R. v. Robert Wissink, 2018 ONSC 6787

COURT FILE NO.: 17-624 DATE: 2018/11/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Robert Wissink

BEFORE: Justice I.F. Leach

COUNSEL: Tyler Koverko, for the Crown Elizabeth Ferris, for the accused

HEARD: September 20, 2018, and by further written material submitted on or before October 5, 2018

Endorsement

Introduction and background information

1The accused, Robert Wissink, is charged with one count of possessing child pornography, (and graphic computer images/movies in particular), contrary to s.163.1(4) of the Criminal Code of Canada (“the Code”).

2Facts and developments leading to that charge, (based on the material and/or mutual party understandings outlined below), include the following:

• On or shortly before July 19, 2016, Officer Douglas J. Rees of the Ontario Provincial Police (“O.P.P.”), swore an “Information to Obtain Search Warrant”, (“ITO”). ¹
• The said ITO was to be included in an application, to a judicial officer, seeking a warrant authorizing a search of the accused’s residence, located at a specified address on Britannia Street here in the city of Stratford, and included the following information:
  • At the time of swearing the ITO in July of 2016, Officer Rees had been a police officer for many years, including years of extended involvement in the investigation of child pornography; e.g., doing so for the Hamilton Police Service from approximately 2001 to September of 2007, (when Officer Rees became assigned to the O.P.P), and for the “Child Pornography Section” of the O.P.P., (commonly known as “Project P”), from January of 2010 onwards. His accumulated training and experience in that regard included formal training and self-training on computers and the internet, personal involvement in investigations involving the possession and distribution of child pornography through computers and the internet, formal training and experience in relation to the personal preparation of “information” affidavits sworn to obtain production orders and search warrants, and familiarity with various specified databases from which Officer Rees also obtained information in the course of his child pornography investigations.
  • On March 12, 2016, an electronic complaint about certain images of child pornography, being posted on the social media site “Twitter”, was received by an organization in the United States known as “The National Centre for Missing and Exploited Children”, or “NCMEC”. In that regard, Officer Rees explained:
    • that NCMEC is a private and non-profit organization, established in 1984, which provides services throughout the United States, to families and professionals, relating to the prevention of abduction and/or sexual exploitation of children;
    • that pursuant to its mission and congressional authorization, NCMEC operates, inter alia, a “cyber tip line” to assist law enforcement and others in efforts to identify and rescue victims of child pornography and child sexual exploitation.
    • that NCMEC also works with electronic service providers, electronic payment service providers and others to reduce the distribution of child sexual exploitation images and videos on the internet; and
    • that while NCMEC does not investigate and cannot verify the accuracy of information it receives, it does make reports of apparent child sexual exploitation available to law enforcement for its independent review and analysis.
  • After receiving the aforesaid electronic complaint on March 12, 2016, NCMEC was able to locate the relevant post on Twitter, and found that it had been posted by a user identifying himself or herself as “hermwiss1”. NCMEC also was able to locate and review what appears to have been a publically accessible user profile account for “hermwiss1”, which showed:
    • that the account had been registered by the user with Twitter at “16:15:34 Hrs (UTC ²)” on March 12, 2016, using the email address “hermwiss@yahoo.ca” and the “internet protocol” or “IP” address, (i.e., a number specifically assigned to a computer by an internet service provider or “ISP” when a subscriber of that provider logs onto their internet service), of 70.53.153.150.
    • that the user had posted his or her name as “Herm WISS”, while leaving the space for entry of his or her location blank;
    • that the user nevertheless had indicated his or her “interest” as follows: “Jailbait, possible jailbait, not jailbait, or just looks like jailbait? You be the Judge! Feel free to follow, but locked accounts only and you must follow first!”; and
    • that the user had posted 72 images of young females in various forms of nudity.
  • Using the “American Registry of Internet Numbers”, (“ARIN”), NCMEC also conducted a check on the IP address of 70.53.153.150, and found that it was an IP address from outside the United States of America.
  • NCMEC then prepared a report containing the above information, and provided it to the National Child Exploitation Co-ordination Centre (“NCECC”) in Canada; i.e., a part of the Royal Canadian Mounted Police which acts as a “clearing house” for reports, from outside of Canada, of suspected child pornography possession/circulation.
  • Members of NCECC in Ottawa then reviewed the file, and found that the suspect user appeared to be located in the area of Stratford, Ontario. The NCECC accordingly then sent the file to the O.P.P. for follow up.
  • On or about July 4, 2016, the O.P.P. specifically assigned the file to Officer Rees for follow up. During his review of the file:
    • Officer Rees confirmed that IP address 70.53.153.150, used to create the Twitter account and posting on March 12, 2016, was a Canadian IP address.
    • Officer Rees was able to confirm, more specifically, that the relevant IP address was one falling within a group of internet addresses being used by Bell Canada.
    • Officer Rees reviewed the 72 images of young females, in various forms of nudity, that had been posted to Twitter by the relevant user, and confirmed that the captured images did fall within the Canadian definition of “child pornography” i.e., the definition set forth in s.163.1(1) of the Code. ³ To demonstrate support for that opinion and conclusion, Officer Rees provided two examples, by way of description. In particular, he described the following two sample images, which fell within the aforesaid Code definition of “child pornography”:
      • The first sample image depicted a young female, apparently 7-9 years of age. She was shown on her back, with her back raised and supported by her arms, bent at the elbows. She was wearing a blue “t-shirt” with the word “Madagascar” on it. The shirt was pulled upward to just below the breast area. The child was wearing no clothing on the areas of her body lower than the shirt. Her legs were bent at the knee and open, thereby exposing her vagina to view.
      • The second sample image depicted another young female, apparently 12-14 years of age. The child was shown seated on the floor, with her legs open and bent at knees, exposing her vagina to view. The arms of the child were resting on her knees. Her left hand held what appeared to be a “Smart phone”. Her right arm was bent at the elbow with her forearm extending towards her mouth, into which the child had inserted the index and middle fingers of her right hand.
