DATE: June 12, 2024 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

TAYLOR JAVER

Before Justice John North

Reasons released on June 12, 2024

Pamela Santora.......................................................................................... counsel for the Crown Jordan Donich and Stuart O’Connell................................................... counsel for the Defence

NORTH J.:

INTRODUCTION

[1] Taylor Javer (the Applicant) is charged with one count of accessing child pornography and two counts of possession of child pornography.

[2] On May 26, 2022, Toronto Police Service (TPS) officers executed a search warrant at the Applicant’s home. Two electronic devices that were located by police inside the Applicant’s home contained images and videos which met the definition of child pornography.

[3] The Applicant brought an application under s. 8 of the Charter, seeking the exclusion of all evidence obtained by police from the Applicant’s electronic devices, pursuant to s. 24(2).

[4] The Applicant concedes that the Information to Obtain contained sufficient evidence to establish that there were reasonable grounds to issue the warrant.

[5] The Applicant argues that his rights under s. 8 were violated because the search of the electronic devices was not carried out in a reasonable manner. The Applicant’s arguments are focused on the search that was conducted after the devices were taken to the police station. [1] The Applicant makes the following arguments:

• The police violated the Applicant’s s. 8 rights by failing to make detailed notes of the cell phone and computer searches they conducted.
• The police violated the Applicant’s s. 8 rights by searching all images and videos contained on the seized devices.
• The police violated the Applicant’s s. 8 rights by not applying a date filter on the data they searched.

[6] The Crown argues that the Applicant’s rights under s. 8 were not violated. The Crown takes the position that the examination of the Applicant’s devices was done in accordance with the judicial authorization. The Crown argues that the failure of an officer to take detailed notes while he searched the contents of the devices did not result in a s. 8 violation. The Crown argues that the police were reasonable in their decision not to limit their examination by file, type or date. Finally, the Crown argues that the warrant authorized the police officer who conducted the searches “to examine far more than he did in this case and he demonstrated remarkable restraint in his review of the data.” [2]

[7] On this application, I heard viva voce evidence from one witness, Detective Constable Guy Kama, who is a member of the TPS Internet Child Exploitation Unit. DC Kama was the affiant on the information to obtain and was involved in the search of the seized electronic devices.

[8] The Applicant submitted an affidavit. Crown counsel did not cross-examine the Applicant on his affidavit.

[9] I previously advised the parties that the application was dismissed, with reasons to follow. These are those reasons.

EVIDENCE

Background

[10] In February, 2022, officers with the Internet Child Exploitation Unit of the TPS received information from Snapchat (via the National Child Exploitation Crime Centre) that on February 13, 2022, a Snapchat user had uploaded eight images and one video containing sexually explicit images involving children.

[11] In March, 2022, TPS officers viewed the nine files and determined that each met the definition of child pornography.

[12] In March, 2022, DC Kama sought and obtained a production order for subscriber information in relation to an IP address connected to the Snapchat upload on February 13, 2022. As a result of the production order, police discovered that the name of the subscriber for that IP address was “H. Javer” and the address was “1 Trent Street, Toronto.”

[13] On May 25, 2022, Justice Finnestad issued a s. 487 search warrant authorizing a search of the dwelling house at 1 Trent Avenue, Toronto.

[14] On May 26, 2022, TPS officers executed the search warrant at 1 Trent Avenue, Toronto. The Applicant was inside the residence at the time. Officers seized a number of electronic devices from the residence, including a Samsung phone and an Asus laptop.

[15] Using digital forensic software, officers later found the following on the Samsung phone and Asus laptop: 1420 unique images of child pornography and 226 videos that contained child pornography.

[16] Two TPS officers were involved in the examination of the Applicant’s electronic devices: DC Kama and DC Sushil Saini. DC Saini was also assigned to the Internet Child Exploitation Unit. While the Applicant’s asserts that DC Kama failed to take detailed notes during the searches, there was no suggestion that DC Saini’s notes were deficient.

[17] DC Saini was present when the search warrant was executed at 1 Trent Street. He conducted a preliminary examination of one of the devices at the scene and found a file which he believed was child pornography. DC Saini showed the file to DC Kama. Once they were back at the police station, DC Saini made copies of the digital contents of the seized electronic devices.

[18] Using forensic software (LACE), DC Saini extracted image and video files from the copies. DC Saini also used another kind of forensic software (AXIOM) to extract additional artifacts from the copies. DC Saini provided the extracted data to DC Kama. DC Kama conducted an examination of the data.

Affidavit of the Applicant

[19] In his affidavit, the Applicant described the personal information that was contained on the seized electronic devices. According to the Applicant, this information included:

• Personal correspondence with family and friends.
• Financial records.
• Medical records for himself and family members.
• Tax records.
• Personal photographs.
• Account usernames and passwords.

The Search Warrant and the Information to Obtain (ITO)

[20] The search warrant authorized the police to enter 1 Trent Avenue, Toronto, between 6 am and 9 pm on May 26, 2022, to search for and seize items that were mentioned in Appendix A that were sought as evidence in respect of the commission of the offences mentioned in Appendix B.

