting the challenge that the forensic acquisition of the contents of the computer was not acquired within the period authorized by the warrant.
[45] First, as I have found this search was conducted pursuant to a valid warrant. The onus is therefore on the Charter claimant, Mr. Butters, to prove that this "timing breach" occurred. On the evidence this cannot be done. The forensic acquisition started shortly after 12:00 p.m. The evidence before me is that the acquisition would take between 4 to 5 hours to complete, although "it could go slower or faster depending on variables." On this record I cannot find that the search of the contents of the computer exceeded the 6:00 p.m. search limit imposed by the warrant. The most that can be said is that it may have. The alleged breach has therefore not been established by the Applicant on the balance of probabilities.
[46] Second, where a search is authorized by a warrant it is crucial that it be commenced within the warrant period. It is not crucial that it be completed within the warrant period, so long as the officers are still conducting the search authorized by the warrant without unreasonable delay. In R. v. Woodall [1993] O.J. No. 4001 (Ont.C.A.) officers remained in the premises to be searched, continuing the authorized search, after the period expired. This was not a violation. The law is sensible. It is not going to convert a legal search into an illegal search because officers do not drop everything the second the warrant expires, leaving their authorized task incomplete. Similarly it is not going to convert the legal forensic acquisition of a computer's contents into an illegal search because a continuing mechanical process takes longer than the outside period identified in the warrant.
[47] Finally I have considered whether the search was rendered illegal, despite the validity of the warrant, because possession of the computer tower that was searched was obtained pursuant to an illegal seizure, and because Appendix "A" of the Information to Obtain did not request expressly, authority to seize the computer tower. It asked only for a "Warrant to Search" "1) The contents of Black Intel Dual 2 Computer Tower – Serial #T6022338 – for images or video of Child Pornography" (emphasis added). This issue was raised by Mr. Granger in argument. I am of the view, however, that by requesting a search of the computer, it is implicit that the Informant would be asserting possession over the computer to accommodate that search. It was therefore appropriate, in my view, for a standard form warrant to be issued, authorizing both the search and seizure of the property described in Appendix A from the Swansea Crescent address. During the forensic search, the Computer Tower was therefore lawfully and constitutionally held.
E. The Search and Seizure Pursuant to the "Residence Warrant"
[48] The challenge to the residence warrant is denied. Even after appropriate excisions are made removing the references to Cst. Ethier's unconstitutional search, there are grounds upon which a reasonable justice could issue the warrant. This includes the information contained in the Swansea warrant, recounted above, as well as the observations made pursuant to the lawful search undertaken pursuant to the Swansea warrant.
F. The Failure to File a Report to a Justice
[49] The final Charter complaint relates to the failure of the police to file a valid Report to a Justice and secure an Order for Detention relating to the warrantless seizure of the computer by Cst. Ethier at Mooney's Bay Computer. There are also collateral complaints made about the Reports and Orders for Detention secured with respect to the warranted searches.
[50] The material facts are as follows. The warrantless seizure of the computer tower by Cst. Ethier occurred on December 4, 2012. On December10, 2012 a search warrant was secured and executed, relating to the forensic search of the computer tower and the search of Mr. Butters home. On December 17, 2012 Cst. Fortin submitted a Report to a Justice for each of the two warranted searches (Exhibits 6 and 7). She accomplished this in seven days, even though she testified that she thought she had 30 days to do so. The return relating to the Swansea warrant (Exhibit 7) reported that she had seized the Computer Tower from 2799 Swansea Crescent, Ottawa. On December 19, 2012 two indistinguishable orders for Detention were issued by a Justice of the Peace, relating to unidentified applications brought by Cst. Fortin (one attached to each of Exhibits 6 and 7). Cst. Fortin had not received nor confirmed the existence of these orders until preparing for her evidence in this case. Det. Fortin issued a second Report to a Justice on March 27, 2013 after being requested to do so in circumstances she was unsure of. An Order for Detention dated 5 April 2012, an apparent response to this March request, was posted to the electronic file at the Ottawa Police Service and retrieved by Det. Fortin in anticipation of her testimony (Exhibit 8). The order provides no specificity as to the items or the investigation.