    • Officer Rees also was able to confirm that the user had posted the aforesaid images to Twitter on March 12, 2016, between 16:15:54 Hrs (UTC) and 16:52:11 Hrs (UTC), from IP address 70.52.153.150.
  • On July 5, 2016, Officer Rees submitted an “Information to obtain production order” to the Ontario Court of Justice, in Hamilton, Ontario. In response, Justice of the Peace Woloschuk issued the requested production order, allowing Bell Canada to release subscriber information for the IP address 70.52.153.150 used on March 12, 2016, between the hours of 16:15:54 (UTC) and 16:52:11 (UTC).
  • Responding to the aforesaid production order, Bell Canada supplied Officer Rees with information identifying the user of IP address 70.52.153.150 on March 12, 2016, between the hours of 16:15:54 (UTC) and 16:52:11 (UTC), as “R. WISSINK”, at a specified Britannia Street residence and apartment number in Stratford, Ontario.
  • Officer Rees checked the Records Management System (“RMS”) of the O.P.P., and located information for a “Robert Herman Wissink”, with a specified birth date in May of 1969. The RMS also indicated a number of contacts with the police wherein the said “Robert Herman Wissink” had been identified as a complainant or parent contact for a specified youth.
  • Officer Rees noted that the “hermwiss1” user name, employed by the person who had posted the child pornography images to Twitter, incorporated and combined the first part of the name “Herman”, (i.e., the middle name of the aforesaid “Robert Herman Wissink”), and the first part of the name “Wissink”, (i.e., the surname of the aforesaid “Robert Herman Wissink”).
  • Officer Rees conducted an “open source” check and found that a specified telephone number was registered to a “R. Wissink”, at the same specified Britannia Street apartment address in Stratford. Officer Rees conducted further investigation in that regard by placing two calls to the specified telephone number for that address. In particular:
    • During the first call, a male answered. When Officer Rees asked whether he had reached the Sunoco gas bar on Ontario Street, the male answering the call said “no”, and advised that the caller had reached a private residence.
    • The second call placed by Officer Rees to the same specified number was again answered by a male. Officer Rees asked if Robert was there, and the male answering the call responded by saying “This is Robert”.
  • A further open source check of the name “Robert Wissink”, performed by Officer Rees, revealed an account, on the “Facebook” social media site, for a “Rob Wissink” who was from the St Thomas area but now resided in Stratford.
  • Based on the information outlined above, Officer Rees felt that the “Robert Herman Wissink” born on the specified dated in May of 1969 was the same “R. Wissink”, at the specified Britannia Street address in Stratford, Ontario, who controlled the user name “hermwiss 1” on Twitter and the email address hermwiss@yahoo.ca.
  • Officer Rees also included, in his ITO, detailed information he had received through speaking with members of the O.P.P.’s “Technological Crime Unit”, who specialize in the forensic analysis of electronic evidence, including the recovery and analysis of data stored on computer systems, cellular telephones and other related electronic devices. Amongst other things, that information included:
    • Confirmation that information capable of being recovered from such analysis includes copies of web pages created or accessed on a computer or downloaded from the internet, copies of electronically created documents, copies of emails and messages sent and received via email, instant messaging, chat conversations and other forms of social media.
    • Confirmation that even files or file fragments ostensibly deleted from computers and related devices may continue to exist for an extended period of time, (e.g., weeks or months), and remain retrievable through forensic programs, owing to the design of most common computer operating systems, which do not physically erase “deleted” files but simply mark the relevant areas of storage data as being available for re-use in the future.
    • Explanations of why it would also be necessary, for the purposes of such forensic analysis, to examine such items as the entire hard disk drive of a computer, (e.g., to overcome techniques employed by computer users to disguise or resist casual examination of saved data by document renaming, removing, password protection, encryption and/or compression), peripheral devices, media or documents, (e.g., insofar as they may contain passwords for computer systems, programs, data files and storage media), software and manuals, various forms of storage media, and computer peripheral devices.
  • Officer Rees indicated his belief:
    • that the offences of possession of child pornography and making child pornography available had been committed in Stratford on March 12, 2016; and
    • that execution of a search warrant granted pursuant to section 487 of the Code, in relation to the dwelling house or residence of Robert Herman Wissink, at the specified Britannia Street address in Stratford, Ontario, would yield evidence supporting charges in relation to such offences.
  • It was proposed that the requested search warrant be valid between July 25, 2016, and July 29, 2016, between the hours of 6:00am and 8:59pm. Further information about the manner of contemplated search, (including involvement of members of the aforesaid Technological Crimes Unit), was also included in the ITO.
• A formal application for such a search warrant, (including the aforesaid ITO sworn by Officer Rees), was submitted to a justice for review and consideration on July 19, 2016. ⁴
• On or before July 27, 2016 ⁵, the said justice, relying on the application material including the ITO sworn by Officer Rees, issued a warrant authorizing the O.P.P. to search the aforesaid Britannia Street residence of the accused. I frustratingly was not supplied with a copy of the warrant – although the Factum filed by the applicant indicates, (and Crown counsel did not dispute), that it authorized not only a search of the accused’s Britannia Street residence, but a further or “secondary” search of additional material that included:
  • various forms of storage media;
  • emails and other forms of instantaneous correspondence;
  • devices, media or documents that might contain passwords for the computer system, computer program, data files and/or other storage media;
  • software and manuals; and
  • peripheral computer devices.
• On July 27, 2016, officers of the O.P.P. attended at the specified Britannia Street apartment residence of the accused, and executed the aforesaid search warrant. That in turn led to the discovery and seizure of various electronic devices, (described in more detail in paragraph 8 below), said to contain child pornography as defined by s.163.1(1) of the Code.
• The accused was then arrested and charged with possession of child pornography, pursuant to s.163.1(4) of the Code.

