Court File and Parties

Ontario Court of Justice

Date: 2014-10-28

Court File No.: Halton 1211120019394-S

Between:

Her Majesty the Queen

— AND —

Marc Goodfellow

Before: Justice F.L. Forsyth

Heard on: November 5, 6, December 2, December 6, 2013 and March 4, 2014

Reasons for Judgment released on: October 28, 2014

Counsel:

• K. Frew, counsel for the Crown
• D. Embry, counsel for the defendant Marc Goodfellow

FORSYTH, J.:

Introduction

1Mr. Goodfellow was charged with one count contrary to s. 163.1(4) of the Criminal Code. He retained Mr. Embry who filed a s. 8, 10(b) and 24(2) Charter application on his behalf. He and the Crown complied with the Rules of Court with respect to the application and the Crown's filing of its response.

2It was agreed by both counsel and also the Court that the matter should proceed as a blended trial and Charter Application.

3The s. 8 application sought a ruling by the Court that a search warrant that had been obtained by the police for the home in which the accused happened to reside should be quashed and all evidence of allegedly pornographic images that had been discovered and seized by the police during the search of the accused's computer be excluded from the body of trial evidence pursuant to s. 24(2) of the Charter.

4Conjunctively, Mr. Embry sought a ruling that the accused's s. 10(b) rights had been breached during the course of the execution of the search warrant and concomitantly that any verbal utterances that the police had obtained from him as a direct result of the breach should be excluded from evidence pursuant to s. 24(2).

5There was no application by Mr. Embry on behalf of the applicant to cross-examine the affiant of the Information to Obtain the Search Warrant. The Court received supplementary oral submissions to those contained in the applicant's filed application record and the Crown Response with respect to the s. 8 search warrant motion on November 5, 2013. Upon the conclusion of those submissions I reserved my ruling and the Court received some trial evidence on November 6, 2013.

6On December 2, 2013 the Court received supplementary oral submissions on the applicant's s. 10(b) motion from both counsel. I also reserved on that motion until February 5, 2014 on which date I rendered my rulings on the s. 8, 24(2) and 10(b) applications but without reasons. These are my reasons.

The Section 8 Search Warrant Application to Quash

7I intend to incorporate much of the applicant's foundation for, and written submissions in support of, his s. 8 and 24(2) application directly from his application record which, of course, is filed with the Court.

8In paras. 3 to 7 Mr. Embry outlined his understanding of the factual underpinning for the eventual search warrant that was obtained by Detective Constable Kent of the Halton Regional Police Service ("HRPS"):

3. On December 21, 2011 the National Child Exploitation Coordination Centre (NCECC) of the RCMP received information from Interpol indicating that the Netherlands Child Pornography Intelligence Unit had seized a file that contained child pornography. It was further learned that this file had been downloaded to a "computer" using the IP address 174.93.84.254 on May 20, 2011.

4. Officer Raymond of the RCMP, upon receiving this information visually confirmed that the file in question contained child pornography, confirmed that the IP address was associated with Bell Canada and sent a Law Enforcement Request to Bell Canada requesting the subscriber information associated with the IP address at the time of the alleged download. A follow up request was sent by RCMP Officer Nairne on January 27, 2012. On January 29, 2012 Bell responded to the request, indicating that as of May 20, 2011 the IP address in question was associated to Wilma Stutt of 798 Syer Dr. Milton, Ontario.

Follow Up Investigation by Halton Regional Police

5. On June 13, 2012 RCMP D.C. Kent conducted a search of local files related to Wilma Stutt and 798 Syer Drive, Milton. D.C. Kent discovered that police had attended 798 Syer drive "in the past" and that the following seven individuals were associated with the address.

6. Further investigation revealed that the driver's licences of Terrence Goodfellow, Benjamin Stutt, Wilma Stutt and Jacob Raspa listed 798 Syer Drive as those individuals' address. An internet phone directory listed a phone number registered to Wilma Stutt and Terry Goodfellow with an address of 798 Syer Drive, Milton Ontario.

7. D.C. Kent conducted surveillance of 798 Syer Drive on June 13, 2012 and June 14, 2012. On June 13, 2012 D.C. Kent detected two wireless networks both of which were password protected and a vehicle registered to Wilma Stutt. On June 14, 2013 D.C. Kent observed the same networks and observed two vehicles which are registered to Wilma Stutt parked at the residence.

9In paras. 8 to 11 Mr. Embry identified what, in his submission, were the centrally integral areas of information provided to the issuing Justice of the Peace which should be the object of judicial scrutiny by this Court in its task of reviewing the question of whether the issuing Justice had sufficient reasonable and probable grounds to issue the warrant.

Information to Obtain

8. On June 27, 2012 D.C. Kent sought a search warrant and relied on the above facts to establish that a criminal offence had been committed and that a search of the residence that included a forensic examination of any computer found therein would provide evidence in relation to that offence.

9. In support of the proposition that evidence of the offence could presently be located within the residence, D.C. Kent relied on the above facts as well as the following factors:

• Although a person may delete a file from a computer, evidence of the prior existence of that file may remain on the computer.
• A forensic examination of a computer can assist in determining who was using a specific computer at a specific time.
• A wireless router that broadcasts an unprotected signal may contain identifying information regarding any computer that connected to it.
• On June 13 and 14, 2012 there was evidence of two password secured wireless internet signals in the area of 798 Syer Drive Milton.
• In the experience of D.C. Kent individuals who collect child pornography files typically keep such files for "long periods of time" and in multiple storage capacities.
• The suspect may have stored the file in question in a broad range of electronic and non-electronic storage mediums.
• The suspect must have a working knowledge of computers and the internet.
• All of the storage items noted can be found in a location where computers are housed.

10. On page 17 of the ITO, D.C. Kent adds to the above by noting:

"I understand that the offence occurred approximately 13 months ago, however the occupants of 798 Syer Drive Milton appear unchanged, as the phone number is still registered to the identified occupants of the house, and the various driver's licences associated to the occupants also provide a current address of 798 Syer Drive in Milton Ontario."

11. A search warrant was issued on June 27, 2012 and executed the next day. As a result of the search multiple computers, two of which allegedly contain child pornography were seized. In addition, the Applicant was discovered in the residence and was questioned at which time he allegedly made an inculpatory statement.

10At para. 50 of the Crown's written response, also filed with the Court, Ms. Frew agrees with the applicant's statement of the underlying facts that led to D.C. Kent composing the Information to Obtain ("ITO") the search warrant. The Crown also took no issue with the accuracy of the context of the impugned portions of the ITO that were outlined in the applicant's paras. 8 to 11.

11With respect to the legal standard to be applied to the issuing of a search warrant Mr. Embry stated at para. 12:

In order for a search warrant to properly issue there must exist reasonable and probable grounds that a search will uncover evidence of an offence. Put another way, there must be reasonable and probable grounds that evidence of an offence exists and is presently located in the location to be searched. Mere speculation or suspicion that evidence may be found at a location is not enough. There must be reasonable and probable grounds to believe that such evidence will be found.

12In paras. 13 to 33 Mr. Embry articulated his submissions in support of his argument that the ITO, analyzed in its totality from both the subjective viewpoint of the issuing Justice and also by an objective analysis of this Court, did not provide the learned Justice with the requisite reasonable and probable grounds to have issued the subject search warrant.

Lack of Reasonable and Probable Grounds

13. It is conceded that given the information available to the police there were reasonable and probable grounds to believe that on May 20, 2011 the file containing child pornography was downloaded onto a "computer" located at or near 798 Syer Drive, Milton.

14. However, in the present case there were no reasonable nor probable grounds to believe that evidence related to the offences of possessing and accessing child pornography would be found at 798 Syer Drive, Milton over 13 months later on June 28 2012; the time the search warrant was executed.

15. In order for there to have been reasonable and probable grounds to believe evidence would be found at 798 Syer Drive there would have had to be reasonable and probable grounds to believe:

i. The individual responsible for downloading the file in May 2011 resided at 798 Syer Drive at that time and continued to reside there in June 2012.

ii. The individual responsible for downloading the file in May 2011 did so using a computer from inside 798 Syer Drive which, at the time the search warrant was sought, remained inside 798 Syer Drive.

iii. The file or traces thereof would still be on the "computer".

16. As will be outlined below, the limited information available to the police along with the passage of time cast significant doubt on each of the above factors such that it cannot be said that there were reasonable and probable grounds that any evidence capable of being uncovered by a search existed at the time the warrant issues.

i. There was insufficient evidence that the individual responsible for downloading the file in May 2011 resided at 798 Syer Drive at that time and continued to reside at 798 Syer Drive in June 2012.

17. As noted above, at page 17 of the ITO, the affiant notes that "I understand that the offence occurred approximately 13 months ago, however the occupants of 798 Syer Drive Milton appear unchanged."

18. A careful examination of the Information to Obtain reveals that this is a dramatic overstatement. With the exception of Wilma Stutt, a 64 year old woman with no criminal record, there is no evidence as to who resided at 798 Syer Drive in May 2011.

19. The six other people are listed in the ITO they are simply noted to be "associated" with the address. Whereas it is true that as of June 13, 2012 the drivers licenses of Terrence Goodfellow, Benjamin and Jacob Raspa list 798 Syer Drive as their address and that the phone number associated to 798 Syer Drive as co-registered to Terrence Goodfellow the ITO contains no information as to where these individuals resided in May 2011.

20. Although these individuals may have resided at 798 Syer Drive in May 2011 it is equally likely that they did not. Similarly, individuals other than those associated to the house in June 2012 may have resided at the address in May 2011.

21. In this way, the continuity of residents asserted by D.C. Kent is dramatically undermined and there are no reasonable or probable grounds to believe that anyone other than Wilma Stutt resided at 798 Syer Drive in both May 2011 and June 2012.

ii. There was insufficient evidence that the individual responsible for downloading the file in May 2011 did so using a "computer" from inside 798 Syer Drive and the "computer" used to download the file remained inside 798 Syer Drive until June 2012.

22. First, it is important to appreciate just how broadly "computer" is defined in the ITO. At footnote 2 the affiant notes that:

"For the purposes of this information, a "computer" is a box that houses the central processing unit (CPU), along with any internal storage devices such as hard drives, that store information in the form of files, and internal communication devices (such as internal modems capable of sending and receiving electronic mail or a fax) along with any other hardware stored or housed internally. Thus, a "computer" refers to the hardware components, capable of being operated by software."