[51] I will deal first with Cst. Ethier's failure to file, which is the primary complaint of Mr. Granger's. Section 489.1 does require a Report to a Justice to be made by a peace officer who has seized anything, whether pursuant to a search warrant or not, "in the execution of his duties": R. v. Backhouse. Cst. Ethier or someone on his behalf was therefore legally obliged to file a report "as soon as practicable" relating to the warrantless search of the computer tower. Cst. Ethier assumed that this would be done by the detectives who were going to take control over the investigation, but this did not happen. Mr. Granger, for Mr. Butters, contends that this failure is a Charter violation.
[52] In R. v. Backhouse, supra at para.115 Justice Rosenberg expressly left the question open as to whether a failure to comply with the detention provisions of the Criminal Code of Canada would render the seizure unconstitutional. He referenced Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C.(3d) 449 at 543-547 (Ont.C.A.), ( Re Church of Scientology ) where obiter comments were made suggesting that the detention provisions are not an extension of the initial judicial process authorizing the search.
[53] Re Church of Scientology dealt with a finding by a motions court judge, whose jurisdiction involved the determination of the validity of a search warrant, that a mandatory retention provision of the Criminal Code of Canada he misinterpreted as discretionary was unconstitutional because it did not provide notice and an opportunity to be heard. The decision was overturned on all of those bases – jurisdiction, error of interpretation, and finding the retention provisions of the statute to be unconstitutional on the basis of the absence of notice or right to be heard. In further obiter comments the Court did favourably cite Jim Pattison Industries Ltd. v. The Queen where it was held that section 8 does not promise security against unreasonable retention and possession of things seized. This aspect of the decision is not binding on me, nor do I agree with it.
[54] Given the natural meaning of the term "seizure" this narrow reading is difficult to understand. The Shorter Oxford English Dictionary (2nd ed., 1932) describes the ordinary meaning of the term "seizure" as "the action or an act of seizing or the fact of being seized ; confiscation or the forcible taking possession (of land or goods)…" (emphasis added) The Oxford Modern English Dictionary (2nd ed., 1996) and the Canadian Oxford Dictionary (2nd ed., 2004) continue the theme, both defining a seizure as "the act or an instance of seizing; the state of being seized ." (emphasis added). Simply put, a seizure is an ongoing state of affairs so long as the seizing party continues to deprive someone of control over something. Not only does the ordinary interpretation of section 8 therefore suggest that it should be interpreted to embrace the retention of seized goods, the kind of purposive interpretation favoured in Charter interpretation also supports this approach. In R. v. Guiller [1985] O.J. No. 2442 (Ont. Dist. Ct.) Justice Borins explained that a return to a Justice is intended to ensure that items seized remain under the control of the judicial process. It cannot be forgotten that retention is often ordered to enable ongoing investigation relating to seized items, investigating that can constitute an ongoing search (s. 490(1) of the Criminal Code of Canada). In R. v. Garcia-Machado 2014 ONCJ 81, for example, the blood that was seized was analyzed while the blood was being retained, and the private records seized were transmitted on request to the Centre for Forensic Sciences, some of them inappropriately, while those records were being retained. This was all done without an order in place authorizing retention of the seized items for further investigation. In my view it is not in keeping with the section 8's purpose of protecting reasonable expectations of privacy to hold that those interests are protected only until physical control is assumed. Nor does the statutory remedy of an order for return change this. An ordinary statute cannot remove Charter jurisdiction, but in any event, this remedy offers relief only against unnecessary over-holding. The statutory remedy does nothing to address misuse of the items seized during ongoing detention, or to keep the seizure of goods under the control of courts.
[55] There are, of course, relatively recent decisions such as R. v. Persaud [2008] O.J. No. 5077 (S.C.J.) and R. v. Vinneau 2010 NBPC 19 holding that section 8 does not apply to the detention of items seized. "The vast majority of Ontario cases … [however] suggest that a failure [to file a return] constitutes a breach of section 8." R. v. Garcia-Machado, supra, at para. 50. Indeed, the application of section 8 to wrongful retention was conceded by the Crown in both R. v. Kirubanathan [2011] O.J. No. 5766 (S.C.J.) and R. v. Poulin [2004] O.J. No. 1354 (S.C.J.). Unreasonable retention has been found to be covered by section 8 of the Charter in Alberta (see R. v. Villaroman 2012 ABQB 630) and even in British Columbia, in spite of the fact that in R. v. Arason (1992) the British Columbia Court of Appeal once held in the wiretap context that a failure to file a Form 5.2 report is more a matter of administration than a matter relating to the validity of the search, recent decisions have been finding that the failure to file a report is a breach of section 8: See R. v Carpio [2013] B.C.J. No. 2437 (Prov. Ct). In my view, decisions permitting Charter challenges to unreasonable retention of seized goods are in keeping with the language and purpose of section 8. If the continuation of a seizure is not lawful, the seizure becomes unreasonable contrary to section 8 of the Charter.