Procedural history

3An indictment, relating to the aforesaid s.163.1(4) charge against the accused, was filed in this court on or about May 25, 2017. It indicates and confirms the accused’s election to be tried by judge and jury.

4On or about April 6, 2018, the accused delivered and filed a notice of application, to be argued and determined in advance of trial, seeking:

• a declaration that the search and seizure noted above violated the right, guaranteed to him pursuant to section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”), to be free from unreasonable search and seizure;
• a declaration that the alleged breach of his section 8 Charter right in turn violated the rights, guaranteed to him pursuant to section 7 of the Charter, to liberty and security of the person, and to not be deprived thereof except in accordance with the principles of fundamental justice; and
• an order, pursuant to section 24(2) of the Charter, excluding “any evidence” obtained as a result of the impugned search and seizure, insofar as it was said that the admission of any such evidence would bring the administration of justice into disrepute.

5On or about April 24, 2018, counsel for the accused delivered further material, consisting of a factum and book of authorities, in support of the aforesaid notice of application. In that regard, I note the following:

• The material filed by the accused, in support of the accused, was limited to a “Factum” and “Book of Authorities” filed by defence counsel. No separate application record was filed.
• Included in the aforesaid “Factum” was a conventional factum, (including parts entitled “Statement of the Case”, “Statement of Facts”, “Issues and the Law” and “Order Requested”), together with a list of “Authorities to be Cited” by defence counsel, and a copy of a document – or at least portions of a document - introduced and identified, (only by an “Index” to the aforesaid “Factum”), as a “Copy of the Information to Obtain Search Warrant”, (conventionally referred to in the vernacular and hereafter as an “ITO”), prepared by Officer Douglas J. Rees of the Ontario Provincial Police.
• It seemed clear that the latter document, insofar as it began with the heading “Appendix B”, and two pages thereafter included further information under the heading “Appendix C”, originally had formed part of a larger document or assembly of documents. I nevertheless was not presented with that further material to place the extracted “Appendix B” and “Appendix C” content in broader context. Nor was I provided with any further agreed or sworn information to indicate and confirm such matters as:
  • whether and when the aforesaid ITO was actually sworn by Officer Rees;
  • whether, when and how the ITO was submitted to a judicial officer as part of an application for a warrant to search the Britannia Street residence of the accused, (although the accused’s notice of application indicates that the ITO “sought a warrant”, and the concluding paragraphs of the ITO itself contain a proposal that the requested search warrant be valid during certain hours between July 25 and July 29, 2016, suggesting that an application containing the ITO was submitted before then);
  • the particular judicial officer to whom the application for such a search warrant was submitted;
  • whether and when the said judicial officer issued a search warrant, (although a warrant apparently was issued on or before July 27, 2016, as the notice of an application filed by the accused refers to execution of a search warrant on that date, in relation to the Britannia Street residence of the accused); and
  • the precise content or terms of any search warrant that was issued.

6On or about May 2, 2018, Crown counsel delivered a responding “Factum” and “Book of Authorities”, in relation to the accused’s application. The material contained indications that the Crown intended to oppose the application for reasons that included:

• a suggested failure by the accused to include sufficient details of the facts upon which the court was being asked to act; and
• a suggested absence of any evidence, (e.g., an agreed statement of facts or affidavit from the accused), indicating that the accused had standing to bring the application.

7The responding material filed by Crown counsel did not include any agreed or sworn material, including any information indicating or confirming such matters as:

• whether and when the aforesaid ITO was sworn by Officer Rees;
• whether, when and how the ITO was submitted to a judicial officer as part of an application for a warrant to search the Britannia Street residence of the accused;
• the particular judicial officer to whom the application for a search warrant was submitted;
• whether and when the said judicial officer issued a search warrant; and
• the content or terms of any search warrant that was issued.

8The application proceeded to a hearing before me on September 20, 2018. On that date, the accused tendered a brief affidavit sworn in support of his application, wherein:

• the accused indicated that he resided at 245 Britannia Street, Apartment 301, in Stratford, Ontario, at the time of the search warrant’s execution there on July 27, 2015, by officers of the O.P.P., and still resided there;
• the accused indicated that he was present at the said residence for a period of time while officers were present there to execute the search warrant, and was told by such officers that they would be seizing any computers and related devices found in the residence; and
• the accused provided a description of seven items removed from the said residence by the O.P.P., which included:
  • an “Acer Aspire E 15 Laptop”;
  • a 32GB “Lexar” white and orange “USB stick”;
  • a white “Samsung Galaxy s4”;
  • a black and white “ZTE Z933”;
  • a black “Samsung Galaxy S2”;
  • a black and blue “Nokia 520.2”; and
  • an 8GB silver and black generic “USB stick”.

9In addition to that affidavit, defence counsel expressed reliance on R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, confirming that an accused is entitled to rely on the Crown’s theory of the case to establish a reasonable expectation of privacy, in relation to searched premises or items, sufficient to confer the standing necessary to bring a section 8 Charter application such as this. Defence counsel also expressly confirmed that the accused was seeking exclusion of all evidence located and seized pursuant to execution of the relevant search warrant on July 27, 2016.

10In response, Crown counsel indicated that the Crown would no longer be advancing or pursuing threshold objections to the accused’s application based on any suggested lack of detail, (in relation to the evidence sought to be excluded), or any suggested lack of standing on the part of the accused to bring the application.

11While I still was not provided with any documentation presenting agreed or sworn information in relation to the matters described in paragraph 5 (sub-paragraph 3) and paragraph 7 herein, counsel effectively proceeded, (as noted above), to argue the application on the basis that the aforesaid ITO had been sworn by Officer Rees, submitted to a judicial officer on July 19, 2016, as part of an application for a warrant authorizing a police search of the accused’s Britannia Street residence, and that the judicial officer, relying on the sworn ITO, had issued a warrant as requested prior to that warrant being executed on July 27, 2016.

12I accordingly proceeded with a determination of the accused’s pretrial application on that basis. ⁶

13During the course of oral submissions received on September 20, 2018, defence counsel sought permission to tender, following the hearing and before I embarked on rendering my decision, supplemental authority dealing with the importance of ITO information being reasonably current to support the issuing of a search warrant. In the result:

a. I set a timetable granting permission for defence counsel to tender a supplemental book of authorities, (addressing that “currency of information” issue), and granting Crown counsel permission to provide a responding supplemental book of authorities, (dealing with that same issue), on or before October 5, 2018. b. On or about October 5, 2018, defence counsel delivered a “Supplemental Case Book”, (containing four additional reported decisions), to Crown counsel and the Court. c. Later the same day, (i.e., in the late afternoon of October 5, 2018), Crown counsel notified defence counsel and the court that, having reviewed the content of the Supplemental Case Book filed by the defence, Crown counsel would not be providing any additional case law with respect to the “currency of information” issue.

Analysis

14During the course of submissions, defence counsel confirmed that the alleged breach of the rights guaranteed to Mr Wissink by section 7 of the Charter flowed from and were entirely dependent upon the alleged breach of the rights guaranteed to him by section 8 of the Charter. ⁷

15In other words, there was no suggestion of any breach of section 7 of the Charter that would exist independently of any established breach of section 8 of the Charter.

16In the circumstances, I will turn first to the question of whether the circumstances give rise to a demonstrated breach of Mr Wissink’s section 8 Charter rights, before consideration of any finding that there has been a consequential and correlative breach of section 7 of the Charter.

17If breaches of the Charter are established, I then will turn to the question of whether evidence should be excluded pursuant to section 24 of the Charter, as requested by the accused.