[21] Appendix A authorized the police to search for a number of items, including:

• Electronic devices and data storage media (including computers and smartphones) which are capable of analyzing, creating, displaying, converting, transmitted, or storing electronic or magnetic computer impulses that will directly afford evidence of the offences listed in Appendix B.
• Documents or computer files pertaining to the occupant or occupants of the place to be searched that will assist in proving their occupation of the place and access to and control of the computer systems located therein.
• Documents or computer files pertaining to the identity of the user of the Snapchat accounts, including documents or computer files containing any of the following information: Screen/username: Bruhh_96; Phone: 416 837-8773; email address: javer1996@gmail.com.
• Documents pertaining to the identity of the Internet subscriber and others associated to the use of the Internet at that location.
• Documents or computer files containing passwords relating to computer accounts, encryption keys, data storage devise, email accounts, software clients, cloud storage, or online data storage that will afford evidence of the offences listed in Appendix B.

[22] Appendix A also provided that an examination of seized electronic devices “shall be completed” for a number of items, including the following:

• Data relevant to the offences listed in Appendix B. This condition stated that the search of the files could “not be limited by file types, as these files can be saved in virtually any file type.” [Emphasis added.]
• Computer data containing certain named information relating to the identity of the user of the Snapchat accounts.
• Computer data that contains a reference to a number of topics, including “H Javer” and “1 Trent Ave., Toronto”.
• Electronic information stored on computer media which shows a history of activities, including logs, and files that will afford evidence of the offences listed in Appendix B.
• Computer files including images, videos, address books, phone books, contact lists, diaries, chat logs or e-mails that will afford evidence of the offences listed in Appendix B.
• Passwords, passcodes, and encryption keys needed to access any of the preceding data.
• Data relating to the ownership, possession, access, use or control of the devices and/or their data.
• Data relating to the configuration of the devices’ systems and programs.

[23] Appendix A also includes the following condition:

• “No examination shall be carried out for the purpose of acquiring data created, or communications transmitted, after the execution of this warrant.”

[24] Appendix B sets out the offences for which the warrant was being sought:

• Possession of child pornography, on or about February 13, 2022, contrary to s. 163.1(4) of the Criminal Code.
• Accessing child pornography, on or about February 13, 2022, contrary to s. 163.1(4.1) of the Criminal Code.

[25] The search warrant did not contain a condition which limited the searches by reference to the date of the data.

[26] In the ITO, DC Kama states as follows:

• “The electronic devices and data storage media I am seeking in Appendix A can store data and can be analyzed by computer forensic investigators assigned to the Child Exploitation Section to retrieve a wide variety of evidence in relation to the offences listed in Appendix B.” [3]
• “There are a wide variety of techniques available to even novice computer and smartphone users to disguise or resist casual examination of data saved on a hard drive, in a smart phone or on another electronic device. Electronic files that constitute evidence can be easily renamed to appear as otherwise innocuous system files, and/or be moved into directories housing unrelated programs.” [Emphasis added.]
• “It requires time, experience and computer resources to defeat these and other techniques. Accordingly, it is necessary to examine the entire hard drive(s), smartphone, and other data storage devices and digital cameras, including the directory structure, program files, and – in varying degrees – each and every file, to complete a comprehensive search of electronic evidence.” [Emphasis added.]

Testimony of DC Kama

[27] DC Kama had been with the Internet Child Exploitation Unit since February, 2022. This case was his first investigation with the unit as a case manager.

[28] In examination-in-chief, Crown counsel asked DC Kama how he approached his examination of the data after he received it from DC Saini. DC Kama explained as follows: “I received two, I received data from two software that we use for the analysis. One is called LACE which is used to carve out images from electronic devices, so the review of that data was simply looking at every image one by one. Another software that we use is called Cellebrite, where data, the extraction of data from seized devices is placed into, and I would use search terms to analyze data from that.”

[29] DC Kama testified that when using Cellebrite, the process was similar to conducting a search with Google, in that a user would input a search term and results would be obtained from the data.

[30] Crown counsel asked DC Kama if he recalled which search terms he used when examining the data with the Cellebrite software. DC Kama responded that he did recall. After referring to the search warrant and the information to obtain, DC Kama testified that he conducted searches using the following terms:

• “BRUHHH_96” (Snapchat user-name)
• Javor1996@gmail.com
• “461-837-8773”
• “04-26-1996” (date of birth)

[31] DC Kama explained that these search terms came from the National Center for Missing and Exploited Children report (which was mentioned in the ITO). DC Kama testified that his purpose in using these search terms was to look for evidence in relation to this investigation.

[32] Crown counsel asked DC Kama if he conducted a search for “any particular files”. DC Kama replied that he did not. He explained that he “searched these terms and for the results associated to these terms, search terms.” DC Kama testified that he did not “look at any data beyond what was returned by the search results from those search terms.”

[33] DC Kama testified that when he conducted a search using the date of birth and the phone number the returns were “very extensive.” According to DC Kama, “return data was enormous and did not assist me to locating the evidence I was looking for.” Crown counsel asked DC Kama if he looked at any of the files that were returned by this search. DC Kama replied, “I may have looked at the first two returns, but I quickly realized that those search terms were not, would not assist me in this investigation.” In cross-examination, DC Kama testified that while he did not document the number of items that he reviewed as a result of using the date of birth as a search term, “I could tell you that it wasn’t more than three to five probably…”.

[34] In cross-examination, it was suggested to DC Kama that the data and the processes used in different cases would “begin to blur”. DC Kama replied that as this was his first case of this nature “it sort of stays with me a little more than the other cases.”

[35] In response to the suggestion by the Applicant’s counsel that his memory may have blurred in the 19.5 months between his examination of the electronic devices and the trial, DC Kama indicated that he continued to work on this case (in dealing with disclosure and by responding to Crown and defence inquiries) and that he “didn’t just work on this case once and never looked at it again until today.”