[56] In this case, contrary to section 489.1, Cst. Ethier entirely failed to report the warrantless search to a justice. That failure is not cured by the Reports to a Justice that were filed on December 17, 2012 by Det. Fortin. This is because the relevant report, Exhibit 7, does not disclose that the warrantless search occurred. While it does report that the computer tower was seized, it reports that it was seized pursuant to the December 10, 2013 search warrant. Moreover, while the place of seizure was identified as 2799 Swansea Crescent this location is not identified in the Report to a Justice as the secure police lockup. Not even an inference from the information presented can therefore be taken as a Report to a Justice of the earlier warrantless search. The failure to file a Report to a Justice contrary to section 489.1 was unlawful, and constitutes a breach of Mr. Butters' section 8 rights. Having said this, within 13 days of the unlawful seizure, a Detention Order was issued authorizing the detention of the same computer that was seized without warrant, a factor I will return to when considering the appropriate remedy for this Charter violation.
[57] I find no breach of section 8 arising from the seven day delay on the part of Det. Fortin in filing the Reports to a Justice on December 17, 2012. The relevant provision requires the returns to be filed "as soon as practicable." I agree with the decision in R. v. Garcia-Machado, supra that this requires filing without unreasonable delay, which is what happened here. Det. Fortin explained her schedule and that she and her colleagues had to complete the analysis of the evidence seized before the reports could be completed. I make this finding even though Det. Fortin complied with the statutory provision in spite of misunderstanding her obligation. This inquiry is into a state of facts, not into the officer's intent, and these Reports were filed "as soon as practicable." Nor does it matter that she did not ensure that Detention Orders were issued. What matters is that Orders for Detention Orders were issued. While the adequacy of those Orders for Detention can be debated, this was not the subject of a Charter challenge before me.
G. Summary of the Breaches
[58] The search of the computer images under the direction of Cst. Ethier that took place at Mooney's Bay Computer store was undertaken in violation of section 8 of the Charter because (1) Cst. Ethier did not have reasonable and probable grounds for a valid exigent circumstances search to be conducted, and (2), even if there had been reasonable and probable grounds it was not necessary to search the computer to address the exigent circumstances that existed.
[59] The warrantless seizure of the computer tower at the Mooney's Bay Computer store was also contrary to section 8 because Cst. Ethier's subjective reasonable and probable grounds to seize that computer tower depended upon Cst. Ethier's earlier unconstitutional search of the contents of the computer tower, and because the warrantless seizure was not shown to have been conducted under the legal exception that was available, the exigent circumstances exception.
[60] The ongoing warrantless seizure of the computer tower after its seizure at the Mooney's Bay Computer store was retained, contrary to section 8, without a Report to a Justice ever having been filed.
III. Remedy
[61] By way of remedy Mr. Butters seeks the exclusion under section 24(2) of the Charter of all of the evidence found following the violation of his rights. This would include police officer and police agent testimony and forensically retrieved information relating to the images found on the desktop computer, as well as the still photos seized from Mr. Butters' home.
[62] A section 24(2) exclusionary order can be made only if the target evidence was "obtained in a manner" that has infringed or denied Mr. Butter's Charter rights, and even then, only if, in all of the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
A. The "Obtained in a Manner" Inquiry
[63] In R. v. Wittwer 2008 SCC 33, the Court reaffirmed that a strict causal connection is not required for the "obtained in a manner" requirement to be met. A purposive and generous approach is to be taken. The evidence 'will be tainted if the breach and the impugned [evidence] can be said to be part of the same transaction or course of events." This can be identified causally, temporally and/or contextually.
[64] Applying this standard I am satisfied that all of the evidence sought to be excluded was obtained in a manner that infringed Mr. Butters' section 8 rights. There is a clear contextual connection in the sense that the manner in which this investigation proceeded was by utilizing the fruits of the unconstitutional search to help secure the warrants that led to the further investigation, including the forensic examination of the unconstitutionally seized computer and the search of the home. In effect, the unreasonable search and seizure of the computer was the domino that tipped obstacles to the investigative path that was followed.