23. Defined in this way "computer" encompasses any and all devices capable of connecting to the internet. Whereas the image that may come most readily to mind is that of a "desktop" or "tower" computer, this definition includes many more devices. As defined in the ITO a "computer" could refer to:

• A traditional desktop computer.
• A portable laptop computer.
• A portable "netbook" computer.
• A "smartphone" such as the iphone.
• A regular cell phone with wifi capabilities.
• A tablet such as the ipad.
• A "console" videogame system such as a Playstation.
• A portable videogame system such as the Playstation Portable or Nintendo DS.

24. All of these devices are capable of connecting to the internet via a wireless network and downloading files. Further, the majority of these devices are portable.

25. Whereas there is evidence that the wireless networks in the area of 798 Syer Drive were password protected in June 2012 there is no evidence as to the status of those networks in May 2011. The fact that the nature and status of wireless networks may change is evidenced by the fact that D.C. Kent investigated and reported the status of the wireless networks surrounding 798 Syer Drive on two subsequent days. Given that over a year had passed, the notion that the wireless networks observed in June 2012 reflected the wireless networks in May 2011 amounts to nothing more than speculation.

26. The Officer makes special note that the wireless networks surrounding the address were password protected because if they were not anyone within range of the network could access it from outside the house using one of the mobile devices listed above.

27. Ultimately, given the broad definition of "computer", the unknown status of the wireless networks in May 2011 and the very limited nature of the information available to the police (i.e. that a single download was made in May 2011) it is impossible to assume that the file was downloaded by an individual using a device from within the house.

28. In the alternative, even if one were to assume the file was downloaded onto a device inside the house in May 2011 there was no evidence before the issuing Justice that the device was likely to remained in the home.

iii. There was insufficient evidence that the file or traces thereof would still be on the "computer".

29. At page 14 D.C. Kent notes:

"It has been my experience, through training and investigating offences against children, that individuals who download and/or collect child pornography files typically retain such files in their possession for long periods of time, often in multiple (including duplicate) storage capacities. In some cases their collection is considered their most prized possession and they will not likely part with it".

30. Simply stating that individuals who possess child pornography tend to retain such files according to the Officer's training and experience is precisely the kind of unsupported statement that the Court of Appeal for Ontario warned against in R. v. Brown.

31. Again, given the extremely limited information available it is unreasonable to assume that the downloaded file would be retained. Indeed, elsewhere in the ITO the Officer addresses the equally likely scenario of an individual deleting the file in question. At page 13 of the ITO D.C. Kent notes that:

"although a person may delete information from a computer, evidence of the information may remain on the hard drive of the computer in what is referred to as 'unallocated space'. This information will remain on the hard drive until the information is 'written over' by the computer".

32. At page 17 D.C. Kent reiterates the point:

"I recognize that this offence was committed on May 20th, 2011 and that the police do not have any fresher information to support the investigation, however I know that information can remain on a computer for an undetermined amount of time, even if deleted by the user, in unallocated space".

33. The grounds as presented by the Officer amount to nothing more than speculation and present no positive grounds to actually believe the file or traces thereof would be found in 798 Syer Road. Taken at its highest the most that can be said is that a file "may" or "can" remain on a computer for an "undetermined" amount of time. Given the extended period of time between the alleged offence and the search, while there existed some grounds to believe the file could be found at 798 Syer Road there were no grounds to suggest it would be.

Supplementary Submissions by the Applicant on the s. 8 Search Warrant Quash Application

13On November 5, 2013 Mr. Embry made supplementary oral submissions. Mr. Embry submitted that the Netherlands Child Pornography Intelligence Unit information that was provided to the HRPS only revealed that one file with what he described as a somewhat innocuous description had been downloaded to a computer at the suspect address. He submitted that the description would not lead to an obvious conclusion that the file was an explicit pornography file, child or adult.

14He also referred the Court to the fact that there is no evidence in the ITO to support a conclusion that anyone at the suspect address had opened this file or downloaded and stored the file. Further to that point, he urged the Court to carefully study the footnotes supplied by D.C. Kent in the ITO and referred the Court as an example to footnote number 6 on page 5. After carefully reading that footnote, Mr. Embry argued that the Court should find that there was no indication that a file that is downloaded is always stored.

15In addition, Mr. Embry submits that the ITO did not identify for the J.P. the type of device to which the file was downloaded and also that the ITO refers only to the term "access" as opposed to "possession" of the file.

16Specifically, Mr. Embry submitted that the fact that there was only one file referred to by the Netherlands Child Pornography Intelligence Unit weakens the objective sufficiency of the information provided to the J.P. that would allow the learned Justice to conclude that it would be probable that that file would still be in that residence more than a year later.

17Additionally, Mr. Embry submits that the ITO contains no information for the learned Justice that the nearby wireless signals which were active on May 20, 2011 were locked to outside passwords. Therefore, he submits that the Justice of the Peace should not have been able to conclude that someone who was living in the house in question must have downloaded the file if anyone did download the file regardless of the fact that the ITO did contain information that those wireless networks proximate to the suspect house were password protected in June of 2012 as opposed to May 20, 2011.

18Mr. Embry also submitted that the ITO contains no information about the type of device to which this single file had been downloaded, if at all. He argues that the Justice of the Peace would have to speculate as to whether or not the device contained a hard drive which could possibly retain the file for 13 months. Mr. Embry refers the Court to paras. 22, 23 and 24 of his memorandum of argument:

22. First, it is important to appreciate just how broadly "computer" is defined in the ITO. At footnote 2 the affiant notes that:

"For the purposes of this information, a "computer" is a box that houses the central processing unit (CPU), along with any internal storage devices such as hard drives, that store information in the form of files, and internal communication devices (such as internal modems capable of sending and receiving electronic mail or a fax) along with any other hardware stored or housed internally. Thus, a "computer" refers to the hardware components, capable of being operated by software."

23. Defined in this way "computer" encompasses any and all devices capable of connecting to the internet. Whereas the image that may come most readily to mind is that of a "desktop" or "tower" computer, this definition includes many more devices. As defined in the ITO a "computer" could refer to:

• A traditional desktop computer.
• A portable laptop computer.
• A portable "netbook" computer.
• A "smartphone" such as the iphone.
• A regular cell phone with wifi capabilities.
• A tablet such as the ipad.
• A "console" videogame system such as a Playstation.
• A portable videogame system such as the Playstation Portable or Nintendo DS.

24. All of these devices are capable of connecting to the internet via a wireless network and downloading files. Further, the majority of these devices are portable.

19With respect to D.C. Kent's statements in para. 6 on page 13 and para. 4 on page 17 of the ITO, Mr. Embry submits that she is setting out no more than conjectural possibilities concerning the hard drive storing and retaining capabilities of various electronic devices:

6. I have consulted with Detective Constable Kevin Harvey, a police officer with the Halton Regional Police Technological Crime Unit, and I know that although a person may delete information from a computer, evidence of the information may remain on the hard drive of the computer in what is referred to as "unallocated space". This information will remain on the hard drive until the information is "written over" by the computer.

4. I recognize that this offence was committed on May 20, 2011 and that police do not have any fresher information to support the investigation. However I know that information can remain on a computer for an undetermined amount of time, even if deleted by the user, in unallocated space.

20Both Crown counsel and Mr. Embry supplied the Court with a number of common-law precedents in support of their respective positions.

21Mr. Embry referred the Court to the decision of R. v. Stemberger, [2012] O.J. No. 221, 2012 decision of Mr. Justice Borenstein. Mr. Embry refers the Court to this decision as an example of an Information to Obtain a Search Warrant which was upheld by Justice Borenstein and under circumstances which objectively justified the issuing of the search warrant as opposed to the circumstances Mr. Embry submits are present in this case. In my view, the relevant portions of that decision can be set out as follows:

[1] 22-year-old Luke Stemberger is charged with accessing and possessing child pornography. The evidence to be used against him was seized following the execution of a search warrant at his parents' home on December 15, 2010. Luke Stemberger lived at the home with his parents and twin brother at the time of the execution of the search warrant.

[2] The Toronto police had been advised by the Netherlands police that a computer in the Stemberger's home accessed 70 pictures of child pornography from a hacked website in August 2009. The images were not downloaded, they were viewed by a computer or other device in the Stemberger home.

[3] Based on that lead, the Toronto Police Service Child Sexual Exploitation Unit obtained a search warrant for the Stemberger's home which they executed at 7:25 a.m. on December 15, 2010. All of the Stembergers were home at the time. The police did not know which of the occupants may be guilty of this offence or which computer had been used to access the child pornography.

22And further:

"Download"

[43] In the ITO, Manherz explained that the term "download" could refer to two different kinds of activity over the internet. It could refer to the intentional downloading or saving of an image onto a viewer's computer. It could also refer to the automatic transfer of data that occurs onto the viewer's computer operating system when that viewer clicks on a thumbnail image on a website to view that image in a larger format. In that latter circumstance, data will be transferred to the viewer's computer even though the viewer did not necessarily intend to download or save the image. I will refer to the former sense as possessing or saving an image and the latter sense as accessing an image. Manherz explained that, in the ITO, he was using the term "download" to refer only to accessing as opposed to the wilful saving or possessing of images.

[44] The I.P. address connected to the Stembergers' home was one of the addresses that downloaded child pornography from the hacked website. The allegation was that a computer or other device ("computer") in the Stemberger home was used to access child pornography. Seventy distinct images were accessed from the Stemberger I.P. address between August 22 and 23, 2009. There was no allegation or evidence that they saved or possessed those images.

23In particular, Mr. Embry refers this Court to a portion of the Stemberger case which he submits is significantly distinguishable from the circumstances of the Goodfellow analysis at paras. 57, 58 and 59:

Manherz's evidence on the voir dire

[57] Manherz is a very experienced and knowledgeable officer having worked on hundreds of ITO's.

[58] He testified that, upon reviewing the file, he first attempts to form an opinion about whether the accessing was accidental or intentional. The relatively large number of photos accessed, 70 over two days, caused him to infer that this was not an accidental viewing. Further, the imageboard was on the hacked website for only three days and the Stemberger home viewed 70 photos over two of those days. He therefore believed that the person who accessed the child pornography had an interest in child pornography.

[59] He was challenged on the reasonableness of his belief that evidence would be found in the Stemberger home 16 months after the alleged accessing took place.