[36] In cross-examination, DC Kama testified that the result he received based on the email address and the username searches “were of more of an assistance into the investigation.” DC Kama recalled one “return of interest”. DC Kama testified that when he reviewed the results from the search that used the email address he did not examine the content of any e-mails or text messages.

[37] DC Kama testified that his purpose in using the e-mail address as a search phrase related to the “fact that that the email address was an email in use in the device and that the email was associated to a Snapchat account.” Crown counsel asked DC Kama if he reviewed any other records that “suggested that the email address was in use in relation to other apps or programs.” DC Kama testified that he did not, as he was “only interested in Snapchat”.

[38] Crown counsel asked DC Kama if he recalled what results were returned when he inputted the username “BRUHHH_96”. DC Kama said there were no results for that term, However, he testified that when he inputted “a few variations of the username” (including “BRUHHH 96”) he obtained some results. DC Kama testified that he did not review any of the contents from these results. Instead, DC Kama testified, he “just noticed that the username was in use and that it was associated to a few applications, including Snapchat.”

[39] In cross-examination, DC Kama testified that if he looked at the web history of a seized device it would have been as a result of one of the search terms that he used (ie. Javor1996@gmail.com) in Cellebrite. While DC Kama testified that, “off the top of [his] head” he could not recall anything about the web history from the electronic devices, he noted that that information could be obtained today by reviewing the Cellebrite report. DC Kama explained that “all the data contained in one device is extracted and placed on the software Cellebrite for me to go and analyze and examine.”

[40] DC Kama testified that after he conducted the examinations using the search terms he described, he did not use Cellebrite to examine other data on the electronic devices.

[41] DC Kama was also asked about the images that were extracted by the LACE software from the electronic devices. DC Kama testified that he looked at every image that was extracted by LACE, and he categorized them. Category one was for child pornography images. Category two was for images that were of “investigative interest”. Category three was for “other” images. DC Kama agreed that “category three” includes “things like systems images, things that are used to generate how applications look, ICONS, those sorts of things.”

[42] DC Kama explained that LACE conducted an initial categorization of the images based on an algorithm. Crown counsel asked DC Kama why he looked at every single image, since the LACE program “sort of does a pre-categorization to some degree.” [4] DC Kama replied that this was his first case, and he at the time was “not too familiar with LACE”. He went on to explain that he “wanted to make sure that I wasn’t missing any evidence or any images.”

[43] In cross-examination, DC Kama was asked if he had a “methodology or practice” when reviewing images that contained personal information (such as a bank statement) which had no connection to the investigation. DC Kama replied that “as soon as I saw an image that was clearly that of a document, it went into category three.” DC Kama testified that he did not look at the contents of images that contained bank account information. [5]

[44] In cross-examination, DC Kama agreed that he appeared to have “a very good recollection” of the “search protocols [he] took in respect of the information on the devices that were seized.”

[45] DC Kama testified that he made no other notes of the LACE categorization and the review he conducted of the data, besides those contained in a one page “case-log”. The relevant part of the case-log that he prepared contained the following information:

2022-06-06 Review evidence in Lace (EX3; EX2-1; EX1-1). Categorize pics and videos. 2022-06-08 Categorization completed. [Two lines redacted].

[46] In cross-examination, DC Kama agreed that, according to his case-log, the categorization process took three days (June 6, 7 and 8th). However, DC Kama also agreed that it took much longer than three days for him to review and categorize the images. When asked why this was not reflected in his notes, DC Kama stated as follows:

“I was relying only on the LACE report as, as notes in, in retrospect I should take more detailed notes when it comes to the review of the evidence.”

[47] DC Kama agreed that he relied on the LACE report (“in part”) as a record keeping mechanism. DC Kama also agreed that “the other part” was the one page of notes that he made in the case-log. DC Kama provided the following answers as to why he thought (at the time) that LACE and his case-log would be an appropriate way to record his review of the data:

“…A device was seized, a device was extracted and placed onto LACE. I, I don’t have the capability of altering the data, or making any changes to it, all I could do is categorize the images. So, and with the understanding that when the categorization is finished that will create a report that would reflect what I did, my steps and the, the fact that I categorized the images, so.

“…The way I saw it is a device was seized. The device contained a certain amount of images and I needed to disclose to the Crown and defence of the total number of images, which ones were child pornography and which ones were not, and I believe that’s what I did by processing by categorizing all the images on the device.”

[48] In cross-examination, counsel for the Applicant suggested that DC Kama was “putting [his] reliability of [his] memory at question” because he knew that there would be a significant amount of delay between his examinations and the trial date, and asked DC Kama if that crossed his mind. DC Kama replied as follows:

“But I wasn’t reviewing anything, I was categorizing. I’m not changing the images. I’m simply looking at them and placing them into one category and I can’t change that. I can’t change the images. Now, I understand what you are telling me and I, and I do agree, I should have taken more detailed notes, however at the time I thought that the simply doing the categorization would reflect what my what my task were which was…

…I believed at the time that categorizing the images would reflect what my tasks were. Essentially, I was – my notes would, would have said ‘I’m categorizing on Monday between 8:00 and 9:00’, and then the report would have shown the categorization.”

