ONTARIO COURT OF JUSTICE DATE: 2021 04 15 COURT FILE No.: Halton 19-1137
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RYAN PATTERSON
Before: Justice A. Calsavara
Heard on: April 1st, 2021 Ruling on Section 8 Voir Dire: April 15th, 2021
Counsel: Harutyun Apel..................................................................................... counsel for the Crown Edmund Chan................................................... counsel for the accused Ryan Patterson
CALSAVARA J.:
INTRODUCTION
[1] Ryan Patterson is charged with two counts of possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The Crown proceeded by Indictment. Mr. Patterson elected to have his trial in the Ontario Court of Justice. The defendant has brought a pre-trial application under s. 8 of the Canadian Charter of Rights and Freedoms seeking to quash the search warrant issued for 303 McNabb Crescent in Milton for March 27, 2019 between the hours of 6am to 9pm.
BACKGROUND AND CONTENT OF THE ITO
[2] The Halton Regional Police received a tip from the National Child Exploitation Coordination Centre (NCECC) that a user of a smartphone messenger application, named KIK, uploaded an image containing child pornography. The NCECC provided the exact date and time of the upload (January 7th, 2019 at 21:43:01 UTC), the IP address, user name attached to the KIK account and an email address attached to the KIK account. The package included the image alleged to be child pornography.
[3] Halton Police received this tip about six weeks after the upload occurred and quickly acted on it, including independently reviewing the image to confirm it fit within the definition of child pornography and determined who the ISP was of the IP address in question. Within a few days, the investigating officer obtained a Production Order for the subscriber of the IP address at issue.
[4] The IP address—at the time of the upload—belonged to Ryan Patterson, 303 McNabb Cres. A specific phone number and email address ( XXXXXXXX.com [1] ) was registered along with the subscriber’s name and address. According to the Information to Obtain (ITO), a Ministry of Transportation check of Raymond Patterson with an address of 303 McNabb Crescent, Milton, “validated a driver’s licence owing to that name and residence. It indicated the date of birth of the party as XXXXXX [2] ”. Parenthetically, I note that this is not likely to be the defendant. According to the Information setting out his charges, the defendant was born in 1996. The affiant did not give any date parameters as to when or what period of time this Ryan Patterson’s driver’s licence came back to this address. The affiant also did not indicate the date she performed this query. It can be inferred, however, when reading the ITO as a whole that she preformed this query sometime between March 5th, 2019—when she submitted the Production Order—and March 21, 2019, which is the day the affiant applied for the Search Warrant.
[5] The warrant authorized the search between 6am and 9pm on March 27th, 2019.
[6] No further queries were outlined in the ITO. There was no evidence of any open source searches either on the subscriber’s name or on the email address used to create the impugned KIK account – which parenthetically I note is not the same email address on file for this subscriber with the ISP. There were no queries made directly of KIK—which was at the time a company based in Ontario—as to whether they had any further records pertaining to this KIK account at issue, which according to the tip they passed on through to NCECC, had a user name of “wizardhaxoyeah” with an email address of “annesmailbox@gmail.com.”
[7] The ITO was silent as to whether or not the affiant made further queries of this 303 McNabb address in any police data banks or open source in order to determine who might live at or be connected to 303 McNabb Crescent. The police did not attend the location prior to applying for the warrant to get a visual of the location, confirm the existence of a secure Wi-Fi network or determine if this location appeared to be occupied – or if there were vehicles at the location. In fact, there is no description of the address supplied in the 487 application other than its identification as a dwelling house on the face of the Form 5 Search Warrant and Form 1 ITO.
[8] KIK is defined in the ITO as “a smartphone messenger application that lets users connect with their friends the world around them through chat. Users can send text, pictures, videos and more all within the application. KIK is free to download and uses an existing Wi-Fi connection or data plan to send and receive messages. KIK Interactive is located in Ontario, Canada and as such is governed by Canadian law.”
[9] The affiant then goes on to describe KIKs internal hash matching system with a database of known child exploitation image hash values and how this system identifies such images sent in its application. Upon this identification, the user account is banned and it is reported to the NCECC.