24Ultimately, Justice Borenstein concluded that even though there were some misleading aspects in the ITO of which he disabused his mind during his review of the sufficiency of the ITO, the search warrant was one that a Justice could reasonably have issued. Mr. Embry strongly urges the Court to find that one of the factors that influenced the decision of Justice Borenstein was the information provided in the ITO by the affiant, Detective Constable Manherz, who was described by Justice Borenstein as a very experienced and knowledgeable officer who had worked on hundreds of ITOs.

25The information which he provided to the Justice of the Peace that the fact that 70 photographs had been accessed over a period of two days supported the reasonable belief that the person who had accessed those images of child pornography had an interest in child pornography. Mr. Embry submits that a Justice of the Peace under those circumstances could quite properly conclude subjectively and also objectively that it was entirely probable that that type of person would want to retain those images and that the mere passage of 16 months from the accessing to the date of the search warrant in and of itself would not be sufficient to render the issuing of a search warrant improper.

26Mr. Embry strongly urges the Court to find that P.C. Kent was not entitled to make the same assertion to the learned Justice of the Peace that she set out in her ITO at paras. 3 on page 4 and 2 and 3 on p. 12 with the only information known to her at the time being that one file had been accessed some 13 months earlier:

3. On Wednesday June 13th, 2012 I read an email received from Ottawa Interpol to the NCECC Triage and learned the following information:

3.1 On the 21st of December 2011 at 11:36 am the National Child Exploitation Coordination Centre (NCECC) of the Royal Canadian Mounted Police (RCMP) received information from Interpol, Ottawa, regarding Operation LoCo. This is a child abuse material operation concerning Canada. This information was provided by Michael Moran Acting Assistant Director, Cyber security and Crime of Interpol.

3.2 Operation LoCo started when the Netherlands Child Pornography Intelligence Unit seized a file "grl.015.rar" from a hosting provider in their jurisdiction. This compressed file contained a video of a pre-pubescent female performing fellatio on an adult male. This child has not yet been identified but is thought to be Canadian.

3.3 Members of the Victim Identification Unit are actively seeking to identify and rescue this child from harm.

3.4 This file had been uploaded to a one-click hosting company on the internet. This company is based in Cyprus. This file was then downloaded in Canada by someone using the IP address 174.93.84.254. (This is the IP address of interest to this investigation. Several other IP addresses had been identified as accessing and/or downloading this particular file and are listed in an attached spreadsheet.)

3.5 Michael Moran states that it is likely that the link was posted in a group or on a bulletin board and it is also likely that the person who clicked on the link knew the type of file they were downloading.

3.6 Michael Moran provided an electronic file in relation to this investigation to the NCECC.

2. I believe that a forensic examination of computer(s) found at 798 Syer Drive in Milton Ontario will afford evidence that the offence of accessing child pornography has been committed, contrary to the Criminal Code.

3. I believe that a forensic examination of computers found at this location will afford evidence that a member of this household has been or is currently accessing child pornography [on] the internet.

27In a precedent relied upon in part by both the Crown and Mr. Embry, R. v. Burke, [2013] O.J. No. 2920, a decision of the Ontario Court of Appeal in 2013, Mr. Embry refers the Court to para. 32 of the Court of Appeal's decision:

This is not a case like R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, S.C.C., where the appellant accessed as opposed to possessed child pornography. Here, there were two key pieces of information as to why there were grounds to believe that a search would still provide evidence of an offence: 1) the affiant's comments about the practices of people who download child pornography, namely, that these individuals keep images for long periods of time; and 2) strong evidence that the appellant had already possessed child pornography for an extended period. The nature of the item sought and believed to be retained is a factor which may inform that the reasonableness of a belief that possession continues: R. v. Ward, 2012 ONCA 660, Ont. C.A., at paras. 115-16. The police observed that videos of child pornography had been offered from the appellant's computer over a period of eight months and the warrant was executed one month after the latest observation. I see no basis to interfere with the conclusions of the Justice of the Peace and the trial judge that the affiant held a reasonable belief that child pornography remained on the appellant's computer.

28Mr. Embry submits that this Goodfellow case is much more akin to R. v. Morelli, supra, than it is to any other of the precedents submitted by the Crown or the defence. For one reason, he refers to the fact that the Goodfellow ITO is entirely concerned with accessing and not possessing child pornography. He also argues that the Burke and Stemberger cases also have a plethora of evidentiary context of many images and/or file sharing incidents which were available for the learned Justice of the Peace to consider and which could have supported objectively his subjective RPG to believe that the material would still be on a computer in those residences.

29Finally, Mr. Embry relies heavily upon the rationale stated by Mr. Justice Fish speaking for the majority of the Supreme Court of Canada in R. v. Morelli, supra.

30In particular, with respect to D.C. Kent's assertions in her ITO about the characteristics of child pornography offenders, he refers the Court to paras. 71, 72 and 73:

[71] In my view, the ITO does not establish either the veracity of the generalization about the alleged "type of offender", nor that the accused is in fact the "type" to which the generalization might have applied.

[72] More specifically, the ITO makes two statements about the "propensities" of offenders. It first states that "these type[s] of offenders are habitual and will continue their computer practices with child pornography" (ITO, at para. 12). This claim is attributed to Corporal Boyce of the RCMP Technological Crime Unit. The ITO also claims that "offenders treasure collections on their computer and like to store them and create backup's (sic) in case they loose (sic) it. Discs and floppy disks are used for this purpose. Offenders will typically sort information and store pictures on different file names to catagorize (sic) them." (ITO, at para. 13). This statement is attributed to Constable Huisman of the Saskatoon Police Service Vice Unit.

[73] The main difficulty with these generalizations about certain "types of offenders" is that they are entirely devoid of meaningful factual support. The ITO contains no evidentiary material in this regard, even anecdotal, apart from the bald assertion of the two police officers. Furthermore, there is virtually nothing to describe, let alone establish, the expertise of the officers to whom the claims are attributed. The only information provided in the ITO consists in the officers' names, positions, and places of work. This is surely an insufficient evidentiary basis to enable a justice of the peace, hearing an application ex parte, to determine that the generalization is sufficiently credible or reliable to form the basis for a finding of reasonable and probable grounds.

31Mr. Embry then refers the Court to additional statements by Mr. Justice Fish which seem to be expanding upon his statements in those paragraphs contained in paras. 76 through 79 and 81:

[76] Perhaps even more troubling than the paucity of information as to the basis for the officers' opinions is the fact that the class of persons to whom specific proclivities are attributed is defined so loosely as to bear no real significance. Both officers speak about the propensities of undefined "types of offenders" or simply "offenders".

[77] While it is clear from the context that the officers are referring to some variety of child pornography offenders, it cannot be assumed, without evidence, that broad but meaningful generalizations can be made about all persons who commit (or are suspected of committing) child pornography offences. For example, a person with an exclusive interest in child pornography is surely of a different "type" than a person who is primarily or exclusively interested in legal adult images, but has nevertheless downloaded a small number of illegal images. Similarly, a person who seeks out pornographic images of young children or infants is likely a different "type" than a person who views images of teenagers under the age of 18.

[78] These people all commit child pornography offences, but the "propensities" of one type may well differ widely from the "propensities" of others. There is no reason to believe, on the basis of the information in the ITO, that all child pornography offenders engage in hoarding, storing, sorting, and categorizing activity. And there is nothing in the ITO that indicates which specific subset of these offenders does generally engage in those activities.

[79] To permit reliance on broad generalizations about loosely-defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence. I am thus unable to agree with Justice Deschamps (at para. 162) that the ITO's claims in this regard could properly be relied on by the justice.

[81] That some child pornography offenders do seek out and hoard illegal images is, of course, neither surprising nor helpful in determining whether reasonable and probable grounds exist in a particular case. Still, it is not the role of courts to establish by judicial fiat broad generalizations regarding the "proclivities" of certain "types" of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard -- in this case, reasonable and probable grounds for belief. As suggested earlier, moreover, courts must be particularly wary of endorsing such generalizations when, as in this case, the crime alleged is the subject of intense emotional responses and widespread condemnation, and the temptation to rely on stereotype rather that evidence is therefore especially dangerous and strong.

32Mr. Embry concludes his argument by asking the Court to find that D.C. Kent's information provided to the Justice of the Peace in para. 12 of the ITO is absolutely meaningless with respect to the type of offender who is being sought by the police, and should have been considered as meaningless by the Justice of the Peace from an objective analysis standpoint.

Crown Response

The Section 8 Search Warrant Quash Application

33I will begin by referring to some of the contents of the Crown's written filed Charter response materials. At paras. 20 through 23, Ms. Frew stated:

20. The test for reviewing an issuing justice's decision to grant a warrant (or authorization) was set out by the Supreme Court of Canada in Garofoli:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

R v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (hereinafter Garofoli) at para 56.

21. The legal obligation of the affiant seeking an ex-parte authorization is full and frank disclosure of material facts.

R v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992 (hereinafter Araujo) at para 46.

22. In the instant case, the affiant provided the issuing justice with full and frank disclosure of the material facts in a clear and concise manner. There was a sufficient basis for the issuance of the warrant. All information known to the officers was provided to the issuing justice and the timing of the criminal activity was made abundantly clear in the ITO.

23. To establish reasonable and probable grounds… the appropriate standard is one of reasonable probability rather than proof beyond a reasonable doubt or a prima facie case.

R v. Debot, (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193

34The Crown submits that D.C. Kent, after receiving reliable information from her supervisor, which is not disputed by Mr. Embry, that the National Child Exploitation Coordination Centre of the RCMP have received information from Interpol that a video file containing child pornography had been downloaded in Canada at an address which turned out to be 798 Syer Drive, Milton, Ontario, which was the address of Wilma Stutt. She then verified that information from the RCMP and informed the issuing Justice of the Peace of these facts.

35At para. 25 of her written submissions, Ms. Frew sets out a summary of the evidence that was given by D.C. Kent with respect to the information that she provided to the learned Justice of the Peace about the continuity of the residents of that 798 Syer Drive up to and including June 14, 2012:

25. Det. Cst. Kent verified the information and report provided by the RCMP and proceeded to conduct checks on other persons associated with that address. On June 13, 2012 D.C. Kent continued her investigation and determined that the individuals found to be associated with the address on this date were the same as those that the RCMP Officer received from Bell Canada on January 29th 2012. Furthermore D.C. Kent discovered through NICHE checks that the individuals associated with the address had had previous contact with Halton Police for unrelated occurrences and provided the same home address since 2009. D.C. Kent further investigated driver's licences of some of the individuals associated with the address and found that 798 Syer Drive was listed as the individuals' address. On June 14, 2012 D.C. Kent observed vehicles in the driveway registered to Wilma Stutt, the same individual holding the Bell Canada account over a year earlier.