[49] DC Kama did not agree with the suggestion that the reason he did not take more detailed notes was he believed that he was “doing one function which is the categorization of images”. DC Kama testified as follows:

“No, that’s not what I’m saying. I’m saying that I began categorizing and I didn’t write every, every single step that I took during the categorization which means the recording of time, the number of images that I looked at on a certain day, and when I stopped. However, I believed that the result would have – was the same or would have been the same that I looked at the images and I categorized them.”

[50] The Applicant’s counsel asked DC Kama why, 19.5 months later, his memory of the steps that he took in examining the electronic devices would be reliable. DC Kama provided the following response:

“I don’t think you need to trust my memory in this particular example. I think the, the report speaks for itself. I can’t change the data on the device and if there were images that I didn’t categorize then it would show in the report that there’s a certain number of images that haven’t been looked at and the report shows that there are zero images that were not categorized. So, I don’t think this turns on my memory.”

[51] In cross-examination, DC Kama agreed that there were “two different ways that [he] approached the evidence”. The first was “in respect of images and videos”. The second was “in respect of everything else.” DC Kama testified that anything that was not an image or video, he “did a fairly brief search of that based on a number of different search terms”, but stated he “didn’t go farther than that”. The Applicant’s counsel asked DC Kama to explain how he could say that he didn’t go farther than that, and DC Kama responded by stating that he conducted searches based on the information that he received for the investigation (email address; username etc.), but he “wasn’t interested in anything else.”

[52] When it was suggested that the search warrant authorized searches for information that might establish “identity” and “possession of the devices at the relevant times”, DC Kama testified that there was no need to do additional searches for information about those issues since the devices were seized from the Applicant and there was evidence in the LACE reports (including photographs of the Applicant) that would support the conclusion that the Applicant was the owner of the devices.

[53] The Applicant’s counsel asked DC Kama, if in reviewing the contents of electronic devices, evidence of dates might be “very relevant” to establish identity and control. DC Kama replied as follows:

“When it comes to electronic devices, I don’t think we can entirely rely on dates and times because, again, in electronic devices, dates and times can – it states in paragraph 50, they may not be accurate, and it also says that in fact they do not exist from some deleted files. The time stamps can be easily changed. I can take a file that I’ve created today and if I want to change the time I created that file or change the dates if I want to, and because of that reason, we can’t entirely rely on date and time of the data.” [Emphasis added.]

[54] DC Kama testified that images in an electronic device could be created or altered before or after the date of the offence that was being investigated. Consequently, when he was looking for an image on the device, he could not assume that the image was created on the date of the alleged offence or that the image remained exactly the same. DC Kama testified that, “it would be a mistake on my part to assume that because the offence date was February 13, 2022, all the files involved in this investigation were created on the same date.”

[55] The Applicant’s counsel made the following suggestion to DC Kama: “As you move further away from that date (February 13, 2022), information that you might discover, as a general proposition, would become less relevant.” DC Kama replied, “it depends on the information.”

SECTION 8 OF THE CHARTER - GENERAL PRINCIPLES

[56] For a search or seizure to be reasonable under s. 8 of the Charter:

• It must be authorized by law;
• That law must itself be reasonable; and
• The search or seizure must be carried out in a reasonable manner. [6]

[57] In this case, as previously stated, the only issue is whether the search of the seized electronic devices was carried out in a reasonable manner.

[58] Where an accused asserts that a search or seizure which was conducted under the authority of a warrant was not carried out in a reasonable manner, the onus is on the accused to prove that the search or seizure contravened s. 8 of the Charter. [7]

[59] Canadian courts have recognized that as computers and other digital devices are repositories of enormous amounts of private information, “the privacy interests implicated by computer searches are markedly different from those at stake in searches of receptables such as cupboards and filing cabinets.” [8]

ISSUES

Issue One – Did the police violate the Applicant’s section 8 rights by failing to make detailed notes of the cell phone and computer searches they conducted?

[60] In the factum filed by the Applicant, it was suggested that by not taking detailed notes of the searches, DC Kama violated the Applicant’s s. 8 rights. During oral submissions, the Applicant’s counsel argued that while there may not be a constitutional obligation on a police officer who examines the contents of an electronic device that was seized under the authority of a warrant to take detailed notes, “the absence of adequate police notes gives rise to the inference that there was an unreasonable search.” [9] Counsel for the Applicant asserts that, in this case, the inference that the search was unreasonable is “strong.” [10]

[61] Crown counsel takes the position that the lack of detailed notes by DC Kama should not result in a finding that the manner of the search was unreasonable. Crown counsel notes that DC Kama testified about how he went about conducting his search, and argues that DC Kama was a credible witness who provided reliable evidence. Crown counsel asserts that this is not a situation where DC Kama is alleged to have “been attempting to recount thousands of Word files or documents.” [11] Crown counsel argues that DC Kama was able to provide reliable evidence regarding the scope of the search he conducted:

“He was able to be quite clear with the Court about what parameters he took in searching the device and even when he attempted to use those parameters and it didn’t work for him, he was able to clarify for the Court that he did take steps to refocus his search because the parameters he was attempting to use weren’t working.” [12]

[62] Crown counsel also asserts that the LACE report was “essentially an entire record” of DC Kama’s search of the images and videos. The Crown acknowledges that “the officer laid eyes on every single image and video on this computer.” Given that fact, Crown counsel argues as follows:

“… even without additional notes, records, reports, I don’t know what that would add to the record before this Court because essentially he’s acknowledging that he went as far into the privacy of those images and videos as could possibly have occurred. And the Crown’s position is that given the, the search warrant, given the type of investigation, it would not – it’s not unreasonable for him to look at every image or video. In fact, it would – it would be potentially problematic if he didn’t. He was entitled to look for images in Word documents, although he did not. He was entitled to go looking for images in PDF files, although he did not. He went with only what was in the LACE report which was images and videos as by file type which is a limitation.” [Emphasis added.] [13]

[63] The question of whether an officer must take detailed notes when searching electronic devices has been addressed by a number of courts.