SECTION 8 OF THE CHARTER

18General principles applicable to section 8 of the Charter, searches conducted pursuant to warrants, and challenges to warrant validity include the following:

• Pursuant to section 8 of the Charter, everyone has the right to be secure against unreasonable search and seizure. The purpose of the section is to protect individuals from unjustified state intrusions into their privacy. ⁸
• A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the search is carried out in a reasonable manner. An unlawful search is presumptively unreasonable. ⁹
• However, a search warrant issued by a justice is presumptively valid, and an accused alleging that a judicially-authorized search warrant was invalid, (as a prelude to seeking exclusion of evidence located and seized pursuant to execution of the warrant, on the basis of an alleged contravention of the accused’s section 8 Charter rights), bears the onus of demonstrating, on a balance of probabilities, the warrant’s alleged invalidity and any resulting Section 8 violation. ¹⁰
• Subsection 487(1) of the Code requires reasonable grounds, (i.e., to believe that the applicable legislated conditions of that subsection are satisfied), as the standard of persuasion to support issuance of a search warrant; i.e., to make issuance of the warrant lawful. Judicially interpreted, the standard is one of credibly based probability. ¹¹
• From both a common law and constitutional perspective, mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard for issuing a valid search warrant. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted. ¹²
• As searching of computers and mobile communication devices involves additional privacy interests, such searches require specific pre-authorization. In particular, if police intend to search to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they will discover will contain the things for which they are looking. It follows from that requirement of pre-authorization that, in such cases, the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek. ¹³
• So long as a sworn ITO meets the requisite legal norm, there is no need for it to be excessively lengthy or detailed. All it must do is set out the facts fully and frankly for the authorizing justice, so that he or she can make an assessment of whether the said facts rise to the standard required in the legal test for issuing the search warrant, and authorizing the intended search. Ideally, an ITO affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months or years. ¹⁴
• It is also important to appreciate that search warrants are statutorily-authorized investigative aides typically issued before any criminal proceedings have been commenced, and that the ITO affidavits sworn to obtain them almost invariably are drafted by police officers, often operating under tight time constraints and without the assistance of any legal advice. Courts accordingly have recognized that it is unrealistic and inappropriate to measure the quality of drafting of such documents by the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings. In short, “reasonable latitude” should be accorded to the drafter of an ITO in considering the precision of the language that was used in the document. Few search warrant applications are perfect. ¹⁵
• Those swearing ITO affidavits also may reasonably rely on hearsay. In that regard, while such affiants may not ignore signs that others providing information may be misleading them or omitting material information, they also are not required, in the absence of some indication that something is amiss, to conduct their own investigation to confirm the accuracy of such hearsay information. ¹⁶
• Moreover, an issuing justice is entitled to draw reasonable inferences from stated facts, and the affiant of an ITO is not obliged to underline the obvious. Furthermore, some deference should be paid to the ability of a trained police officer to draw inferences and make deductions which might well elude an untrained person. ¹⁷
• The “currency” or “freshness” of the evidence relied upon by the affiant of an ITO may be important in determining whether reasonable grounds exist to search a location. In that regard:
  • Numerous courts have held that an ITO must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there. ¹⁸
  • Assessing whether the evidence relied upon in the ITO is sufficiently recent to support reasonable grounds will depend on a number of factors, including the time that has passed, the nature of the document or thing that is sought, as well as the location to be searched. For example, given the nature of drugs and drug trafficking, information concerning the location of drugs may soon lose its value, with the passage of time, in supporting a claim of reasonable grounds to search a place. Towards the other extreme, information suggesting that a target had an account with a bank or other financial institution may have a much longer (if not infinite) “shelf-life” in an ITO focused on obtaining a warrant to seize such banking or other financial records; e.g., given the nature of regulated banking, including the third party institution’s obligation to preserve client records. ¹⁹
  • In appropriate cases, concerns about the currency or freshness of information, (e.g., owing to the passage of time between the offences under investigation and the time at which a search warrant is sought and issued), may be offset by other information or other circumstances, (including exigent circumstances), that might justify reliance on dated information. ²⁰
• For lawful issuance of a warrant, it is necessary, but not sufficient, that the affiant of an ITO subjectively or personally believed in the accuracy and credibility of the grounds of belief. Lawful issuance of a warrant also requires that reasonable grounds exist from an objective perspective; i.e., that a reasonable person, standing in the shoes of the police officer, could have believed that the facts probably existed as asserted, and have drawn the inferences therefrom submitted by the affiant. ²¹
• In that regard, the inferences, conclusions and beliefs of the ITO affiant need not be the only reasonable ones to be drawn from the evidence. In particular, the evidence also may be capable of alternative innocent or contrary interpretations and explanations, but that does not render “non-innocent” inferences, conclusions and beliefs unreasonable. So long as the ITO contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued, that is sufficient to confirm the validity of the warrant. ²²
• In reviewing the sufficiency of a warrant application, and the sufficiency of an ITO in particular, the reviewing judge must not approach the question of the issuance of the search warrant de novo, simply substituting his or her view for that of the issuing justice. The test is whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could properly have issued. In particular, the question is not whether the reviewing court itself would have issued the warrant, but whether there was any sufficient credible and reliable evidence to permit the issuing justice 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. Again, that standard does not require proof beyond a reasonable doubt or proof of a prima facie case. If the inference of specific criminal activity and location of associated evidence is a reasonable inference from the facts, the warrant could have issued. ²³
• Challenges to the validity of a search warrant may be launched on the basis of alleged “facial invalidity”; i.e., with the accused attacking the validity of the warrant by arguing that the ITO, on its face, provided no sufficient and proper basis for the justice to issue the warrant. In such cases, the reviewing judge is required to examine the ITO and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. In other words, the record that is examined for the purpose of determining the facial validity of the search warrant is the ITO, and only the ITO. In such cases, the record is not enlarged or amplified by any additional evidence. ²⁴
• However, additionally or in the alternative, an accused may challenge the validity of a search warrant on a “sub-facial” basis, with the accused attacking the accuracy and/or reliability of the substantive content of an ITO. In such cases, the reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice who issued the warrant, if exclusions and amplifications are necessary and appropriate. In particular, in relation to such “sub-facial” challenges to the validity of a search warrant:
  • the reviewing court must exclude erroneous information; and
  • the reviewing court may have reference to “amplification” evidence; i.e., additional evidence presented during a voir dire to correct minor errors in the ITO, so long as such additional evidence corrects minor and technical errors made in good faith by the police in preparing the ITO rather than deliberate attempts to mislead the authorizing justice, and bearing in mind that amplification evidence is not a means for police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. ²⁵
• Again, however, the reviewing judge does not substitute his or her view for that of the justice who issued the warrant. If, based on the record which was before the authorizing justice, (taking into account any appropriate excising of misleading information and/or proper amplification on the review), the reviewing judge concludes that there was at least some evidence that might reasonably be believed, on the basis of which the authorization could properly have been issued by the authorizing justice, then he or she should not interfere. ²⁶
• Although it may be convenient to discuss separately the different pieces or types of evidence relied upon to justify issuing of the warrant, it is settled law that, in assessing the sufficiency of grounds offered, a reviewing court must assess the those grounds in their totality. The appropriate approach for judicial review of an ITO is scrutiny of the whole document in its entirety, rather than a limited focus upon isolated passages or paragraphs. In particular, a “line by line” and/or “word by word” dissection of the document, in an effort to show that some of the grounds standing alone do not support the existence of reasonable grounds, is not the correct approach. Again, the determination must be made with regard to the totality of the circumstances. ²⁷
• If an accused satisfies his or her burden of demonstrating the alleged invalidity of a search warrant, a search carried out pursuant to the invalid warrant will have been warrantless, and constitute a prima facie breach of section 8 of the Charter. ²⁸

19In this particular case, the application of the accused was limited to a “facial” challenge to the validity of the relevant search warrant.