36At para. 26 Ms. Frew presents her submissions to the Court that there were reasonable grounds, subjectively at least for the issuing Justice to believe that there would be evidence found in the house at 798 Syer Drive in Milton on the date of the requested issuing of the warrant:

26. The Respondent submits that there were reasonable grounds for the issuing justice to believe that there would be evidence found in the house at 798 Syer Drive in Milton, Ontario. The occupants of the home at 798 Syer Drive appeared to be unchanged since the initial download occurred. Furthermore, Det. Cst. Kent relied on her knowledge and experience in this area of law enforcement in seeking the warrant that evidence would be presently located within the residence (ITO page 12-15).

37At para. 27 of her written submissions, Ms. Frew refers to what she understands to be the submissions of Mr. Embry on behalf of the applicant with respect to the standard that would have to be established for the Justice of the Peace to have reasonable and probable grounds to believe that evidence would be presently found at 798 Syer Drive:

27. The Applicant asserts that in order for there to have been reasonable and probable grounds to believe evidence would be found at 798 Syer Drive there would have had to be reasonable and probable grounds to believe:

1. the individual responsible for downloading the file in May 2011 resided at 798 Syer Drive at that time and continued to reside there in June 2012

2. the individual responsible for downloading the file in May 2011 did so using a computer from inside 798 Syer Drive which, at the time the search warrant was sought, remained inside 798 Syer Drive

3. The file or traces thereof would still be on the computer

38At para. 28 Ms. Frew submits to this Court that there were indeed reasonable and probable grounds for the learned Justice of the Peace to reasonably believe that each of those above-mentioned grounds had been met to at least the required threshold of subjective reasonable and probable belief and that also that subjective belief should stand the test of an objective analysis by this Court.

39At para. 29 Ms. Frew submits that the Justice of the Peace could rely upon D.C. Kent's experience and knowledge in this area of law enforcement as the officer had stated it in her ITO to inform his analysis of whether or not reasonable and probable grounds existed to believe that the computer or device that had been used to download the video in question would still be found in the residence of 798 Syer Drive on the date when the warrant was being requested. Ms. Frew sets out her reasoning for that submission at paras. 29 and 30:

29. Based on D.C. Kent's careful investigation, the occupants appeared to be unchanged. D.C. Kent was diligent in verifying that the subscriber to Bell Canada was the same individual from May 2011 to June 2012, the phone number registered to the home remained the same, the various driver's licences associated to the address confirm the current address of these individuals. The individual who had used a computer to download the video used the Bell Canada IP address and given Det. Cst. Kent's experience and knowledge in this area of law enforcement it was reasonable to believe that the computer or device would be found in the home.

30. Given the connection and the timeline that Det. Cst Kent was able to establish linking the same people to the home in June 2012 to those that were residing there in May of 2011 when the material was known to be accessed, there was reasonable and probable grounds that evidence still existed at the home at 798 Syer Drive on a computer or related device as stipulated in the warrant issued.

40In support of this argument, Ms. Frew relied upon and referred the Court to R. v. Stemberger, supra. However, as Mr. Embry emphasized in his own submissions, the Crown did not deal with the distinguishing characteristic between Stemberger and Mr. Goodfellow's factual situation with respect to the approximately 70 images that were found to have been downloaded in the Stemberger case by comparison with the single image in the Goodfellow case. I simply mention this to point out that Mr. Embry had attempted to distinguish the Crown's reliance upon the Stemberger decision on that basis.

41In her final submission on the s. 8 application, Ms. Frew states at para. 32:

It was therefore entirely appropriate and justified for the warrant to issue and police to search and seize the Applicant's computers and related computer media despite the length of time from the commission of the offence and the search date.

The Section 24(2) Issue

42Ms. Frew crystallized her position on the s. 24(2) analysis if the Court does find a s. 8 and/or 10(b) breach in paras. 33 and 34 of her written Charter response:

33. If it is found that there was an infringement of the Applicant's Charter rights, the Crown submits that such an infringement, in itself, is not determinative. A judicial balancing must be undertaken comprised of a three part test.

1. The seriousness of the Charter infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused, and;

3. Society's interest in the adjudication of the case on its merits

Grant supra, at para 71

34. It is respectfully submitted that the balancing exercise favours the inclusion of the evidence, namely;

a. The audio-taped interview with the accused and Det. Cst. Kent prior to arrest

b. Spontaneous Utterance

c. the items seized during the execution of the search warrant and any evidence obtained during the search

43With respect to the initial audiotaped interview of the accused by P.C. Kent in the living room the Crown submits that if the Court were to find a violation by that procedure of Mr. Goodfellow's s. 8 Charter right, the Court should also find that it was minimal. The Crown submits that the totality of the circumstances should allow the Court to find that the police were acting in good faith and that there was no flagrant or willful disregard for Mr. Goodfellow's rights.

44The Crown submits that the questions asked were investigatory in nature at the time when they were asked and that the police really had no other option but to try to narrow down the possible suspects from the group of people who were in the house. The Crown submits that there was no reason for the police, D.C. Kent in particular, to suspect Mr. Goodfellow specifically and, therefore, he was not, in the Crown's submission, even detained at the time of this interview.

45The Crown submits that the evidence reveals that as soon as D.C. Kent acquired her RPG for her arrest of Mr. Goodfellow from the spontaneous inculpatory utterance which he made during the interview, she was immediately diligent in safeguarding his s. 10(b) right to counsel and cautioned him on two occasions. Ms. Frew submits that the Court should find from the evidence that D.C. Kent immediately upon arrest asked Mr. Goodfellow if he wished to speak with counsel right away or whether he was willing to wait. Therefore, the Crown submits that this conduct is not demonstrative of a deliberate disregard for the applicant's Charter rights.

46Furthermore, the Crown argues that there is no evidence to suggest that the interview was conducted in an abusive fashion that objectively would allow the Court to find that the accused's autonomous ability to terminate the discussion was in any fashion undermined.

47For these reasons, Ms. Frew submitted that even if there was a breach found by the Court because of that interview, the evidence obtained as a result of it should not be excluded pursuant to s. 24(2) of the Charter.

48With respect to the spontaneous utterance made by the accused, Ms. Frew submits that if the Court were to find that the utterance was as a result of a breach of Mr. Goodfellow's s. 8 Charter right, the Court should also find that a violation was fleeting and "blameless". Ms. Frew points out that D.C. Kent had just completed a preliminary conversation with the applicant. Therefore, she was not anticipating a spontaneous inculpatory statement following the completion of that interview. Once again, the Crown reminds the Court that as soon as the utterance was made, D.C. Kent cautioned the accused, thereby limiting the possibility of any further breach by any further utterances. At the very least, the Crown argues that this conduct of D.C. Kent should allow the Court to find that she was acting in good faith.

49For these reasons, the Crown submits that if the Charter breach is found to have occurred by the Court, then the Court should also find that it was not "profoundly intrusive" and, therefore, the admission of it would not bring the administration of justice into disrepute.

50At paras. 42 and 43 of her written response, the Crown addressed the manner in which the police had executed the search warrant:

The Items Seized During the Execution of the Search Warrant

42. The Charter right infringed is a significant violation on the person as the police were conducting a search in the Applicant's home. However, the police conducted the search with prior judicial authorization to search and seize the Applicant's computers and related media devices. The Justice issuing the warrant was given full and frank disclosure of the evidence available at the time and deemed there was reasonable and probable grounds that evidence would be found at 798 Syer Drive.

43. The seriousness of the Charter infringing state conduct in this case is minimal. The impugned search was handled appropriately and in a dignified manner and according to a reasonable police policy. The police acted in good faith under what they considered to be a valid search warrant. The officers did not go beyond the boundaries of the warrant in their search and in no way abused their power in exercising the search warrant.

51At para. 44 the Crown referred the Court to the decision of R. v. Connor, [2009] O.J. No. 3827 wherein Madam Justice Molloy had stated at para. 100:

Child pornography charges, although obviously not the worst charges under the Criminal Code, are nevertheless very serious, and there is a strong public interest in ensuring that those who exploit innocent children in this way ought to be brought to justice.

52The Crown submits that the evidence that was obtained by the police as a result of the search warrant was physical and, therefore, it is presumptively reliable. Ms. Frew submits that after the Court engages in the appropriate balancing analysis, it should come to the conclusion that the analysis favours the inclusion of the evidence at this trial. Indeed, Ms. Frew submits that given the strong public interest in the serious treatment of offences related to child pornography and the pursuit of meaningful prosecutions of such offences, excluding Mr. Goodfellow's statements and the physical evidence obtained as a result of the search on his computer would be more likely to bring the administration of justice into disrepute than would be the case if the evidence was admitted. (See para. 48 Crown Written Response.)

The Crown's November 5, 2013 S. 8 Supplementary Oral Submissions

53Ms. Frew refers the Court to para. 40 of the Morelli decision, supra:

In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

54The Crown also submits that the Stemberger decision, supra, is the one which is most factually similar to this Goodfellow case. Ms. Frew referred the Court to para. 2 of that decision in support her submission:

The Toronto police had been advised by the Netherlands police that a computer in the Stemberger's home accessed 70 pictures of child pornography from a hacked website in August 2009. The images were not downloaded, they were viewed by a computer or other device in the Stemberger home.

55Once again, I feel compelled to emphasize the distinction between the Stemberger decision in which information from the Netherlands Police to the Toronto Police that a computer in the Stemberger's home had accessed 70 pictures of child pornography from a hacked website which were not downloaded but were viewed by a computer or other device in the Stemberger home from this Goodfellow case in which the information was that only one image had been accessed.

56Ms. Frew submitted that the Courts should find that D.C. Kent stated in her ITO her training and experience in a very clear and detailed manner which was unlike Officer Manherz in the Stemberger decision.

57The Crown conceded that there may well be a somewhat reduced expectation from an objective standpoint to believe that material would still be on a computer if there was no evidence of downloading that material as opposed to simply accessing or viewing it. However, she again urges the Court to find that it was reasonable for the learned Justice of the Peace to rely upon the information provided by D.C. Kent about the likely habits of people who access child pornography with respect to retaining that material.