[64] In R. v. Vu, 2013 SCC 60, at paragraph 70, Cromwell J. considered whether there is an obligation on a police officer to take detailed notes about how a search of an electronic device (seized pursuant to a search warrant) was conducted. [14] Cromwell J. provided the following guidance, at paragraph 70:

“Although I do not decide here that they are a constitutional prerequisite, notes of how a search is conducted should, in my view, be kept, absent unusual or exigent circumstances. Notes are particularly desirable when searches of computers are involved because the police may not be able to recall the details of how they proceeded with the search.” [Emphasis added].

[65] Cromwell J. was critical of the officer who conducted the examination of the seized computer in Vu, as the officer intentionally did not take notes during the search so he would not have to testify about the details. [15]

[66] In R. v. Fearon, 2014 SCC 77, the Court concluded that the common law power to search incident to a lawful arrest permits, in certain circumstances, an examination of a cell phone and other similar devices found on a suspect. Cromwell J. found, at paragraphs 3-4, that an appropriate balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable search and seizures can be achieved “with a rule that permits searches of cell phones incident to arrest, provided that the search – both what is searched and how it is searched – is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.” [Emphasis added.] [16]

[67] At paragraph 82, Cromwell J. noted that while the Court in Vu “encouraged” officers to take detailed notes in the context of an examination of electronic devices that had been seized as a result of a search warrant, officers “must” take detailed notes where they examine a cell phone as a search incident to arrest. Cromwell J. held that the obligation on an officer to take detailed notes when conducting an examination of an electronic device under the common law power of search incident to arrest is a “constitutional imperative”:

“Given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a constitutional imperative”. [17]

[68] In R. v. Villaroman, 2018 ABCA 220, the appellant argued that the police violated his s. 8 rights by failing to take notes documenting how they conducted a search of a computer that was seized during the execution of a search warrant. At paragraph 17, the majority noted that in Fearon, Cromwell J. did not conclude that there was a constitutional requirement to take detailed notes when searching a electronic device that was seized as a result of a warrant. The majority concluded that the failure of an officer to take detailed notes when searching electronic devices that were seized under the authority of a warrant could, in some circumstances, “give rise to an inference that the police conducted the search unreasonably”: Villaroman, at paragraph 17. In a concurring judgment, at paragraph 55, Berger J.A. concluded that “notes documenting the search of a computer should be kept by police, but are not constitutionally required.” [18] Both the majority and Berger J.A. concluded that the appellant’s rights were not violated by the police failing to take detailed notes of the manner in which the search was conducted. The majority concluded that the failure to take detailed notes did not support an inference that the officer in that case conducted the search unreasonably. The majority stated, at paragraph 17, that the forensic examiner in that case “testified at length about how he conducted the search.” Immediately following that statement, the majority concluded as follows at paragraph 17:

“The failure to take detailed notes does not appear to have undermined the appellant’s ability to meaningfully challenge the reasonableness of the search.”

[69] In R. v. Barwis, 2022 ABQB 561, at paragraph 115, Labrenz J. relied on the reasoning in Villaroman, and concluded that the failure of the officer who conducted a search of electronic devices, under the authority of a warrant, to take detailed notes “in and of itself” did not render the search unreasonable. Labrenz J. found, at paragraph 115, that the lack of detailed notes did not “undermine the accused’s ability to challenge the reasonableness of the search.”

[70] In R. v. Fardy, 2023 NSSC 28, the police were investigating multiple sexual assaults and assaults against different women over a four year period. When the accused was arrested, the police seized his iPhone. Police officers obtained a warrant to search the phone. At trial, the defence advanced a number of arguments in support of its position that the accused’s s. 8 rights had been violated in relation to the search of the phone. One of these arguments was that the accused’s s. 8 rights had been infringed because the officer who searched the phone did not keep detailed notes of his examination. After referring to the reasoning of the Court in Villaroman, Arnold J. concluded as follows at paragraphs 56 and 63:

“Unlike the search of an electronic device incident to arrest, there is no constitutional requirement that the police take detailed notes when searching an electronic device as a result of the seizure under the authority of a search warrant. However, detailed note-taking is urged by the Supreme Court, and, depending on the circumstances, the failure to keep detailed notes might support the argument that a search of an electronic device under a warrant was unconstitutional. In this case, Constable Marshall testified that he did not keep detailed notes. However, the only evidence to which this omission is relevant is Mr. Hardy’s internet history, and the Crown is not relying on that.” [Emphasis added.]

“In this case, the failure of the police to keep detailed notes while searching the phone under the authority of a warrant was not constitutionally required and on these facts is not a s. 8 Charter violation.” [Emphasis added.]

[71] The law is clear that the obligation to take detailed notes when examining an electronic device, under the common law power of search incident to arrest, is “a matter of constitutional imperative.” [19] However, in this case, the examination of the electronic devices was not a warrantless search.