[10] Other than being described as a smartphone messenger application, no other information is supplied in the ITO as to whether or not this application can be used by other devices or computer systems. Similarly, the ITO is silent on whether evidence of this upload on a KIK account from a smartphone using this IP address would be gleaned from other computer systems or the router inside this home or even theorize how that could be. In other words, if the affiant was drawing an inference about other computer systems in the home probably evincing—in even a small fashion—the impugned upload based upon her knowledge of the workings of the KIK application or on everyday common sense in reaching her conclusions, she did not explain what they were in the ITO.
[11] The listed items to be search was detailed in Appendix A:
Item 1 Any computer system, as defined by 342.1(2) of the Criminal Code, capable of accessing the internet. Including, but not limited to, desktop computers, laptops, netbook computers and cell phones. Including all auxiliary items necessary for the proper operation of the system; including, but not limited to, cables, power adaptors, modems, routers, software and operation manuals.
Item 2 Any data storage device or media capable of holding data, as defined by 342.1(2) of the Criminal Code; including, but not limited to, DVDs, CDs, hard-drives, and memory sticks.
Item 3 Any written memory aids containing computer passwords, including, but not limited to, memos, sticky notes, address books and notepads.
Item 4 Any documentation pertaining to the occupants of the location to be searched that will assist in proving their occupation of the location and control of the computer equipment located therein. Including, but not limited to, rental agreements, utility bills and mail.
[12] I will not repeat them at length here, but appropriate terms and conditions were attached to the search of these items once seized. They required that examination be restricted to search of data related to child pornography, the user of the KIK account or email, the IP address, or the subscriber’s email address on file with the ISP; or data that might show who had been using such devices.
[13] On consent of the Crown, the applicant, Mr. Patterson, cross examined the affiant of the ITO submitted in support of this warrant. However, the applicant’s attack on the validity of the warrant is a facial one. Nothing emerged from the cross-examination to suggest any fraud, misleading disclosure, or material non-disclosure in obtaining the authorization or other deficiency in support of the grounds that would otherwise not be apparent from the face of the warrant and its supporting material.
ISSUES RAISED BY THE APPLICANT
[14] The defendant raised three deficiencies with the ITO:
(i) The affiant’s grounds do not support the belief that the expansive list of items to be searched in Appendix A to the Form 5 will afford evidence of the offence. He argues the warrant is overbroad. (ii) Lack of grounds to believe that the items sought will be at the location to be searched. (iii) That the affiant did not corroborate the tip received from the NCECC
However, with respect to this last point, I see it as another way of expressing the first two complaints: that is the grounds to believe that the items sought will be at the location or if so will afford evidence does not reach the ‘credibly based probability’ standard.
GOVERNING LEGAL PRINCIPLES
[15] To obtain a search warrant, the investigating agency must provide reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, p 168.
[16] A warrant is presumed to be valid. A party alleging that it is not bears the burden of proving otherwise. The test upon review of a search warrant is not whether the court would have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds existed to believe that an offence had been committed and that evidence of that offence would be found at the specified place: See R. v. Morelli, 2010 SCC 8 at para 40; R. v. Sadikov, 2014 ONCA 72 at para 83-83; R. v. Garofoli, [1990] 2 S.C.R. 1421, p 1452 and R. v. Araujo, 2000 SCC 65 at para 54.
[17] In reaching his/her grounds, the affiant is entitled to draw inferences provided they are reasonable and supported by the facts set out in the ITO. An issuing judicial officer—or one on review—is similarly entitled to draw such inferences.
[18] The reasonable grounds standard is equated with ‘credibly based probability’. Mere suspicion or a hypothesis falls short and would equate to a fishing expedition; however, the reasonable grounds standard is something less than a prima facie case and certainly does not require the cogent proof of either a balance of probabilities or proof beyond a reasonable doubt.
[19] It is also important to keep the purpose of s. 487(1) of the Criminal Code in mind, which is set out in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743:
22 The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out - that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose.