[65] I have considered whether the obtainment of the search warrants for the computer tower and the home, which remain valid after the unconstitutionally obtained information is excised, makes the causal connection I have just described too remote to satisfy section 24(2). I am persuaded it does not. On the evidence before me had Cst. Ethier not conducted his unreasonable search he would likely have concluded that he did not have grounds to seize the computer, and had he not seized the computer, it is unlikely that search warrants that were obtained would have been obtained. I can have no confidence on the evidence before me that this matter would even have come to the attention of the ICE Unit given the apparent lack of communication. Moreover, even though the search warrants that were obtained could have been lawfully secured without the tainted information, the fact remains that the warrants were issued by a Justice based, in part, on that tainted information. In my view the relevant place to consider the impact of the subsequently obtained valid search warrants is at the second stage of inquiry, in deciding whether the admission of targeted evidence would bring the administration of justice into disrepute.
B. The "Disrepute" Inquiry
[66] Since the "obtained in a manner" requirement is met for all of the evidence, it is trite law that if I conclude after examining the 3 factors identified by the Supreme Court of Canada in R. v. Grant 2009 SCC 32 that the admission of this evidence in the proceedings would bring the administration of justice into disrepute I am required by law to exclude the evidence just described.
[67] R. v. Grant essentially requires that I consider whether (1) the breach is serious enough and (2) the impact on the Charter- protected interests of Mr. Butters is significant enough to (3) outweigh society's interest in the adjudication of the case on the merits. I am to ask given the balancing of those three factors whether a reasonable person fully informed of the all of the circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. When asking this question the concern is on the risk, given all the circumstances, of damaging the long-term repute of the administration of justice by condoning the Charter violation, or by sending the message that Charter rights are unimportant. This is not a mathematical exercise. I am to make a determination applying the correct principles of law and I must achieve a result that is reasonable.
1. The Seriousness of the Breach
[68] The seriousness of the breach is influenced primarily by the blameworthiness of the Charter infringing conduct. This is determined mainly by characterizing the state of mind of the officer or officers who breached the Charter, but also encompasses systemic or institutional failures in Charter compliance. Charter-infringing state conduct will be more serious where it is part of a larger pattern of Charter violations committed during the investigation.
[69] The Crown urges that the breaches committed by Cst. Ethier were not serious because Cst. Ethier acted in good faith. The Crown urges that he did not knowingly or deliberately disregard the warrant requirement, having relied upon the advice he received from a sergeant, and he expected the assigned detectives to file the Report to a Justice.
[70] I do recognize that Cst. Ethier did not deliberately flout the Charter. To be sure, he went out of his way to be fair. When he learned he would be attending to a child pornography call at a repair shop he sought guidance from a sergeant. Moreover, he undertook the illegal search because he did not want to undertake the significant step of seizing a computer without confirming with his own eyes what he had been told. His only attitudinal foible, and it is not insignificant, is that when memos are circulated about new legal developments he does not read all of the material furnished, just getting "the gist of it." While this admission on his part does weaken any claim that can be made to good faith on his behalf, what truly makes it inappropriate to treat these breaches as only minimally blameworthy given Cst. Ethier's good intentions is that the failures in this case were, in material part, institutional. A Charter breach is, by definition, a state failing. In evaluating the seriousness of that Charter breach the blameworthiness of the entire state apparatus involved in the impugned conduct has to be consulted. It is not appropriate to focus solely on the blissful ignorance of the immediate actor in order to disregard the failings in his training, the quality of the direction he has been given in the case, or the omissions of co-workers he was counting on. In this case the breaches were serious even if Cst. Ethier had good intentions. Whether because of institutional failings or his own lack of knowledge Cst. Ethier held no appreciable understanding of what his legal authority was. He laboured under the misconception that he could search to acquire reasonable and probable grounds, and seize without warrant on reasonable and probable grounds alone. These errors relate to the most basic limits on the powers of search and seizure. His actions were manifestly unreasonable.