20There was no suggestion, and nothing to support any finding, that the relevant ITO included any erroneous information. Nor was there any suggestion that amplification evidence was required to correct any suggested minor or technical “good faith” errors.

21It was instead argued that the ITO sworn by Officer Rees did not contain sufficient information upon which the issuing justice could have granted the relevant search warrant, such that the resulting searches of Mr Wissink’s residence, computer and related devices effectively were unauthorized and unlawful, which in turn gives rise to a prima facie breach of the rights guaranteed to him by section 8 of the Charter.

22In that regard, it was not disputed that, since a search warrant is presumptively reasonable, the applicant accused bore the onus of demonstrating that the warrant in this case could not properly have issued, having regard to the content of the ITO sworn by Officer Rees.

23In my view, the accused has not discharged that burden.

24To the contrary, in my view, having regard to the totality of the evidence presented in the ITO, and what I consider to be reasonable inferences to be drawn therefrom, there was clearly some sufficient credible and reliable evidence permitting the issuing justice to find reasonable and probable grounds that the offences of possessing and/or making child pornography available had been committed, and that evidence of those offences would be found at the time and place, (i.e., the accused’s specified Britannia Street residence in Stratford, during specified dates and times), set forth in the ITO.

25In that regard, I begin by noting that I found many of the points and arguments raised by defence counsel to be unpersuasive.

26For example, it was suggested that significant information set forth in the ITO was deficient, insofar as it was supplied to Officer Rees from other sources; e.g., from the NCMEC, (which according to the ITO “conducts no investigation and cannot verify the accuracy of the information it receives”), which in turn effectively had its information relayed to Officer Rees via the NCECC, (which supplemented the information to some extent by narrowing the location of the relevant IP address to the Stratford area), and the Ontario Provincial Police. However:

• As noted above, our Court of Appeal has confirmed that affiants swearing an ITO are entitled to reasonably rely upon hearsay, without necessarily conducting their own investigation to confirm the accuracy of such hearsay information, unless there are “indications that something is amiss”; e.g., signs that others providing the affiant with information may be misleading the affiant or omitting material information. In this case, the third parties providing the affiant with the challenged hearsay information were a non-profit private agency operating under American government authorization, and neutral Canadian government agencies or authorities. I see nothing to suggest concern about the intention of those agencies or authorities to provide accurate, full and frank information directly or indirectly to Officer Rees.
• Although the ITO itself indicates that NCMEC “does not investigate”, it apparently did so to some extent in this case; i.e., reacting to the electronic complaint it received by:
  • locating the relevant Twitter posting, together with information about the relevant user’s method of self-identification, the relevant user profile account, (including the name posted by the user, the user’s email address, the user’s IP address number, and the user’s stated “interest”), and the precise date and time at which the user profile account had been registered with Twitter;
  • confirming that the user had posted 72 images;
  • reviewing the images to confirm that they depicted young females in various forms of nudity, so as to constitute child pornography; and
  • checking ARIN to determine that the relevant IP address was one from outside the United States of America.
• By the time information from NCMEC reached Officer Rees, at least some of it had been independently checked and confirmed by the NCECC; i.e., which confirmed that the relevant IP address was indeed from outside the United States of America, and more specifically located in the area of Stratford, Ontario.

27Defence counsel also argued that the ITO information was deficient insofar as Officer Rees was alleged to have conducted only a “limited” investigation of his own, which was said to be confined to “retrieving information about the reported IP address”, “reviewing reported images”, and carrying out further internet searches and telephone calls which were said to be “irrelevant”. In that regard:

• It was argued that the ITO does not make it clear whether or not Officer Rees was “able to view the actual posting”; i.e., the posting of the relevant child pornography images to Twitter by user “hermwiss1” on March 12, 2016. It was also said that the ITO contains no indication that Officer Rees himself verified that the post came from the indicated IP address, and that Officer Rees did nothing to verify or confirm that the information in the reported information he received was accurate or corroborated.
• On my read of the ITO as a whole, (e.g., the references by Officer Rees to believing someone had possessed child pornography and made it available to others on March 12, 2016, and his reviewing of posted images which had been “captured” in that regard), I think it reasonable to infer that the officer initially, at least, may have focused on an effective “snapshot” of the information and images said to have been posted on the date of the suspected offence, “captured” by others. Again, for the reasons noted above, I think that, in doing so, Officer Rees was reasonably entitled to rely on the information he was receiving from objective government or government authorized sources, and that was especially true of the state of affairs said to have existed in the past; i.e., on March 12, 2016.
• In any event, however, although he was not obliged in the circumstances to verify and corroborate such information by conducting his own independent investigation, I read the ITO as indicating that Officer Rees nevertheless did take meaningful steps in that regard; steps which included but were not limited to a direct examination and inspection of the relevant Twitter user account. In particular:
  • Officer Rees took steps to obtain independent confirmation, (via his own ARIN check), that the indicated IP address was one located in Canada, and then took further steps to obtain more specific confirmation that the relevant IP address was within a group used by Bell Canada.
  • He independently reviewed the 72 images to satisfy himself as to their nature, and that they fell within the definition of “child pornography” according to the law of Canada; e.g., as opposed to that of the United States.
  • He himself “was able to determine” that the relevant user had “posted the images on the 12th day of March in the year 2016 between the (sic) 16:15:54 and 15:52:11 Hrs UTC”. That was very specific additional information apparently not initially obtained or relayed by the NCMEC or NCECC. (As noted above, NCMEC had only indicated the time at which the user had registered his or her user profile account with Twitter; i.e., at 16:15:34 UTC., and said nothing about the timing of the user posting the relevant 72 images to Twitter.) Moreover, Officer Rees then used that specific additional time information to apply for a production order “allowing Bell Canada to release the subscriber information on the IP address of 70.52.153.150 used on the 12th day of March in the year 2016 between the hours 16:15:54 and 15:52:11 (UTC)”. [Emphasis added.] In my view a reasonable inference, and perhaps the only reasonable inference, is that Officer Rees independently had reviewed the original user account on Twitter, during which he had confirmed the information he had received from others, (e.g., the IP address number and the fact it was indeed used to post the 72 images of child pornography), while obtaining further information, (e.g., the specific time period during which the images had been posted).
  • Officer Rees then took further steps, (e.g., through use of the production order he sought and obtained), to confirm that the relevant IP address was not only located in Canada, and within a group of IP addresses used by Bell Telephone, but specifically assigned to an “R. WISSINK” at the specified Britannia Street address in Stratford, Ontario.
• I do not share the view of defence counsel that the further searches and calls thereafter conducted by Officer Rees, in the course of his additional independent investigations, were “irrelevant”. To the contrary, through such means Officer Rees was able to confirm:
  • that the specified Britannia Street address was a private residence, currently occupied by a man named “Robert”, with a telephone number assigned to an “R. Wissink”;
  • that a man named “Rob Wissink”, originally from St Thomas but now residing in Stratford, was connected to the internet, (as reflected in his active Facebook account); ²⁹ and
  • that records of the O.P.P. indicated prior police contact, (inherently in Ontario), with a man having the name “Robert Herman Wissink”, whose middle name and surname contained components obviously corresponding to the user name “hermwiss1” and email address “hermwiss@yahoo.ca” employed by the user who had posted the relevant child pornography images to Twitter on March 12, 2016.
• In my view, the information obtained by the further investigation carried out by Officer Rees accordingly not only confirmed the accuracy of the information originally relayed by NCMEC and NCECC, (in turn relayed to Officer Rees by the O.P.P.), but provided further credible and reliable information permitting and supporting a finding of reasonable and probable grounds to believe that the relevant images of child pornography posted to Twitter by “hermwiss1” or “Herm WISS”, with the email address hermwiss@yahoo.ca, from a Canadian IP address used by Bell Canada, had been posted by the “R. Wissink” at the specified Britannia Street address in Stratford, Ontario, (to whom the relevant IP address specifically had been registered), who was likely to be:
  • the same “R. Wissink” with a telephone number registered to that same Britannia Street address;
  • the same male who answered the phone registered to that address and confirmed it was a private residence;
  • the same male who answered the phone registered to that address and identified himself as “Robert”;
  • the same “Rob WISSINK” who was from St Thomas but resided in Stratford, according to his current Facebook account; and
  • the same “Robert HERMan WISSink”, (capitalization intentional), with whom the O.P.P. had previously had contact in Ontario.