58The Crown submits that the 13-month gap as exists in the Goodfellow case since the apparent date of the accessing and the June 2012 date of the ITO should be viewed as having been not as damaging to the task of the learned Justice of the Peace when that judicial officer would be entitled to take into account the information provided by D.C. Kent that the same people who were registered on the IP address of the computer in question and also were listed as residents of the home in May 2011 were still listed as residents at the time of the issuing of the search warrant in June 2012.

59Again, with respect to the issue of the 13-month gap between the source of the information and the ITO preparation, the Crown refers the Court favourably to para. 98 of the Stemberger judgment wherein Mr. Justice Borenstein stated:

The defence submission seems to presume that computers that are used in a home will no longer remain in the home 16 months later. I question why that is the presumption, as opposed to the opposite, namely, that the computer known have been used in one's home would presumably remain in the home 16 months later absent anything to suggest otherwise. Would the presumption differ if it were one year, or two years after the alleged accessing? It is entirely speculative. The only evidence on the point is that of Manherz given on the voir dire which I find persuasive; namely, that people do not tend to discard their hard drives given the personal information they contain although it is certainly possible that someone might. Even without Manherz' evidence on the voir dire, I find that the issuing justice could have come to that reasonable inference. Perhaps if a much longer time had passed, the issue of whether the device would still be in the home would be a live one.

60Ms. Frew also acknowledged that the accused, Mark Goodfellow, although not specifically a suspect in the ITO, definitely had a bedroom in the house in question on June 28, 2012 and also that he was living there as of that date. Therefore, the Crown conceded that he certainly had a s. 8 privacy interest in connection with the home.

61Ms. Frew concluded her oral submissions on November 5 reminding the Court that, in her opinion, this factual situation is not one of accessing an image only, but rather that there were reasonable and probable grounds to believe that the image was possessed, as well as accessed.

62In reply, Mr. Embry submitted that the ITO constantly refers to access and never to downloading with respect to this image.

63He also argues that the Supreme Court of Canada in Morelli, supra, states clearly that a curriculum vitae is required to support an ITO affiant's opinions stated therein which are based upon the affiant's experience and training. Mr. Embry refers the Court to para. 72 of that decision. (See supra para. 30)

64Mr. Embry also referred the Court to the Crown's position that D.C. Kent was entitled to state in her ITO that traces of the image or file in question that had been accessed on May 20, 2011 could [emphasis added] still be recovered forensically. Mr. Embry strongly urges the Court to find that there is a significant distinction between stating that something could be recovered forensically as opposed to would be recovered forensically.

65He refers the Court to the Stemberger decision wherein Officer Manherz had stated in his ITO that the images "would be found presently as opposed to could be found presently." Mr. Embry submits that using the verb "could" signifies a level of information that is below even the low threshold standard of RPG to believe that something will be found in a particular place to be searched. He said that that verb can objectively only justify a finding by the Justice of the Peace that it is possible or speculative that the article in question would be found in the house on June 28, 2012. In other words, Mr. Embry was arguing that "could" is too low a standard for RPG to issue a search warrant.

66Mr. Embry argues that the Morelli decision should decide this application for the Court in favour of the applicant's s. 8 motion.

67In brief reply, Ms. Frew argued that website viewing is a passive act, whereas receiving a file by downloading it should result in fragments of that file still being present on the computer even 13 months later. She further argued that even if the Court decides that the portion of D.C. Kent's para. 12 of her Section G grounds to believe the things sought are presently at the place to be searched should not have included a reference to the phrase "or collect child pornography files" and also the sentence "In some cases, their collection is considered their most prized possession and they will not likely part with it", nevertheless there remains in the ITO more than sufficient reliable information upon which the learned Justice of the Peace could have, both subjectively and objectively, formed the requisite RPG to have issued this search warrant.

68For added emphasis, she refers the Court to para. 6, 7 and 8 within the same section of the ITO:

6. I have consulted with Detective Constable Kevin Harvey, a police officer with the Halton Regional Police Technological Crime Unit and I know that although a person may delete information from a computer, evidence of the information may remain on the hard drive of the computer in what is referred to as "unallocated space". This information will remain on the hard drive until the information is "written over" by the computer.

7. I reasonably believe that although the person responsible for accessing this video on the internet may have attempted to delete the evidence, a forensic examination can result in retrieving the deleted information.

8. I know from my training and personal experiences that a computer may have multiple users and may require a log on process, that is password protected specific to each user. I know that a forensic examination can provide information to assist in identifying a user of that computer at a specific time. For instance, if a person is accessing electronic banking, an account number and password will be required to access that specific site. A username and a forensic search of the internet history of a computer can assist police in identifying the individual accessing a computer at a specific time.

The Section 10(b) Charter Application

Position of the Defence

69On December 2, 2013 I received submissions from both Mr. Embry and Ms. Frew with respect to the s. 10(b) Charter application.

70Mr. Embry argued that the Court should find that Mr. Goodfellow was detained from the moment he entered his house and was confronted by P.C. Buchanan who identified himself as a police officer, dressed in a police uniform complete with police bulletproof vest, and immediately began to question Mr. Goodfellow. Mr. Embry submits that an examination of the evidence should allow the Court to conclude that the questions were probing and that P.C. Buchanan never told Mr. Goodfellow that he was free to leave the house. In his testimony the officer simply said that if Mr. Goodfellow had asked him he would have allowed him to leave.

71Mr. Embry submits that at the very least, even if the Court does not find that Mr. Goodfellow was detained from the point of his entry and encounter with P.C. Buchanan when P.C. Buchanan told him to sit in the living room and wait for D.C. Kent, he was obviously most certainly detained by the police at that point. Mr. Embry submits that the evidence reveals that D.C. Kent was asking probing questions about her actual investigation and she actually audiotaped it.

72At this point, on consent of the Crown, a transcript of the audio statement interview of Mr. Goodfellow by D.C. Kent on June 28, 2012 was entered as Exhibit 3A. Also on consent entered as Exhibit 3B was an additional audio statement conducted on June 28, 2012 by D.C. Kent. Exhibit 3A related to the Exhibit Number 1 CD that had been earlier filed and Exhibit 3B related to the Exhibit Number 2 CD which had been earlier filed as a defence exhibit. In effect, Exhibit 3A and Exhibit Number 1 were Crown exhibits and Exhibit 3B and the Exhibit Number 2 CD were defence exhibits.

73At page 13 of Exhibit 3A, D.C. Kent had asked the following questions and elicited the following answers from Mr. Goodfellow:

Kent: Okay, I'm going to show you a picture and I want ah you to tell me if you recognize this person.

Goodfellow: No.

Kent: Have you ever seen her picture before?

Goodfellow: No.

Kent: Have you ever seen a movie with her in it before?

Goodfellow: No.

74Mr. Embry submits that the central issue on this application is whether or not the questions that were asked by D.C. Kent or any other officer at the scene should be considered by the Court to have been permissible preliminary questions when an officer is simply trying to find out some background information in order to decide whether or not to continue an investigation, or whether the Court should conclude that the questions were asked in furtherance of an investigation being conducted by that officer. If the conclusion by the Court is the latter Mr. Embry submits that the s. 10(b) Charter rights informational requirement by the police to Mr. Goodfellow would be triggered.

75Mr. Embry refers the Court to D.C. Kent's evidence wherein she stated that the accused made what could only be considered to be an inculpatory utterance immediately upon the conclusion of the Exhibit 3A audio interview. Mr. Embry argues that this utterance of the accused was obviously in response to D.C. Kent's final questions when she had asked him if there was anything else that he could give her at that point and that that was the time to do it, if so. Therefore, Mr. Embry argues that the response by Mr. Goodfellow should not be considered to be spontaneous as the Crown had argued in her written submissions.

76Mr. Embry referred the Court to the portion of Exhibit 3B where D.C. Kent provided Mr. Goodfellow with his s. 10(b) Charter rights to counsel, and even after he exercised his right to speak to counsel or indicated that he wished to exercise that right, D.C. Kent continued to question him.

77Mr. Embry submits that there are continuous and multiple s. 10(b) Charter breaches contained within the evidence of D.C. Kent and contained within the incontrovertible evidence of the Exhibit 3A and 3B audiotaped interviews that she conducted with the accused. He points out to the Court that there is no further incriminating utterance made by Mr. Goodfellow after he was provided with his s. 10(b) right to counsel on a second occasion.

The Section 24(2) Issue

78Assuming that the Court does find a s. 10(b) breach, Mr. Embry argued that, after the appropriate analysis in accordance with the principles enunciated by R. v. Grant, 2009 SCC 32, the Court should find, and Mr. Embry agrees, that the societal interest in having a charge under s. 164 of the Criminal Code prosecuted on its merits is indeed significant.

79However, he also submits that the impact of the breach upon the accused should be considered to be serious. The breach occurred in the accused's home and that place has always been considered to be somewhat sacred to members of our society.

80On the third ground of the Grant analysis, Mr. Embry strenuously submits that the Court should find that D.C. Kent acted in bad faith and that almost alone should require the exclusion of any evidence seized as a result of the breach.

81His first point refers to the Information to Obtain the Search Warrant prepared by D.C. Kent in which she had intimated that it was possible that the victim of this child pornography could be a Canadian child and that there was absolutely no foundation for her to have stated that in the ITO.

82He submits that the multiple s. 10(b) breaches demonstrate bad faith throughout by D.C. Kent and that they are, therefore, inseparable from the issues surrounding the issuing and execution of the search warrant. He submits that the s. 24(2) analysis, assuming the Court found that the issuing of the search warrant breached the s. 8 Charter right of Mr. Goodfellow, must inform to some extent the s. 10(b) breaches.

83Specifically, Mr. Embry submits that D.C. Kent's use of audiotape when she conducted the interviews with Mr. Goodfellow reveals an obvious pre-planned attempt to obtain statements from Mr. Goodfellow and others whom she was questioning. He argues that the Court can but conclude from that action of D.C. Kent that she had planned to investigate and gather evidence relevant to a child pornography charge.

84Mr. Embry submits that D.C. Kent used her ITO to obtain the warrant, but when she arrived at the residence she did not actually search the house. He argues that it appears that she just wanted to "gather" evidence by taking statements from occupants.

85He also submits that the Court should find that even when she testified in court, D.C. Kent was rather transparent in her denial that she believed that she had a duty to give the s. 10(b) right to counsel to Mr. Goodfellow as the interview with him progressed.