[20] In R. v. Cusick, 2019 ONCA 524, the Court at para 89-90 edified what this standard entails in its application for the search of child pornography based upon dated or stale information:
89 The fundamental point is that the assessment of reasonable grounds does not depend on mathematical notions of probability. Cst. MacDonald's inability to express the "chances", i.e. the odds, of finding artifacts on the appellant's computer does not mean that he lacked reasonable grounds. The standard is whether the authorizing justice of the peace, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched. The standard to be met is determined qualitatively by applying reason to the evidence, not quantitatively by attempting to apply notions based on the probability branch of mathematics. As Deschamps J. said in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 129: "[d]etermining whether evidence gives rise to a 'credibly-based probability' does not involve parsing the facts or assessing them mathematically " (emphasis added). She approved of the "non-technical, common sense approach" taken by Rehnquist J. in Illinois v. Gates, 462 U.S. 213 (1983).
90 It is essential, as this court said in R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 54, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549"that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not on mere suspicion." In determining whether there was a breach of the accused's constitutional right, the test is "whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant": R. v. Manders, 2007 ONCA 849, at para. 11.
With these principles in mind, for the reasons that follow, I have concluded that the warrant was not validly issued as there were insufficient grounds to support the belief that the listed items in Appendix A will afford evidence of the offence. The warrant is overbroad.
ANALYSIS
[21] Two and a half months prior to the sworn ITO, someone uploaded an image of child pornography to a KIK account. I disagree with the defendant’s principle suggestion that there is no evidence that this upload occurred at this municipal address. The affiant in the ITO made it clear based upon credible and reliable information from KIK delivered through the NCECC together with information from the ISP that someone possessed child pornography when he or she uploaded an image using ‘Ryan Patterson’s’ Wi-Fi at 303 McNabb Crescent.
[22] KIK, however, is a smartphone messenger application. Smartphones are highly portable. By the year 2019 it can be said most adolescents and adults carry one almost everywhere they go. It was simply one instance of an upload from a KIK user named ‘wizardhaxoyeah’ with an unverified email address of annesmailbox@gmailcom – neither of which have been connected to Ryan Patterson or any other occupant at 303 McNabb.
[23] Nothing in the ITO supports the theory that the KIK application can be used or accessed from a computer or other device which accesses the internet aside from a smartphone; nor does the ITO address how or why it could be expected that evidence of this offence—even on the most expansive sense in determining: What happened? Who did it? Is the conduct criminally culpable behaviour?—would be found in anything but potentially a smartphone.
[24] Standing alone, I do not accept the defendant’s staleness argument given the almost three month gap if the police where able to seize this device. Based on her experience and training the affiant explained why she believed evidence of past possession would be found. In the ITO, she stated:
I therefore believe that the items to be searched for, listed in Appendix A, will afford evidence of the offence in Appendix B as they may hold evidence such as who is the owner of Kik account with user name ‘ wizardhaxoyeah ’ and/or email address XXXXX.com [3] ’ ‘annesmailbox@gmail.com’. As well, it will show ownership and use of the device. I believe that if the offender has attempted to delete any evidence of the offence in Appendix B form their computer devices, evidence may still exist on the device, and that a forensic search of the device(s) will uncover this evidence.
[25] She goes on to explain that from information she has received from trained officers with Halton Police technological crimes unit, that forensic examination of devices can in many cases recover data that has been deleted.
[26] The affiant, however, never addresses why she believes the other computer equipment and devices other than smarthphones will afford evidence. The only paragraph which the Crown pointed out in the ITO as addressing this overbreadth argument is:
I know that digital data can be easily downloaded and transferred onto multiple external storage devices. Information that was originally created on a computer system may have also been transferred and saved onto an external storage device(s). Thus these devices may be required to fully analyze information created by the computer system.
[27] The general language included with this clause, in my view, does not bridge the gap. The ‘computer system’ here she speaks of would be the smartphone used to upload one image of child pornography on one occasion. This clause can not base the inference that evidence relating to this upload will be on one of the non-smartphone computer devices at this residence at the time of execution on the credibly-based probability standard.