28It was said that the ITO sworn by Officer Rees did not contain information that was sufficiently recent to justify the granting of a search warrant in the circumstances.

29In particular, it was emphasized that the supposed offences were thought to have occurred on March 12, 2016, whereas the relevant search warrant was not sought until July 19, 2016; i.e., more than four months later.

30In the circumstances, defence counsel essentially argued that the passage of time effectively had rendered the ITO evidence capable of establishing nothing more than a mere possibility that evidence of the suspected offences, (i.e., possession of child pornography and making child pornography available more than four months earlier), would still be found in the specified Britannia Street residence of the accused, whereas the issuing of a warrant required the provision of evidence capable of satisfying the issuing justice that such evidence probably would still be found there.

31In my view, the passage of time did not have that suggested “stale-dating” effect in the particular circumstances of this case. In that regard:

• As noted above, many authorities confirm that the “currency” or “freshness” of evidence relied upon by the affiant of an ITO may indeed be important in determining whether the requisite reasonable grounds existed to issue a warrant authorizing a search of the targeted location.
• However, as also noted above, the same authorities confirm that the passage of time is not the only consideration. In other words, while time may be a constant, it does not have precisely the same “stale-dating” effect on ITO information in all circumstances. Much will also depend on the nature of the suspected offence, the evidence that is sought, and the location to be searched. In this particular case:
  • The suspected offences included possession of child pornography. The terrible images underlying such an offence are not inherently perishable or time-sensitive. To the contrary, time unfortunately has proven that images converted to electronic form, stored on computers and/or posted to the internet, can “last forever”.
  • Moreover, in contrast with many other “possession” offences where the relevant possessed item is beneficial to the offender primarily through disposition, consumption or other use that makes the offender effectively part company with the relevant item, (e.g., stolen funds, narcotics possessed for the purpose of trafficking, narcotics possessed for personal consumption, ammunition and explosives), possession of child pornography is an offence wherein the relevant offenders derive their perceived “benefit” from the viewing of such images, and such viewing does not inherently consume or destroy the possessed images. It accordingly is a possession offence wherein such offenders generally have an inherent inclination to retain rather than dispose of such offensive items/images, so that that they can be viewed repeatedly.
  • In this case, the particular user who posted the relevant child pornography images to Twitter on March 12, 2016, included comments in his or her user profile specifically confirming his or her personal “interest” in such images; i.e., giving rise to a reasonable inference that the suspect user would be inclined to retain the relevant images for his or her personal use. However, the particular user also included comments confirming an intention to keep the items on display for “judging by others”, and a desire to have others “follow” his or her postings in that regard. In short, the comments poste by the particular user in question indicated that he or she was inclined to retain the images not only for his or her own use, but also for the future use of others.
  • The suspected offences in this case, (i.e., possession of child pornography and making it available), self-evidently were committed through the use of a computer and messages conveyed via the internet. For reasons outlined in considerable detail by Officer Rees in his ITO, (based on information acquired through his extensive training and experience in the investigation of child pornography and child exploitation, and further information supplied by members of the Technological Crime Unit of the O.P.P.), evidence of the suspected offence targeted by the search warrant inherently was likely to be retained within computers, other storage media, peripheral devices, etc., and retrievable through forensic analysis, (notwithstanding possible attempts at deletion), for weeks, months or longer, until the storage space originally used for such items was actually re-used. ³⁰
  • In this case, the affiant of the ITO who was indicating a subjective or personal belief in the accuracy and credibility of the grounds for belief, and making inferences in that regard, was a police officer with significant training and lengthy experience in the investigation of child pornography offences, who was making use of immediate access to members of the O.P.P. Technological Crime Unit, and their considerable expertise in the forensic analysis of computers and related devices. The inferences Officer Rees made in that regard, (which might well elude a person without such training, experience and access to similar resources – including an issuing justice and/or a reviewing judge), are in my view entitled to some deference.
  • Having regard to the totality of all such matters outlined in the ITO, and/or in the reasonable inferences to be drawn from such matters, in my view there was credible and reliable evidence before the issuing justice capable permitting a finding of reasonable and probable grounds to believe that evidence of the offence probably would have a “shelf-life” exceeding four months, and therefore probably would be found within the computer and related devices likely to be found in the accused’s Britannia Street residence, given other indications that the accused appeared to be still actively engaging on the internet via Facebook. ³¹

32Many of my comments necessarily have focused on particular aspects of the ITO challenged by defence counsel, in support of her general submission that the ITO did not contain sufficient information upon which the issuing justice could have granted the warrant to search the specified Britannia Street residence of the accused, and the additional computers and further material/devices that were covered by the warrant, seized and searched.