86For all of these reasons, Mr. Embry argues that on a s. 24(2) analysis in conformity with the principles in R. v. Grant, supra, the physical evidence of the images that were located on the accused's computer and also all of his statements that he made to the police should be excluded. He argues that, on balance, the Court should find that D.C. Kent was acting on bad faith throughout with respect to her duty to not run roughshod over Mr. Goodfellow's Charter rights.

Position of the Crown on the s. 10(b) Charter Application

87Ms. Frew began by making a submission in response to one made by Mr. Embry. She argues that the reference to the potentially "Canadian" child victim was somewhat irrelevant in the ITO. She emphasizes that hearsay is permissible in an ITO and that there should be a presumption of impartiality and objectivity on the part of the issuing Justice of the Peace in the sense that it should be presumed that that judicial officer could overcome any potentially suggestive sensitivity or inflammatory nature of the reference to the term "Canadian". In other words, Ms. Frew was arguing that it should be presumed that the learned Justice of the Peace should be equally concerned with a potential victim of child pornography regardless of nationality.

88With respect to the s. 10(b) Charter argument by Mr. Embry, Ms. Frew submits that the initial questions that were asked by P.C. Buchanan upon entry into the home were permissible as preliminary questions necessary to orient the police in their execution of this search warrant of the residence that appeared to be occupied by numerous tenants from the information which they had at their disposal at the time. Ms. Frew submits that the Ontario Court of Appeal decision of R. v. Boca, 2012 ONCA 367, at para. 13 is an authority for this argument.

89The foundation facts for the s. 10(b) Charter challenge are set out in paras. 3, 4 and 5 of Boca:

[3] The following facts provide sufficient context for our decision. The police identified the internet protocol address of a computer sharing child pornography files. After determining the municipal address for the computer's location they obtained a search warrant for the residence at this address. Upon entering the basement of the house, the police found three bedrooms that were rented out by the owner. The appellant was seated on a couch in the common area of the basement. Another man, Todd Blunt, emerged from his room. The third tenant was not at home.

[4] The police spoke to the two men and showed them the warrant. The appellant submits that at this point he was detained. The appellant identified his bedroom. This is the first statement the admissibility of which is challenged.

[5] The police determined that there was a computer in the common area and another in the appellant's bedroom. At this point neither man had been given the right to counsel.

90At para. 13 the Court stated:

In our opinion the trial judge did not err in admitting the first and third statements. In relation to the first statement, in the context of executing a search warrant for child pornography at a residence occupied by numerous tenants, the police were entitled to ask some preliminary questions to determine how to proceed. The appellant's identification of his room arose during this preliminary stage. He was neither physically detained nor subjected to any coercive demand or direction. As a result, the appellant's right to counsel under s. 10(b) was not infringed.

91Ms. Frew then specifically informed the Court that the Crown would not be seeking to introduce any statements following the arrest of Mr. Goodfellow and the caution given to him and the Court would not have to rule with respect to an alleged s. 10(b) Charter breach on that portion of the interviews. She referred the Court to Exhibits 2 and 3B and indicated that the Crown's position as stated would begin on page 7 of Exhibit 3B where the Crown had drawn a line. This was immediately after D.C. Kent had said to the accused after his arrest and caution, "I want you to speak to me. I want it to, if you want to do that, it's going to be voluntary, okay? So do you understand that?" The accused answered "yeah" to that question.

92It is at this point in the interview that the Crown has abandoned any attempt to introduce any further utterances of the accused in response to questions asked by D.C. Kent. For reference only, the first comment by D.C. Kent after the accused's response was, "Okay. Um we are gonna continue to search your room specifically, okay?" and the accused said "okay."

93The Crown argues that the method used by D.C. Kent to record the interviews that she was conducting which, the Crown argues, were permissible as preliminary interviews, would be totally normal and make common sense with so many people to be interviewed. She disagrees with Mr. Embry's characterization of the use of the tape recorder as evidence of a pre-planned intent to take inculpatory statements from anybody from whom she could. Ms. Frew refers the Court to the fact that the officers were in plainly and obviously marked police uniforms with vests so that there could certainly be no confusion on the part of the occupants of the home as to the fact that they were being interviewed by police.

94Ms. Frew submits that the Court, after listening carefully to the Exhibit 2 CD recording of the initial interview, should conclude that the conversation between P.C. Buchanan and indeed D.C. Kent and the accused was cordial and that there was no s. 10(b) Charter breach during this portion of the preliminary questions. Ms. Frew also submits that there is no onus upon the police to advise the accused that he could leave at any time and she refers to R. v. Suberu, 2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, as her authority for that point. Ms. Frew reminds the Court that the onus is on the applicant to demonstrate that in the circumstances he or she was effectively deprived of "his or her liberty of choice." [See para. 7 Crown written submissions]

95Ms. Frew submits that there is no reason for D.C. Kent or any other police officer at the time to suspect that Mr. Goodfellow was in possession of child pornography at the time when they entered the house any more than they would suspect any other occupant or resident at the same house.

96The Crown strongly disagrees with Mr. Embry's argument that the evidence should suggest to the Court that D.C. Kent was acting in bad faith. As an example of her good faith, the Crown submits that the Court should look favourably upon the evidence that indicates that after Mr. Goodfellow told her that the youngest person on his computer was 18 years old she then engaged in a legitimate attempt to try to ensure that he understood the distinction between adult and child pornography. The Crown refers the Court to Mr. Goodfellow's statement made to the officer that his understanding was that child pornography was indeed under the age of 18. Specifically Ms. Frew refers the Court to Exhibit 3A at page 10 and 11 for support of that point.

97The Crown argues that after D.C. Kent explained to him the difference between adult pornography and child pornography she then showed him the single photograph that she had in her possession which, of course, was the child pornography photo which the Halton Regional Police had received from the RCMP National Child Exploitation Coordination Centre (NCECC) to illustrate the point.

98The Crown submits that since there were a lot of computers in that residence D.C. Kent had to try to sift them out in order to decide how to proceed with her investigation.

99The Crown submits that the officer's reaction to the accused's comment "I doubt it" when he was asked if his computer would have any child pornography on it, to which the officer said that she would be certain if it was her computer that there would be no child pornography on it, just makes common sense as a comment.

100Ms. Frew did concede that the accused's incriminating statement followed the questions asked by D.C. Kent that are contained on the first audio interview, but she also submits that the comment was not in response to a direct question after the audio machine had been turned off. She submits that the accused must have realized by that time that the police were busily scouring all of the computers in the house and yet he still, the Crown submits, voluntarily offered his utterance which, objectively speaking, was incriminating.

The Section 24(2) Exclusion Issue

101The Crown, of course having to assume for the purposes of the 24(2) argument that the Court would find that there had been a s. 10(b) breach of Mr. Goodfellow's Charter rights, argues that the statement-taking procedure conducted by D.C. Kent during the execution of the search warrant was not necessarily done just for the exclusive purpose of attempting to collect incriminating information from people in the residence.

102The Crown submits that it should be obvious that the police were simply trying to narrow the search with so many people involved and so many computers and that the common law does permit a certain amount of this type of preliminary questioning in order to focus the investigation or the search. In sum, the Crown submits that there was no bad faith on the part of the police when the Court considers the totality of the evidence.

Crown's Supplementary Oral Submission on the Section 8 Search Warrant 24(2) Issue

103Ms. Frew submits that if the Court does find that there was a breach of Mr. Goodfellow's s. 8 rights by the issuing of the search warrant, then the Court should remember that the images are real evidence and that there is a high societal interest in prosecuting child pornography on the merits when the Court is considering whether or not to exclude the evidence pursuant to a s. 24(2) analysis.

104In reply, Mr. Embry submits that the Crown is incorrect in arguing that D.C. Kent should be allowed to question Mr. Goodfellow until she was successful in obtaining reasonable and probable grounds for his arrest. He also relied on R. v. Suberu, supra, and for that argument he referred the Court to paras. 40 and 41.

105Mr. Embry submits that the fact that there were no s. 10(b) rights to counsel read or provided to Mr. Goodfellow until D.C. Kent obtained what she felt were her reasonable and probable grounds for his arrest while he remained in detention throughout that questioning was a clear violation of his s. 8 and s. 10(b) Charter rights. He also submits that when D.C. Kent recapped for the accused his first utterance on the tape before giving him his rights to counsel she had violated his s. 10(b) rights.

Analysis

The Section 8 Charter Breach Analysis

106I find the following factors to be integral to an analysis of whether or not the ITO of D.C. Kent contained sufficient reliable information for the learned Justice of the Peace to have found that he had reasonable grounds to believe that the items detailed in Appendix "A" of the ITO would be currently in the residence of 798 Syer Drive, Milton, Ontario and that they would afford evidence of an offence having been committed on May 20, 2011 by a person or persons unknown of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code of Canada:

The gap of 13 months between the information provided to the Halton Regional Police that a file containing child pornography was downloaded onto a "computer" at or near 798 Syer Drive, Milton, on May 20, 2011. That information was received on June 13, 2012.

Overstatement of continuity of residents: I agree with Mr. Embry's argument in paras. 17 and 18 of his written submissions that although D.C. Kent stated in para. 17 of her ITO that "I understand that the offence occurred approximately 13 months ago, however, the occupants of 798 Syer Drive, Milton, appear unchanged", this appears to be a significant overstatement of the information available to her at the time of her creation of the ITO.

Lack of evidence regarding residents in May 2011: The evidence supports Mr. Embry's submission that, with the exception of Wilma Stutt, there was no evidence as to the identity of the residents at 798 Syer Drive on May 20, 2011. I agree with Mr. Embry's submission that D.C. Kent only had information from the MTO with respect to the driver's licence of Mr. Goodfellow and a Jacob Raspa to indicate that they were residing at 798 Syer Drive as of June 13, 2012. There was, however, no information available to D.C. Kent as to their residence in May 2011.

Exaggeration in category "E": I find that D.C. Kent's statement in para. 7 in category "E" of her ITO, to wit: "Grounds to Believe an Offence against this Act has been Committed", is an exaggeration when she states that she believes that evidence pertaining to the offences of accessing child pornography "will be found" at 798 Syer Drive, Milton, Ontario as of June 2012. Stated that starkly, I find that such information only provided the learned Justice of the Peace with suspicion about evidence being presently able to be found in June 2012 in that address.

However, I am mindful of the fact that the learned Justice of the Peace must be presumed to have reviewed the ITO paragraphs in the context of the totality of the information provided by D.C. Kent and not in isolation.