[71] The failure of the Ottawa Police Service to file a Report to a Justice relating to the warrantless search is also unacceptable, even if it was reasonable for Cst. Ethier to expect the investigating detectives to take care of this. Somebody within the police department dropped the ball. The failure to file reports has been styled in other cases as a systemic problem that increases the seriousness of the breach: R. v. Garcia-Machado, supra at para. 60; R. v. Cunliffe [2006] O.J. No. 3580 (S.C.). I have no basis before me for making the particular finding that what happened with the Report in this case was a systemic failing in the sense that this is a frequent kind of breach, but what is apparent is that the Ottawa Police Service did not have adequate systems in place in this case to ensure that returns would be filed. The evidence before me is that the ICE Unit, responsible for investigating this case, did not even know about the seizure until Mr. Ocampo called to inquire about what was happening. A computer that could only have been legally seized without warrant under exigent circumstances was held for three days before those responsible for the investigation even learned of it. And when they did, they learned of it from the inquiries of a civilian. How can it be possible to file a Report to a Justice "as soon as practicable" if a computer sits in a locker facility without those responsible for complying with the law even knowing it is there? And while it caused no prejudice, Cst. Fortin misunderstood her obligation as investigator to Report to a Justice as soon as practicable and made no effort to confirm that Orders for Detention were secured. In this context, given the systems failure that occurred, the failure to file the Report to a Justice constitutes a serious breach.
[72] Ultimately, I find the Charter breaches before me to be serious. There were a number of Charter missteps, including the belief that a search can be undertaken without reasonable and probable grounds or the failure to appreciate the importance of the subjective "credibility inquiry," the belief that a warrantless seizure can be made on mere reasonable and probable grounds, and the complete failure to comply with the statutory obligation to file a Report to a Justice. Each of these missteps was predicated on unacceptable ignorance or disregard by police officers about basic matters. All of this is coupled with the failure by the Ottawa Police Service to treat the warrantless seizure of the property of an individual as a matter of legal urgency.
2. The Impact on Mr. Butters' Charter Protected Interests
[73] What then of the "impact" of the breaches on Mr. Butters' Charter protected interests? In my view, the impact on Mr. Butters was modest.
[74] I begin by recognizing that for non-bodily physical evidence, the degree of intrusion is influenced primarily by the nature of the search or seizure that produces the evidence, and how compromising that search or seizure is to the privacy interests of the accused. Facially, the warrantless search and seizure of a computer is seriously intrusive. The Supreme Court of Canada has commented that "it is difficult to imagine a search more intrusive, extensive or invasive of one's privacy than the search or seizure of a personal computer": R. v. Morelli 2010 SCC 8, and see R. v. Cole 2012 SCC 53. The failure to file a Report to a Justice confirming the warrantless search, for its part, also represents a compromise on the ability of courts to maintain control over powers of seizure. The conduct of Cst. Ethier and the Ottawa Police Force therefore compromised intensely protected interests.
[75] It is important to appreciate, however, that the degree of intrusion in this case is lessened, notwithstanding the significant, imposing privacy interest individuals tend to have in their computers. Where a computer is taken to a computer repair shop that expectation of privacy is "modified": R. v. Cole, 2011 ONCA 218, per Karakatsanis J.A. (as she then was), reversed on other grounds 2012 SCC 53. Indeed, it is clear to me that it is "modified" in a way that diminishes the privacy that can reasonably be expected: R. v. Winchester, supra, R. v. Villaroman, supra; R. v. Baribeau, supra. I appreciate that Mr. Butters did not anticipate the technicians would review his Linux files, but he did relinquish physical control over the computer, he did share his Linux password with them, and he did nothing to direct them not to open the Linux files. Contextually, his expectation of privacy, while still present, was reduced.
[76] The impact of the warrantless search and seizure was also reduced by the fact that objectively Cst. Ethier had reasonable grounds to seize the computer without violating the Charter, pursuant to the exigent circumstances doctrine. Any reasonable expectation of privacy Mr. Butters had in the computer's contents at that point was fragile; had Cst. Ethier known how to proceed, Mr. Butters could have made no complaints about the computer and residence searches that occurred.
[77] I appreciate that the availability of Charter compliant options can make a Charter breach more serious, but not in this case. That consideration applies in cases where officers knowingly or recklessly choose to breach the Charter and forego legally available options: R. v. Buhay, supra at para. 63 Where this occurs the officer is demonstrating contempt for the Charter, thereby aggravating the seriousness of the breach. A Charter breach is not rendered more serious, in my view, simply because an officer could have used a constitutionally valid technique that they were unaware of. The seriousness of the breach in such cases is measured adequately, as I have done above, by examining how significant the officer's ignorance is. The current point relevant to the degree of intrusiveness of the breach is that the unconstitutional search and seizure in question trod upon what at the time was a very fragile reasonable expectation of privacy.
[78] Then there is the valid "Swansea warrant" that was secured. This also reduces, in my view, the intrusiveness of the Charter violations. The very images viewed unlawfully prior to December 10, 2012 where available to be lawfully viewed after December 10, 2012.