33However, as emphasized above, that determination must be made having regard to the totality of the circumstances set forth in the ITO, including the reasonable inferences to be drawn therefrom. In that regard:

• I think there clearly was at least “some” evidence before the issuing justice, capable of being reasonably believed, that the suspected offences of possessing child pornography and making child pornography available were committed on March 12, 2018. Indeed, based on the evidence set forth in the ITO, (provided to Officer Rees indirectly by NCMEC, but which Officer Rees independently confirmed through his own independent investigation and direct evidence), it seems beyond dispute that someone posted images of child pornography on Twitter that day using the “hermwiss1” user account.
• I think there also clearly was “some” evidence before the issuing justice, capable of being reasonably believed, that the postings were made by Robert Herman Wissink, using a computer with an IP address registered to his specified Britannia Street address in Stratford, where he was still residing and actively using the internet, and where the computer and/or associated devices and material used to make the postings were still likely to be present, and still likely to contain evidence of the offence. The similarities between the name of the accused and the relevant user name and user email address, the IP address of the computer used to post the information, the telephone listing and discrete call inquiries made by Officer Rees, the active Facebook account, the nature of the offence, the nature of the material underlying the offence, the specific comments and indications of intention and inclination posted to the relevant Twitter user account, the nature of computers and associated devices, (in terms of their ability to retain information for lengthy periods of time despite attempts at deletion), and the ability of forensic experts in the Technological Crime Unit of the O.P.P. to retrieve such information, all support the same reasonable belief in that regard.
• Defence counsel noted the possibility of other reasonable scenarios, consistent with innocence of the accused. For example, it was emphasized that particular mobile computers and associated devices can be passed on to others, or shared by multiple users. In the particular circumstances of this case, for instance, someone other than Mr Wissink therefore may have borrowed or used the computer with the IP address registered to Mr Wissink, (perhaps in a location other than Mr Wissink’s personal residence), employed an email address or user name ostensibly associated with Mr Wissink for nefarious purposes, and/or borrowed or otherwise used the computer to download, store or send objectionable material between March 12 and July 27, 2016, all without Mr Wissink’s knowledge, participation or involvement. Such events may have occurred. However, as noted above, the possibility of such innocent alternative explanations and inferences does not mean that non-innocent inferences and beliefs available to the affiant and issuing justice, (i.e., that the suspected offences probably had occurred and that certain related evidence probably would be found on Mr Wissink’s computer and related devices, based on credible and reliable information), were unreasonable. As also noted above, the ITO is not required to establish proof of the statutory requirements for issuing a warrant beyond a reasonable doubt, or even a prima facie case in that regard. The appropriate standard is that of reasonable and credibly-based probability that asserted facts and inferences exist, with such determinations to be approached in a practical, non-technical and common-sense manner. I think that standard was met in the circumstances.
• In the circumstances, I should not interfere retroactively with the decision of the justice to issue the relevant search warrant.

34For the above reasons, I find that the relevant search warrant was valid, and that the resulting search of the accused’s residence was authorized by law.

35Again, there was no suggestion or evidence that the search conducted pursuant to the relevant search warrant was carried out in an unreasonable manner.

36I accordingly find no breach of the section 8 Charter rights of the accused.

SECTION 7 OF THE CHARTER

37As noted above, the breach of section 7 Charter rights alleged in Mr Wissink’s application was entirely dependent upon the alleged breach of the rights guaranteed to him by section 8 of the Charter.

38In the circumstances, as no breach of Mr Wissink’s section 8 Charter rights has been established, I find that the no breach of his section 7 Charter rights has been established either.

SECTION 24 OF THE CHARTER

39In the absence of any established breach of Mr Wissink’s section 8 or section 7 Charter rights, I find it unnecessary and inadvisable to engage in any analysis of whether and how s.24(2) of the Charter otherwise may have applied to exclude evidence located and seized through execution of the relevant search warrant.

Conclusion

40For the reasons outlined above, the pre-trial application brought by the accused is dismissed.