Exaggeration in category "F": I, therefore, now turn to category "F" of the ITO, to wit: "Grounds to Believe the Things to be Seized will Afford Evidence of the Offence". I find that D.C. Kent in paras. 2 and 3 of that category of her ITO again engaged in embellishment by stating that she believed that a forensic examination of computers found at that address "will afford" as opposed to "may afford" evidence that the offence of accessing child pornography had been committed. I also find that she engaged in embellishment when she stated in para. 3 that she believed that a forensic examination of computers found at this location "will afford" as opposed to "may afford" evidence that a member of the household "has been or is currently accessing" child pornography on the internet.

Critical issues in category "G": Category "G" of the ITO, to wit: "Grounds to Believe the Things Sought are Presently at the Place to be Searched". I find that the contents of some of the paragraphs within this category in D.C. Kent's ITO are virtually by themselves determinative of this s. 8 Charter application by the defence.

At para. 6 of category "G" in the ITO D.C. Kent states:

I have consulted with Detective Constable Kevin Harvey, a police officer with the Halton Regional Police Technological Crime Unit and I know that although a person may delete information from a computer, evidence of the information may remain on the hard drive of the computer in what is referred to as "unallocated space". This information will remain on the hard drive until the information is "written over" by the computer.

At paras. 12 and 13, D.C. Kent stated:

12. It has been my experience, through training and investigating offences against children, that individuals who download and/or collect child pornography files typically retain such files in their possession for long periods of time, often in multiple (including duplicate) storage capacities. It some cases their collection is considered their most prized possession and they will not likely part with it.

13. Based on the definition of a computer provided above and my knowledge of computer hardware, I reasonably believe that the suspect in this matter may store child pornography in various capacities including but not limited to:

13.1 Electronic devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic computer impulses or data. These devices include computers, computer components, computer peripherals, modems, monitors, printers, encryption circuit boards, optical scanners, external and internal hard drives, USB flash drives, other computer related electronic devices.

13.2 Any information and/or data stored in the form of magnetic or electronic coding on computer media or on media capable of being read by a computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disks, cartridges, tapes, laser disks, CDs, DVDs and any other media which is capable of storing magnetic coding.

13.3 Any photographs, digital images, videos, computerised graphic files, printed material, computer images or files made by electronic or mechanical means which are located on the premises which show a person who is or depicted as being under the age of eighteen years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.

Application of Morelli principles: With respect to her reference to Detective Constable Kevin Harvey, in para. 6, I have considered the statements of Mr. Justice Fish in R. v. Morelli, supra, in paras. 73 and 75:

[73] The main difficulty with these generalizations about certain "types of offenders" is that they are entirely devoid of meaningful factual support. The ITO contains no evidentiary material in this regard, even anecdotal, apart from the bald assertion of the two police officers. Furthermore, there is virtually nothing to describe, let alone establish, the expertise of the officers to whom the claims are attributed. The only information provided in the ITO consists in the officers' names, positions, and places of work. This is surely an insufficient evidentiary basis to enable a justice of the peace, hearing an application ex parte, to determine that the generalization is sufficiently credible or reliable to form the basis for a finding of reasonable and probable grounds.

[75] The evidence presented at the voir dire with respect to Cpl. Boyce's statements is more problematic still. Cst. Ochitwa testified that he approached Cpl. Boyce in order to obtain information about "how computers operate" because "[Cpl. Boyce] was involved with the term [sic] technological crime". Cpl. Boyce thus appears to have been sought out as an expert on computer technology, not the habits of child pornography offenders. While Cst. Ochitwa was aware that Cpl. Boyce worked in the Technological Crime Unit and knew what his duties were there — investigating crimes involving computers — there is no indication at all whether or how his work in that unit formed the basis for his opinions about child pornography offenders (Testimony of Cst. Ochitwa, A.R., at pp. 157-58 and 191-92).

Problematic generalizations: Most importantly, in my opinion, D.C. Kent's para. 12 in category "G", in the absence of information for the learned Justice of the Peace with respect to D.C. Kent's specific training in the field of child pornography and the habits of offenders, must be characterized objectively as broad generalizations about loosely defined classes of people and as an invitation to invite dependence on stereotypes and prejudices in lieu of evidence. (See para. 79, Morelli, supra, Fish J.)

Insufficient grounds for para. 13: I find that para. 12 would not provide the learned Justice of the Peace with any reasonable grounds upon which to rely to believe what D.C. Kent next stated in para. 13 of her ITO which I have set out verbatim supra.

Specifically, I find that D.C. Kent's paras. 12 and 13 are exactly what Mr. Justice Fish in R. v. Morelli, supra, proscribed in paras. 76 through 82, supra.

In addition, I find the reference by Mr. Justice Fish in Morelli in para. 83 to be instructive:

As Borins J.A., speaking for the majority of the Ontario Court of Appeal, explained in Fawthrop (at para. 42):

In my view, the trial judge's finding, based on the testimony of Det. Const. Pulkki, that the police were engaged in a "fishing expedition" for items of child pornography leads to the conclusion that the breach of the appellant's s. 8 Charter rights was serious. It appears from the record that after she interviewed A.Y. and members of her family, Det. Const. Pulkki suspected that the appellant was a pedophile, which led her to further suspect that he might possess items of child pornography. To be fair to her, she realized that her suspicion was insufficient to enable her to obtain a warrant. She was aware that it was necessary that she have reasonable grounds to believe that child pornography would be located in the appellant's home. She sought the opinion of Dr. Collins in the hope that it would tip the scales from suspicion to reasonable grounds. As the trial judge recognized, the opinion of Dr. Collins failed to do so. He recognized the fatal flaw in the opinion. Although Dr. Collins opined that it was not uncommon for pedophiles to collect items of child pornography, he was unable to form an opinion as to whether the appellant was a pedophile. Without that link, Det. Const. Pulkki was in the same position as she had been before she contacted Dr. Collins. All she had was a suspicion that the appellant might be in possession of child pornography. . . . This resulted in an unauthorized search for those items by means of what the trial judge correctly labelled a "fishing expedition". This is what the search warrant process is meant to prevent.

In the result, the evidence seized under the warrant was excluded pursuant to s. 24(2) of the Charter.

Single image versus multiple images: The fact that there was only one image reported to the HRPS in this case allegedly accessed 13 months earlier as opposed to the multiple images found in the Stemberger case, supra, and also in some of the other precedents relied upon by counsel. Most certainly, a large number of images would better support a reasonable belief that the individual accessing that number of images might be more likely to have downloaded some or all of them and saved them for future use as opposed to evidence of only one isolated image at an isolated time being accessed.

107In conclusion, I find that the ITO of D.C. Kent considered in its full context and in its totality of information provided to the learned Justice of the Peace could only provide at best suspicion and at worst mere speculation that a search of the subject residence in June of 2012 would bear fruit with respect to the present existence of evidence to support a charge contrary to s. 164(4.1) of the Criminal Code. Indeed, I would liken this ITO to inviting a fishing expedition. I, therefore, find that the issuing of this search warrant resulted in a breach of Mr. Goodfellow's s. 8 Charter right to be free from unreasonable search and seizure.

The Section 24(2) Exclusion Analysis

108I have carefully considered the three-pronged test in R. v. Grant, supra. I am mindful of the fact that the applicant bears the burden on a balance of probabilities of establishing that the physical evidence that was obtained as a result of this search warrant ought to be excluded from the trial.

109I have informed my analysis by consideration of para. 102 of R. v. Morelli, supra:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

110On the first arm of the Grant test, which is to decide the seriousness of the Charter-infringing State conduct, my analysis has been significantly informed by what I have found and illustrated above to have been significant embellishment by D.C. Kent of her own knowledge, experience and qualifications to give what amounted to expert opinion information to the learned Justice of the Peace with respect to the likelihood of the single pornographic image that was detected as being downloaded by a computer in the subject residence some 13 months earlier. I find that such information provided to the Justice of the Peace, objectively viewed, would be very likely to have mislead that person into arriving at a conclusion that there would be reasonable and probable grounds to believe that a search of the residence after the issuing of the search warrant 13 months later would be likely to produce evidence relevant to that image instead of simply arriving at a conclusion that the totality of the information provided by D.C. Kent should only have aroused suspicion on the part of the Justice of the Peace. In the words of the Supreme Court of Canada in Morelli, supra, I find that D.C. Kent did not take care not to otherwise exaggerate the information upon which she relied to establish reasonable and probable grounds for the issuance of the search warrant.

111I have, of course, also considered the fact that the issuing of an execution of this search warrant resulted in a breach of Mr. Goodfellow's right to privacy in his own personal residence and with respect to his own personal computer. Mr. Justice Fish in Morelli at para. 105, supra, stated that "it would be difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer."

112With respect to the second arm of the Grant test for exclusion or inclusion of evidence following a Charter breach pursuant to s. 24(2), I have considered the impact of the breach of Mr. Goodfellow's s. 8 right to a reasonable expectation of privacy in his own home and in his own personal computer.

113I find that the impact upon those rights of Mr. Goodfellow was anything but fleeting or technical. I find that it was a serious and, to some extent, profoundly intrusive breach of his right especially when considered in the context of what I will be detailing below in my analysis of the s. 10(b) application was a corollary breach of Mr. Goodfellow's s. 10(b) right to be informed of his right to speak to a lawyer before deciding whether or not to answer the questions of D.C. Kent and, for that matter, to decide whether or not he wished to maintain his right to silence with the officer.

114In my view, this second step factor in the Grant analysis favours exclusion of the evidence seized as a result of the execution of the search warrant.

115For these reasons, I, therefore, conclude that this particular s. 8 breach must be considered to be a significant and serious breach of Mr. Goodfellow's privacy-protected rights.

116With respect to the very important consideration, often referred to as the third factor in a Grant analysis, which is that the Court must carefully consider the extent of society's interest in having a case decided on its merits and the particular facts of the particular case in question, I have carefully considered the fact that the exclusion of the evidence obtained by the search warrant in this case would leave the prosecution with basically no case against Mr. Goodfellow regardless of the outcome of the s. 10(b) application.

117As was stated in Grant, supra, and also in Morelli, supra, such a finding by this Court would seriously undermine the truth-seeking function of this criminal trial and this must be considered as a factor weighing against exclusion of the evidence.