[79] In my view, the lowered reasonable expectation of privacy that Mr. Butters had in his computer contents also has a collateral impact on the intensity of the reasonable expectation of privacy he had in his home. The lawful discovery of child pornography on the computer, a risk Mr. Butters created by lodging the computer containing contraband with a repair shop, would have operated as a legal key to his home. That lawful discovery would have assured that a valid search warrant for the home could have been secured. In this case, when that sanctity was breached it was breached using a warrant that was lawful, notwithstanding inclusion in the Information to Obtain of unconstitutionally obtained information.
[80] Finally, it is important to point out that while the failure to file a Report to a Justice does represent a failure to protect Mr. Butters' Charter protected interests, in this case the forensic examination of the computer was completed not during an unlawful retention period but under the authority of a valid search warrant, probably during the period specified in the warrant. Moreover, the same object, the Intel Dual 2 Computer Tower, was the subject of a valid Report to a Justice within 13 days of the warrantless seizure. This is not a case of the property of the accused housing private information languishing in the possession of the police without lawful authority for a protracted period. The failure to secure a Report to a Justice created a gap that was, practically speaking, of no real significance.
[81] In sum, what happened here is that the search and seizure of the computer was conducted in a manner that does significantly compromise Charter protected interests, namely, without reasonable and probable grounds and without a warrant, and this unlawful search was relied upon to support the breach of the sanctity of his home. All of this occurred, however, in circumstances where Mr. Butters' reasonable expectation of privacy was fragile, and where the same information and interests that were compromised were later compromised with lawful, judicial approval. The impact of the breaches on Mr. Butters' Charter protected interests was modest.
3. The Impact of Exclusion
[82] The final factor to be considered is the impact that exclusion would have on the repute of the administration of justice. The evidence sought to be excluded is highly reliable. The information about the computer images secured after the warrantless search of December 4, 2012, is reliable evidence, because the images have been secured through forensic copy and are available for examination. They can be used to evaluate the oral descriptions given by the police witnesses. The target evidence secured from the home is also reliable. It is real evidence that speaks for itself.
[83] All of the evidence sought to be excluded is central to the case for the Crown on the serious charges Mr. Butters faces. Without the computer evidence all that is left for Count 1 is the testimony of Mr. Wessman about what he observed. This is a pale replacement for the evidence sought to be excluded. And the evidence discovered in the home is essential to the serious charge alleged in Count 2.
4. The Decision
[84] What then, does the balancing of these considerations require in the long term interest of the repute of the administration of justice? In my view, even though the breaches that occurred were serious, they had little practical impact on Mr. Butters' interests. This is not a case where police ignorance enabled officers to secure evidence they would not otherwise have been entitled to, or where Mr. Butters experienced intrusion into areas of privacy that otherwise would have been preserved. This is a case where had the police known what they were entitled to do, they could have gone down the path they did uneventfully, and where ultimately they did secure lawful authority to conduct the ultimate forensic examinations that were conducted. I am positive that a reasonable member of the public, cognisant of the importance of Charter protected interests, would not be impressed by the actions of the police in this case, but I am not satisfied on the balance of probabilities that it would bring the administration of justice into disrepute in the eyes of reasonable people for this court to admit the evidence to enable this case to be prosecuted on its merits. The application for exclusion of all of the evidence is therefore denied.
[85] Given the evidence being admitted, and the realistic concession by defence counsel that the Crown case has been proved beyond a reasonable doubt, I am finding Mr. Butters guilty on Counts 1 and 2.
Released: May 1, 2014
________________________________________
The Honourable Justice David M. Paciocco
Footnotes
[1] Even though Cst. Ethier's notes record that he attended a "suspicious incident" call I accept his testimony on this. It is most unlikely he would have been sent to a generic "suspicious incident" call, on his own, without identifying the nature of the call.
[2] It is entirely believable that Cst. Ethier, given his inexperience in these matters, would have sought assistance as he testified. I am less confident that Cst. Ethier was told to review the files to confirm the presence of child pornography. He did not mention this when initially recounting his instructions during his examination in chief.
[3] There is no reason to believe that Cst. Ethier was confused about this during his testimony. All of this is recorded in Cst. Ethier's notes at the time and I accept that he was intending to be truthful on these matters.
[4] I believe that this effort was made even though Mr. Wessman's evidence suggests that if this happened he would have likely retrieved the call. Cst. Ethier's notes do record Mr. Wessman's phone number and this would have been an obvious investigative step.