[72] In my view, there is no absolute requirement under s. 8 of the Charter that a police officer who searches an electronic device (under the authority of a search warrant) must take detailed notes. Having said that, there is no question that police officers should be encouraged to take detailed notes when examining electronic devices that were seized pursuant to a search warrant.

[73] The “failure to take detailed notes might support the argument that a search of an electronic device under a warrant was unconstitutional.” [20]

[74] In this case, DC Kama failed to make detailed notes when he searched the electronic devices. DC Kama acknowledged that he should have made detailed notes. There were no unusual or exigent circumstances to explain why DC Kama did not make detailed notes. The issue is whether DC Kama’s failure to make detailed notes resulted in a s. 8 violation. For the following reasons, I have concluded that the Applicant’s s. 8 rights were not violated.

[75] There is no uncertainty about which images or videos (that had been extracted by LACE) DC Kama examined – he viewed all of them. During his testimony, DC Kama explained how he approached and conducted the searches (both Cellebrite searches and the images extracted using LACE). I found DC Kama to be a credible witness, who provided reliable evidence. His evidence made sense. His account was not significantly undermined during cross-examination. I accept his explanation as to why he is able to recall details about the search he conducted over 19.5 months later.

[76] Unlike the circumstances in Vu, I have found that DC Kama did not deliberately fail to make notes so that he would not be asked questions at trial about how the search was conducted.

[77] The absence of detailed notes in this case did not result in the Court being unable to conduct a meaningful Charter review of the search. The Applicant’s counsel was able to cross-examine DC Kama on the manner and breadth of the search he conducted. DC Kama testified about what he did and did not examine on the electronic devices (and the extent to which he examined certain items). I accept his evidence. In my view, the failure of DC Kama to make detailed notes does not support an inference that the search was conducted in an unreasonable manner.

[78] On the facts of this case, I have concluded that DC Kama’s failure to take detailed notes while searching the electronic devices did not violate the Applicant’s s. 8 rights.

Issue Two – Did the police violate section 8 by searching all images and videos contained on the seized devices?

[79] The Applicant argues that his s. 8 rights were violated by the police searching all images and videos that were on the seized electronic devices. The Applicant asserts that “there was no need for the police to engage in such a sweeping search of personal information.” [21] The Applicant takes the position that the police failed to properly tailor the search by only looking items that could be relevant to the investigation of the suspected offences. The Applicant argues that “it was incumbent on the police to mitigate the privacy by using available technology or a methodology to exclude data which is not potentially relevant to the investigation”. [22]

[80] Crown counsel acknowledges that DC Kama “completed a comprehensive search of the electronic devices, including a review of every single image and video on the digital device.” [23] The Crown asserts that this was “explicitly contemplated in the ITO at paras. 48 and 49.” [24] It was the position of the Crown that the search was reasonable.

[81] When conducting a search, police officers are obligated at each stage of the process to ensure that they are complying with s. 8 of the Charter. [25] Obtaining a warrant to search electronic devices does not mean that the police “have a licence to scour the devices indiscriminately.” [26] Instead, police officers are “bound, in their search, to adhere to the rule that the manner of the search must be reasonable.” [27] Consequently, as Cromwell J. stated in Vu, at paragraph 61:

“…if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.”

[82] The permissible scope of a search “will be highly circumstance-dependant.” [28] The nature of the investigation, and the type of evidence being sought, will be important considerations in determining whether the scope of a search conducted by police was unreasonable.

[83] The ability of individuals to potentially hide items on a computer is another factor to consider when assessing whether a search was reasonable. In Vu, at paragraph 57, Cromwell J. stated “the ease with which individuals can hide documents on a computer will often make it difficult to predict where the police will need to look to find the evidence they are searching for.”

[84] In Vu, Cromwell J. recognized that, in certain investigations, imposing conditions in a warrant that limit searches by file types could lead to blind spots in an investigation, which would undermine the legitimate goals of law enforcement. [29]

[85] In Villaroman, the police obtained a general warrant under s. 487.01 for a computer, after receiving information from a computer repair technician that he saw child pornography on the computer. The police copied the computer’s data and searched the copy. The analyst did not limit his search to the music folder in which the repair technician had seen a video of suspected child pornography. Instead, the analyst examined “all picture files and movie files on this computer”. [30] The appellant argued that the search should have been limited to the folder where the technician identified the child pornography, The Court concluded that a “general search of the files stored on the computer did not render the search unreasonable.” [31] The Court found that it was reasonable for police to examine all the photographs and videos. The Court held that it was reasonable to search files that were outside the music folder. Finally, the Court also found as follows:

“Videos and images depicting child pornography may be hidden throughout a hard drive, and it was not unreasonable to look for such files in other places.” [32]

[86] In R. v. Jones, 2011 ONCA 632, Blair J.A. concluded it is helpful in a warrant to focus on the types of evidence being sought (instead of the types of files that may be examined) in cases where it may be “necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged.” [33] Blair J.A. also held as follows:

“To the extent they [the police] are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking.” [34]