118However, as Mr. Justice Fish observed in Morelli, supra, the trial court is required to bear in mind the long-term and prospective repute of the administration of justice focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally-protected rights of the accused. (See para. 108, Morelli, supra)

119In paras. 109 through 111, Mr. Justice Fish offered the following observations of the approach to be taken to a s. 24(2) exclusion analysis:

[109] In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued.

[110] Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

120For all of these reasons, I find that the defendant/applicant has satisfied me on a balance of probabilities that the physical evidence which was obtained as a result of the specific s. 8 breach of his Charter right in this case would tend to bring the administration of justice into disrepute and therefore ought to be excluded from the body of trial evidence. Thus, I hereby grant the s. 24(2) application and exclude that evidence.

The Section 10(b) Application

Analysis

121I agree with the Crown that there is no onus on P.C. Buchanan to specifically proactively inform Mr. Goodfellow upon his entry into the house that he had the right to immediately leave the house if he did not wish to remain in the obvious presence of uniformed police officers. However, in my view, importantly, I do agree with Mr. Embry for the defence that Mr. Goodfellow was definitely detained by P.C. Buchanan and the Halton Regional Police in general who were executing the search warrant when he was told by P.C. Buchanan to sit in the living room and wait for D.C. Kent to speak to him.

122While I also agree with the Crown and find that the Crown accurately relied upon the authority of R. v. Boca, supra, for her submission that the police are allowed to ask a certain number of preliminary questions in order to try to get organized in an investigation that involves the execution of a search warrant in a residence with multiple occupants, I nevertheless find, and in so doing I agree with Mr. Embry, that a careful perusal of both the audiotapes and the transcripts of them of the question-and-answer sessions between D.C. Kent and Mr. Goodfellow that took place before his inculpatory utterance, reveal that the officer was asking probatively probing questions designed to further her investigation into an attempt to determine whether or not Mr. Goodfellow was guilty of an offence under s. 164 of the Criminal Code. In my view, her questions went far beyond what should be considered to be permissible preliminary questions to assist the officer in determining how to proceed. In my view, it is also important to note that in para. 13 of the Boca decision, the Ontario Court of Appeal stated:

In the context of executing a search warrant for child pornography at a residence occupied by numerous tenants, the police were entitled to ask some preliminary questions to determine how to proceed. The appellant's identification of his room arose during this preliminary stage. He was neither physically detained nor subjected to any coercive demand or direction. As a result, the appellant's right to counsel under s. 10(b) was not infringed.

123In this case at bar, of course Mr. Goodfellow was detained at the point where D.C. Kent began to question him, and her questions far exceeded an attempt by her to learn the location of his bedroom in the home.

124With respect to whether or not the use of a tape recorder by D.C. Kent when questioning Mr. Goodfellow should result in the Court finding, as the defence argues, that she had embarked upon a pre-meditated investigation, including an attempt to obtain incriminating statements and record them for posterity from Mr. Goodfellow, I am ambivalent with respect to the argument of the Crown and the defence on that point.

125Quite frankly, I do not feel that it is necessary for my final conclusion on this s. 10(b) application to decide whether or not the use of the tape recorder had the sinister type of investigative premeditation argued by Mr. Embry or whether it was simply, as argued by the Crown, something that made common sense when taking information from a number of different people in the residence. By that I mean to say that if the officer had simply asked what the Courts have considered to be the permissible organizational questions of the occupants, including Mr. Goodfellow, before deciding whether or not any s. 10(b) rights should be given to them and before deciding how to proceed with the execution of the search warrant, then the use of the tape recorder would be, in my view, quite benign and would certainly make common sense.

126With or without the tape recorder, I find that the questioning of Mr. Goodfellow by D.C. Kent was investigative in nature and specifically investigative with respect to him, and that the officer was attempting to gather information from him which might well result in an inculpatory admission. While preserving such answers on an audio recording device might provide more comfort to an investigating officer and certainly contribute to the accuracy of the officer's evidence in court about the subject matter, nevertheless, without the tape recorder, a police officer could certainly testify with the aid of notes made shortly thereafter with respect to the alleged utterance or utterances of a subject being investigated.

127With great respect to Ms. Frew, although I agree with her submission that the auditing of the exhibit recordings of the conversation between P.C. Buchanan, D.C. Kent and the accused could well be described as cordial, I find that that does not mitigate or eliminate the investigative nature of the questioning which I have already found was the nature of that questioning specific to the accused. This is not a voluntariness voir dire to determine whether or not the accused's willingness to engage in the conversation was not tainted by threats, inducements or promises of favour by the officers.

128Again, with respect to the Crown, I do not find the Crown's submission that the inculpatory utterance made by Mr. Goodfellow immediately after the conclusion of the second audiotaped questioning period could possibly be considered to have been made voluntarily as opposed to being in direct response to the totality of the question-and-answer sessions which had preceded the utterance.

129I agree with Mr. Embry, and I find that the accused has satisfied me on the required balance of probability standard, that this utterance was made in response to D.C. Kent's final questions when she had asked him if there was anything else that he could give her at that point and that that was the time to do it if, indeed, he had any further information.

130In my view, objectively assessed, that wording employed by D.C. Kent could hardly be described as a type of phrasing of a statement that would be likely to elicit a spontaneous utterance by the recipient. In my view, there is a clear and logical nexus between the statement which was made at the end of a series of probing questions and the utterance of the accused that immediately followed thereafter.

131For these reasons, I am satisfied that Mr. Goodfellow has established on a balance of probabilities that his s. 10(b) right to counsel was breached by both the totality and also by the context of the questioning of D.C. Kent before his presumptively inculpatory utterance which was made, of course, before he was provided with his s. 10(b) right to counsel.

132I also agree with Mr. Embry that it is of some interest to note that even after that utterance D.C. Kent continued to question Mr. Goodfellow even after she provided him with his s. 10(b) right to counsel and after he had indicated that he desired to speak to a lawyer. This would seem to further the defence argument that the officer was certainly intending to collect as much incriminating information as she could during her investigation of Mr. Goodfellow as opposed to simply engaging in what she described as preliminary questions before conducting the search of the residence.

The Section 24(2) Issue

The Grant Analysis

133With respect to the first arm of the Grant analysis, which is the seriousness of the Charter-infringing State conduct, I find that D.C. Kent's conduct after entering the home and deciding to question Mr. Goodfellow beyond the permissible preliminary questions considered by the common law to be appropriate, did not result in a trivial, technical, inadvertent or understandable minor violation of Mr. Goodfellow's s. 10(b) rights.

134I have considered the state of the common law as of the date when D.C. Kent was engaging in her questioning of Mr. Goodfellow and I find that she was certainly an officer of sufficient experience to be aware of the state of the common law on the duty of police officers to provide s. 10(b) rights to counsel to a subject being investigated. I also find that this s. 10(b) standard was very well developed by that time and I find that D.C. Kent should definitely have been very much aware of the burden upon an officer to provide the informational component of 10(b) in these circumstances.

135I most certainly find that there were no extenuating circumstances requiring the need of the officer to question Mr. Goodfellow without giving him his rights to counsel, such as the likelihood of the disappearance or dissipation of potential evidence. If the evidence had not disappeared or dissipated in the 13 months preceding the date of the entry into this subject house by the police pursuant to the exercising of the search warrant, I hardly think that there was going to be an opportunity for it to disappear or be dissipated once the police had entered the home and had taken control, so to speak, of the occupants.

136I agree with Mr. Embry that the undisputed evidence that D.C. Kent never really engaged in a search of the house when she first entered it pursuant to the search warrant, but, rather, simply seemed to concentrate on trying to elicit information verbally from Mr. Goodfellow and potentially other occupants tends to support the submission by Mr. Embry that she was on a mission to "gather" evidence by taking statements from the occupants. This would also support his submission, in my view, that this was a pre-meditated plan, although, as I said earlier, I am not prepared to make a positive ruling on that ingredient of the defence argument.

137I agree with Mr. Embry that D.C. Kent's denial that she believed that she had a duty to provide Mr. Goodfellow his s. 10(b) rights to counsel as the interview progressed does not have an air of reality to it given the nature of the questions that she was asking, viewed objectively, and her level of experience as an investigating officer at that time, and her presumed awareness of the state of the common law with respect to s. 10(b) rights.

138I agree with Mr. Embry that P.C. Kent's questioning resulted in multiple breaches of Mr. Goodfellow's s. 10(b) right, even to the extent that she asked him to recap his inculpatory utterance that he made after the conclusion of the second round of questions before she gave him his rights to counsel.

139In the result, I conclude that the significance of the seriousness of the breach favours exclusion of the evidence.

140With respect to the second arm of the Grant analysis, that being the impact on the accused's Charter-protected interests, obviously the right to speak to counsel before answering questions of the police is one of the most important rights provided by the Charter and I have already found that the breaches by D.C. Kent were not technical or fleeting, and I do find that in the totality of the context of them, they were serious breaches of the s. 10(b) rights of Mr. Goodfellow.

141I therefore feel that this factor favours the exclusion of the evidence.

142With respect to the very important third arm of the Grant analysis, which is society's interest in an adjudication of the case on its merits, I find that it is obvious and important to state that society has a very heightened interest in the prosecution of alleged child pornography charges on their merits. It is certainly one of the most sensitive concerns in our organized society today.

143On the question of whether or not the exclusion of utterances made by Mr. Goodfellow would in and of themselves "gut" the prosecution's case on this charge, I would have to say that it would not. If the search warrant had been properly obtained, issued and executed, then whether or not the utterances made by Mr. Goodfellow were admissible would not have prevented the Crown from tendering the physical evidence that was found as a result of the search of his computer. It remains to be seen, however, how far that would have taken the Crown in the ultimate prosecution of this charge, but that is not my task here.

144One consideration on this arm of the Grant analysis is to consider how serious is the offence itself. I repeat that any alleged offence of child pornography is serious, but in the family of offences dealing with child pornography, a single image accessed some 13 months earlier by some computer in this residence could hardly be considered to be the most egregious form of allegation of this particular section of the Criminal Code.

145In conclusion, I find that this particular factor favours the exclusion of the evidence and, in particular, when the statements of Mr. Justice Fish are considered.

146For these reasons, I find that the defendant applicant has satisfied the Court on the required balance of probabilities that his utterances which were made to D.C. Kent which occurred during a breach of his s. 10(b) right should be excluded from the body of evidence on this trial pursuant to s. 24(2) of the Charter.

Released: October 28, 2014

Signed: "Justice F.L. FORSYTH"