“Justice I.F. Leach” Justice I.F. Leach

Date: November 14, 2018

Footnotes

Footnotes

1. 1Neither defence counsel nor Crown counsel supplied me, in their material, with anything confirming that Officer Rees swore the relevant ITO affidavit, or indicating the date on which that had been done. Nor was such information conveyed expressly during the oral submissions of counsel. However, there appeared to be no dispute that the ITO affidavit had indeed been sworn by Officer Rees, and formed part of the material submitted as part of the application for a search warrant submitted on July 19, 2016. To the extent anything turns on it, I accordingly have proceeded on the basis that the affidavit was sworn by Officer Rees in the immediate prelude to the application for a search warrant being submitted to a justice on July 19, 2016.
2. 2For those unfamiliar with the term, “UTC” is a reference to the concept of “Coordinated Universal Time” (in English) or “Temps Universel Coordonné” (in French), with both denoted by an acronym (UTC) that corresponds precisely to neither. The term “UTC” represents an international compromise to use a constant acronym conforming to the common pattern of “UT” prefaced time notations making reference to variants of “Universal Time”. UTC actually is the primary time standard by which the world regulates clocks and time, and is not adjusted for daylight savings time. In countries where English is spoken, the former and more familiar term “Greenwich Mean Time” (or “GMT”) is often used as a synonym for UTC.
3. 3I note that the relevant definition includes, via s.163.1(1)(a) of the Code, “a photographic … or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) 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”.
4. 4I note that none of the material submitted to me, by defence counsel or Crown counsel, appears to contain any written indication or confirmation of the precise date upon which the application for the relevant search warrant was submitted to the justice for review. However, defence counsel indicated during the course of oral submissions that the relevant date was July 19, 2016, and that was not disputed by Crown counsel. As noted above, I therefore have proceeded on the basis the application for the search warrant was submitted on that date.
5. 5The material filed by defence counsel and Crown counsel included no written indication of when the warrant was issued, nor – as noted again shortly hereafter - any copy of the issued warrant, which no doubt would have revealed the date on which it was issued. It nevertheless self-evidently must have been issued between July 19, 2016, (the date on which application for the warrant apparently was made), and July 27, 2016, (the date on which the warrant apparently was executed).
6. 6I nevertheless also note that, to the extent those additional facts were not in evidence and actually not the subject of agreement by the parties, and success of the applicant’s section 8 Charter arguments depended on establishing possible deviation from such facts, any negative consequences flowing from failure to properly establish such facts by way of evidence or agreement should fall on the applicant accused. It was the applicant accused who, in the context of this application, had the burden of demonstrating invalidity of the relevant search warrant.
7. 7In doing so, defence counsel relied on authority such as Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.486, at page 502, wherein the Supreme Court of Canada has explained that sections 8 to 14 of the Charter are illustrative of deprivations of the rights to life, liberty and security of the person in breach of the principles of fundamental justice; i.e., the rights guaranteed by section 7 of the Charter.
8. 8See Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp.158 and 160.
9. 9See R. v. Collins, [1987] 1 S.C.R. 265 at p.278. In this case, there was no challenge to the statute authorizing the search, i.e., section 487 of the Criminal Code (“the Code”). Nor was there any challenge to the manner in which the search conducted pursuant to the warrant was carried out. The argument in this case was that the search was not lawful because the Justice of the Peace should not have issued the warrant.
10. 10See R. v. Boussoulas, 2014 ONSC 5542, [2014] O.J. No. 4525 (S.C.J.), at paragraph 5, and the authorities referred to therein.
11. 11See Hunter v. Southam Inc., supra, at pp.167-168; and Baron v. Canada, [1993] 1 S.C.R. 416, at pp.446-452.
12. 12See R. v. Debot (1987), 30 C.C.C. (3d) 207 (C.A.), at p.219, affirmed , [1989] 2 S.C.R. 1140, at p.1165; and R. v. Sanchez, [1994] O.J. No. 2260 (S.C.J.), at paragraph 29.
13. 13See R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paragraphs 3, 24 and 48; and R. v. Nero, 2016 ONCA 160, [2016] O.J. No. 1027 (C.A.), at paragraphs 157-159.
14. 14See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paragraph 46.
15. 15See, for example: Re Times Square Book Store and The Queen (1985), 21 C.C.C. (3d) 503 (Ont.C.A.), at p.512; R. v. Nguyen (2011), 2011 ONCA 465, 273 C.C.C. (3d) 37 (Ont.C.A.), at paragraphs 57-58; and R. v. Boussoulas, supra, at paragraph 12.
16. 16See R. v. Paryniuk, 2017 ONCA 87, [2017] O.J. No. 474 (C.A.), at paragraph 77.
17. 17See R. v. Sanchez, supra, at paragraph 20, R. v. Jacobson, [2006] O.J. No. 1527 (C.A.), at paragraph 22; and R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 (S.C.J.), at paragraph 47.
18. 18See, for example: R. v. Turcotte (1988), 39 C.C.C. (3d) 193 (Sask.C.A.); R. v Jamieson (1989), 48 C.C.C. (3d) 287 (N.S.C.A.); R. v. Adams, [2004] N.J. No. 105 (Prov.Ct.); and R. v. Chen, 2007 ONCJ 177, [2007] O.J. No. 1572 (Prov.Ct.).
19. 19See R. v. Chen, supra, at paragraph 19.
20. 20See R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.); and R. v. Chen, supra, at paragraph 21.
21. 21See R. v. Storrey, [1990] 1 S.C.R. 241 at p.251; and R. v. Sanchez, supra, at paragraph 30.
22. 22See, for example: R. v. Shayesteh, [1996] O.J. No. 3934 (C.A.), at paragraph 51; R. v. Ngo, supra, at paragraph 47; and R. v. Nero, supra, at paragraph 71.
23. 23See, for example: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p.1452; R. v. Araujo, supra, at paragraphs 54 and 57; R. v. Jacobson, supra, at paragraph 22; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraph 40; and R. v. Boussoulas, supra, at paragraphs 6 and 21.
24. 24See, for example: R. v. Araujo, supra, at paragraphs 19, 36, 40 and 50; R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 37; and R. v. Boussoulas, supra, at paragraph 9.
25. 25See, for example: R. v. Araujo, supra, at paragraphs 57-59; R. v. Morelli, supra, at paragraphs 41-43; and R. v. Boussoulas, supra, at paragraphs 8, 10, 11 and 13.
26. 26See R. v. Garofoli, supra, at paragraph 56; R. v. Araujo, supra, at paragraph 51; and R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.), at paragraph 74.
27. 27See R. v. Debot, supra, at paragraph 53; R. v. Sanchez, supra, at paragraph 20; and R. v. Chan, [1998] O.J. No. 4536 (C.A.), at paragraph 4.
28. 28See R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paragraph 8. As noted by the Saskatchewan Court of Appeal in R. v. Turcotte, [1987] S.J. No. 734 (C.A.), at paragraph 12: “If the search is found to be an unwarranted search, it does not necessarily follow that the search is unreasonable as contemplated by s.8 of the Charter. Similarly, a finding that there has been an unreasonable search does not mean that the evidence will be automatically excluded.”
29. 29Defence counsel submitted that there was no express indication in the ITO that the Facebook account was active. However, I think that indication is implicit or a reasonable inference when the relevant ITO references to Facebook are read carefully and in context. In particular, Officer Rees outlines his search for and discovery of the relevant Facebook account when describing various methods he obviously was using to obtain information pertaining to the current situation existing at the time of his further investigation; e.g., the existence of a current and active telephone listing for R. Wissink at the specified Britannia Street address, and the results of recent telephone calls made to that number by Officer Rees to confirm that it currently was a private residence and occupied by a male identifying himself as “Robert”. Moreover, the information provided in relation to the Facebook account is presented in the ITO via wording emphasizing the present/current status of certain information, in contrast to the past status of other information; e.g., through an indication that the Facebook social site “shows a Rob Wissink who resides in Stratford and was from the St Thomas area”. [Emphasis added.]
30. 30In my view, that specific and detailed information set forth in the ITO sworn by Officer Rees was sufficient to address the additional concerns, raised in cases such as R. v. Vu, supra, and R. v. Nero, supra, about the need for further information sufficient to permit the authorizing justice to find that there were reasonable grounds to believe that any computers and related devices discovered during execution of the search warrant would contain the evidence sought.
31. 31Defence counsel took issue with the wording of the ITO prepared by Officer Rees, insofar as it indicated that he “anticipated” that execution of the warrant “will afford evidence” (emphasis added) of the accused’s participation in the suspected offences. In particular, it was submitted that the circumstances did not suggest certainty. To the extent the officer was expressing “certainty” of outcome, I agree that assertion overshot the mark. However, I think such wording deficiencies fall within the reasonable latitude, described above, afforded to police officers who draft such ITO affidavits without the benefit of legal advice. The situation required only probability, rather than certainty. For the reasons outlined above, I believe the circumstances involved credible and reliable evidence, and reasonable inferences from that evidence, capable of giving rise to a reasonable belief in such probability, and that was sufficient.