[87] In R. v. John, 2018 ONCA 702, the appellant argued that the trial judge erred by failing to exclude evidence of child pornography found on a computer that was used by him, on the ground that the search of the device was unreasonably invasive. In John, the police seized the appellant’s computer pursuant to a search warrant. An officer “conducted a ‘pre-categorization’ of all the images and videos that were on the hard drive, and identified files bearing the hash values of known child pornography.” [35] The officer provided the results of the “pre-categorization” to another officer. The second officer examined the results of the pre-categorization and determined that there were 50 unique images of child pornography on the appellant’s computer. The appellant did not suggest that this step was unreasonable. Instead, the appellant argued that the next steps taken by the second officer were unreasonable. That officer “systematically examined every image and video located on the hard drive.” [36] The officer also reviewed the computer’s Internet history. He ultimately found 89 unique videos containing child pornography. At trial, the officer testified that he could “not have narrowed his search by hash values alone, because if even one pixel in an image had been changed, the hash value would be different.” [37] The officer testified that he did not look at documents or other personal information unconnected to his search for images and videos of child pornography and his attempts to identify the person responsible. In finding that the search was reasonable, Pardu J.A. concluded as follows:

[20] Where a user has some child pornography on his or her computer, identified by the search methods used initially by police here, it is not unreasonable to look at the other image and video files on the computer to see if there is more child pornography there. Searching by hash value would only uncover known examples of child pornography already in the police database and would also miss any of those known examples if the hash value had been changed in any way, whether intentionally or not. A search that relied on the name attached to a file might not uncover further child pornography files as a user could attach any name he or she wished to an image or video or folder and that name might not be indicative of its content.

[21] Given this context, it was reasonable for police to look at all image and video files when they were looking for images and videos of child pornography. It was also reasonable for them to examine the Internet search history and the dates and times of access to the appellant's Internet accounts to identify the person searching for child pornography. Here, in addition to the appellant, three other persons were potential users of the computer, namely, the appellant's father (the owner of the home and the subscriber assigned to the IP address), his sister (who had a user profile on the computer) and his sister's boyfriend (who visited the home).

[22] Moreover, there is no evidence that the police looked at documents, banking records or other programs or files unrelated to the search for child pornography and the identity of the person in possession of that material. The search was appropriately tailored to the type of evidence being sought and the offences being alleged.

[24] I do not accept the argument that there must be prior evidence of concealment of incriminating evidence before police can look at all images and videos stored on a computer in this kind of investigation where some child pornography has been located on the computer on initial examination. Rather, a search of all images and videos is appropriate in an investigation like this precisely to determine whether there is more child pornography on the computer. To limit police to searches by hash values, file names and download folders would be to provide a roadmap for concealment of files containing child pornography.

[26] Finally, I reject the argument that the search of all images and videos here was overly invasive because the vast majority of the offending material would have been located using a combination of hash value comparison, keyword searching of file name and searching the file folders most likely to contain child pornography. This argument fails because it uses the ultimate results or fruits of the search to dictate whether the scope of the search was reasonable. Given the limitations of searching only by hash value or file or folder name discussed above, hindsight should not be used in this way to turn what was once a reasonable search in all the circumstances into an unreasonable one. [Emphasis added.]

[88] In this case, there is no dispute that the Applicant’s privacy interests were significantly impacted by the police searching for and examining all images and videos on the seized electronic devices.

[89] In my view, the search of the electronic devices by DC Kama “was related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant”. [38] DC Kama did not search the contents of the electronic devices “indiscriminately”.

[90] I have concluded that it was not unreasonable for DC Kama to examine each image and video (even with the initial categorization of the images and videos by LACE). DC Kama’s inspection of the images and videos was reasonable to ensure that they were properly categorized and to satisfy himself that no relevant evidence had been missed. In my view, the reasoning of the Court in John supports this conclusion.

[91] I am satisfied that the search conducted by DC Kama was proportionate and properly tailored to the objectives of the investigation.

Issue Three – Did the police violate the Applicant’s section 8 rights by not applying a date filter on the data they searched?

[92] The Applicant argues that the police violated s. 8 of the Charter by searching data on the seized electronic devices “without tailoring their search to any time range.” [39] The Applicant takes the position that “a lack of date limits on the warrant does not necessarily permit the police to conduct a search without confining the search within reasonable temporal parameters.” [40] The Applicant argues that “the police have available to them the necessary software, technology and expertise to enable them to tailor their searches by date.” [41]

[93] Crown counsel argues that the search of the electronic devices without the use of a date filter was reasonable. It is the Crown’s position that the following paragraph from the ITO explains why a date filter would undermine the ability of the police to find evidence that is relevant to the investigation:

“I am aware that the time stamps on computer devices may not be accurate and, in fact, do not exist for some deleted files. The time stamps for files can easily be changed by a user and thus cannot be completely relied upon. Therefore, it is unreasonable for a computer forensic examiner to limit their search for evidence that is only reflective of the dates of the offences as they would potentially miss evidence. Subsequently, all exhibits seized would need to be fully forensically examined and searched to obtain evidence of the offences listed in Appendix B.” [42] [Emphasis added.]

[94] Crown counsel also notes that it is important to remember that the police were not just looking for the nine files that they had initially received information about. The police were also seeking evidence “about where and how those files were obtained, when they were obtained, where they were stored, the extent to which they were viewed, engaged with, or shared, and by whom all of this was done.” [43]

[95] Crown counsel states that where the police do not know “when the offence was initiated” in a child pornography, “it is relevant when and how the suspect came into possession of the illicit material.” [44]

[96] In some cases, a date filter may be required to make a search of an electronic device reasonable. For example, in R. v. Marek, (2016) ABQB 18, the trial judge concluded, at paragraph 147, that the failure of the police to apply a “reasonable date filter to the contents of the computer and storage devices” violated the accused’s s. 8 rights. The trial judge, at paragraph 146, found that the police seized and conducted a search of data which “had no apparent relevance to the investigation.”