[28] Any other inferences or theories made by the affiant were left unsaid in the ITO. I have thought through a number of various possibilities – mindful that I am not to consider the ITO de novo or to consider whether I would have issued the warrant. Could the issuing judicial officer have done so? The issuing Court is permitted to draw reasonable inferences from the evidence in the ITO using common sense. Is the KIK application and its data something that is likely to be or capable of being backed up on a computer? In my view based upon the record it is speculative. Some applications can be. Would the router or other computer equipment in the home using that same Wi-Fi somehow show data relating to this upload? Without something more in the ITO addressing any of these or other scenarios there is no foundation for such inferences.
[29] During the hearing, the affiant testified that computers are capable of using the KIK application with the use of an emulator – which I took to mean some sort of software or device to make the application treat it as a smartphone. This was not included in the ITO. The Crown did not adduce this evidence and fairly conceded this evidence is beyond the scope of proper amplification. The proper forum for evidence of this nature is potentially under a s. 24(2) Charter analysis.
[30] The availability for the issuing justice to draw such inferences or accept the conclusion of the affiant that she believes these “items to be searched will afford evidence of the offence ….’ requires that they be based in evidence in the ITO. There is just too big of a gap. The affiant does not include her reasons for believing these items will afford evidence. The issuing justice must be capable of assessing the reasonableness of the belief of the affiant on the basis of the record.
[31] Based on this deficiency, I am persuaded that there were insufficient grounds in the ITO to support the issuance of the warrant allowing the seizure of all the items listed in Appendix A. In coming to this conclusion, I have considered the ITO as a whole and not just passages in isolation.
[32] Consequently, the warrant must be quashed.
[33] I had considered as an alternate to quashing the warrant whether the items to be searched for listed in Appendix A which offends the reasonable ground standard could be excised from the warrant; but decided it is better left to be addressed during a s. 24(2) hearing.
[34] Cases where courts have opted for severance over the quashing of the warrant are where there is a clear demarcation between the good and the bad and where the offending aspects did not bear fruit or where the Crown was not seeking to tender evidence from it: see R v Paterson (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd 1987 22 (SCC), [1987] 2 S.C.R. 291; and see as an example R. v Yabarow, 2019 ONSC 3669 at paragraph 30. The parties have only addressed the Garofoli hearing so far. I do not yet know what evidence was seized as a result – but this case does not seem to be one of those capable of a clear demarcation.
[35] I have also considered, as a result of this finding, whether it can be said on a credibly-based probability standard that a smartphone, affording evidence of this offence will be at the location to be searched given the nearly three month gap in time and the portability of cell phones. Mindful as well that there was no investigation referred to in the ITO concerning the scope of people connected to this residence, whether there was any change in persons connected to the residence, or even the type of ‘dwelling-house’ it is.
[36] I do accept the Crown’s submission that by the year 2019, one would expect—and could infer—that a residential Wi-Fi would be password protected. Anyone accessing a subscriber’s internet service would likely be an occupant or someone closely connected to the residence; and in this case two and a half to three months is not stale, keeping in mind an individual with the same name and address as the subscriber of the IP address used to upload the child pornography image had a driver’s licence with the same address within weeks of the issuance of the warrant.
[37] In assessing whether there are reasonable grounds to believe this same smartphone—and hence user of it—would be at the location searched, the affiant and issuing justice is entitled to have drawn the inference that the phone’s user is connected to this residence. The reasonable grounds standard to be met is “determined qualitatively by applying reason to the evidence, not quantitatively by attempting to apply notions based on the probability branch of mathematics”: see Cusick at para 89.
CONCLUSION
[38] The warrant dated March 21st, 2019 which authorized the search of 303 McNabb Crescent on March 27th, 2019 is quashed due to a violation of the defendant’s rights under s. 8 of the Charter.
Released: April 15, 2021 Signed: Justice A. Calsavara
[1] Email address redacted from judgment [2] DOB redacted from judgment [3] IP subscriber email has been redacted from the judgment