[97] In my view, the decision of the Ontario Court of Appeal in John supports the conclusion that DC Kama was not required to use a date filter to make the search reasonable. In John, at paragraph 25, Pardu J.A. rejected the appellant’s argument that the search of seized electronic devices in a child pornography investigation was unreasonable because the police failed to apply a date filter. At paragraph 25 Pardu J.A. stated as follows:

“I also do not accept the argument that the search was overbroad because it was not tailored to a date range in terms of the files searched. Here the police were looking for images and videos of child pornography and evidence that might show who was responsible for that content. This was not a broad search of multiple devices or large amounts of data unrelated to the specific investigation, such as in R. v. Sop, [2014] O.J. No. 3666, 2014 ONSC 4610 (S.C.J.), at paras. 116-149; or R. v. Marek, [2016] A.J. No. 24, 2016 ABQB 18, at paras. 120-147. [Emphasis added.].

[98] In the case at bar, I accept the Crown’s position that the Applicant’s suggested use of a date filter may not have captured the “nuances of the investigation”. [45] Having regard to all the circumstances, including the specific nature of the investigation and the potential unreliability of information regarding dates in electronic devices, I find that it was reasonable for the police to believe that relevant evidence could have been missed if the police used a date filter. I am not satisfied that DC Kama could have reasonably concluded, prior to examining the images and videos, that any of them had no apparent relevance to the investigation.

[99] I am not persuaded that the search had to be tailored to a date range to make the search reasonable.

CONCLUSION

[100] I have concluded that the searches of the seized electronic devices were carried out in a reasonable manner. The Applicant’s s. 8 rights were not violated.

[101] The application is dismissed.

NORTH J.

Footnotes

[1] The Applicant acknowledges that observations made by Detective Constable Sushil Saini of certain contents of the seized electronic devices while he was executing the warrant at the Applicant’s home did not violate s. 8 of the Charter.

[2] Submissions of counsel for the Respondent, January 25, 2024, at page 80.

[3] DC Kama provided examples of the type of evidence that could be retrieved, which included details of Internet sites visited, emails, chats, previously deleted files and file fragments. He stated that this kind of evidence may determine where the child pornography images or videos came from, and with whom these images and videos have been shared.

[4] In her submissions, Crown counsel stated that the LACE program “pre-categorizes or pre-suggests images and files that should go in category one and category three but it doesn’t pre-suggest what should go into category two and that is because that category is items of investigative interest and the computer program is not able to identify what the officer may find to be of investigative interest which would be, as the officer described, things like selfies of the user which would provide user data information”: Submissions of counsel for the Respondent, January 25, 2024, at pages 77-78.

[5] While DC Kama testified that he did not look at banking documents, Crown counsel argues that he would have been authorized to do so, as “pictures of banking information” would not necessarily be irrelevant to an investigation of this nature, as “it identifies who it is that is using the device”: Submissions of counsel for the Respondent, January 25, 2024, at page 78.

[6] R. v. Collins, [1987] 1 SCR 265, at 278.

[7] R. v. Cornell, 2010 SCC 31, at paras. 16-17.

[8] R. v. Vu, 2013 SCC 60, at para. 24. See also R. v. Fearon, 2014 SCC 77, at para. 51.

[9] Submissions of counsel for the Applicant, January 25, 2024, at page 54.

[10] Submissions of counsel for the Applicant, January 25, 2024, at page 55.

[11] Submissions of counsel for the Respondent, January 25, 2024, at page 73.

[12] Submissions of counsel for the Respondent, January 25, 2024, at page 73.

[13] Submissions of counsel for the Respondent, January 25, 2024, at pages 75-76.

[14] This was done in the context of the Court’s assessment of the first factor in the s. 24(2) Grant test.

[15] Vu, at para. 70.

[16] The Court concluded that the notes should “generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration.”

[17] Vu, at para. 82.

[18] With respect to a search conducted under the authority of a search warrant.

[19] Fearon, at para. 82.

[20] In relation to a search conducted under the authority of a warrant. Fardy, at para. 56.

[21] Factum of the Applicant, at para. 36.

[22] Factum of the Applicant, at para. 34.

[23] Factum of the Respondent, at para. 8.

[24] Factum of the Respondent, at para. 8.

[25] R. v. Nurse and Plummer, 2014 ONSC 5989, at para. 33, aff’d on other grounds 2019 ONCA 260.

[26] Vu, at para. 61.

[27] Vu, at para. 61.

[28] Villaroman, at para. 15.

[29] Vu, at para. 57.

[30] Villaroman, at para. 15. [Emphasis added]

[31] Villaroman, at para. 15. [Emphasis added]

[32] Villaroman, at para. 15.

[33] Jones, at para. 43.

[34] Jones, at para. 44. See also R. v. Shen, 2023 ONSC 6692, at para. 110.

[35] John, at para. 8.

[36] John, at para. 11. [Emphasis added.]

[37] John, at para. 11. [Emphasis added.]

[38] R. v. Shen, 2023 ONSC 6692, at para. 109.

[39] Factum of the Applicant, at para. 43.

[40] Factum of the Applicant, at para. 45.

[41] Factum of the Applicant, at para. 49.

[42] Information to Obtain, at para. 50.

[43] Factum of the Respondent, at para. 19.

[44] Factum of the Respondent, at para. 17.

[45] Factum of the Respondent, at para. 18.