R. v. Jonat, 2019 ONSC 415

Court File No. 15-363

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

HENNING JONAT

REASONS FOR DECISION

BEFORE THE HONOURABLE JUSTICE S.F. DUNPHY

on January 10, 2019 at Toronto, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF THE HONOURABLE JUSTICE S.F. DUNPHY DATED JANUARY 7, 2019

APPEARANCES:

J. Stanton Counsel for the Crown

D. Bains, P. Zbarsky, S. Biesbroek Counsel for Applicant

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

V O I R D I R E

REASONS FOR DECISION ON VOIR DIRE

1

Transcript Ordered: ....................January 10, 2019 Transcript Completed: ..................January 14, 2019 Ordering Party Notified: ...............January 15, 2019

THURSDAY, JANUARY 10, 2019

R E A S O N S F O R D E C I S I O N

DUNPHY, J. (Orally):

[1] Mr. Jonat is charged with one count of possession of child pornography, five counts of making child pornography available and one count of publishing child pornography contrary to s. 163.1(4), s. 163.1(3) and s. 163.1(2) of the Criminal Code. These reasons address a blended voir dire held at the trial opening to consider a number of applications by the accused to exclude some or all of the evidence proposed to be led by the Crown at his trial.

[2] The Crown has admitted a breach of s. 8 of the Charter by reason of having sought subscriber information from an internet service provider without a warrant, albeit having done so in accordance with the prevailing practice and jurisprudence prior to the decision of the Supreme Court of Canada in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, 2014 SCC 43. For the reasons that follow, I have also found that police violated Mr. Jonat's rights pursuant to s. 10(b) of the Charter when they continued to ask substantive questions of Mr. Jonat after he signified his desire to consult counsel. However, the first breach was clearly in good faith in accordance with the widely-held view of the law before the Supreme Court decision in Spencer. The s. 10(b) breach was clearly a breach of an important Charter-protected right. However, the R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32 analysis does not favour exclusion of any of the information obtained pursuant to the warrant. The impact of the breach upon the accused in this case was relatively minor. The Crown is not seeking to make use of any statements made by Mr. Jonat at trial. Mr. Jonat did provide an access password to his computer during the search. Police had already located the computer in question during their search and were authorized to search the contents of the computer by the warrant they possessed. The incriminating documents would have been discovered with or without the use of Mr. Jonat's password, the disclosure of which did no more than speed up the process of examination at the scene to some degree.

[3] I have examined and rejected the balance of the alleged breaches of the Charter raised by the applicant.

BACKGROUND FACTS:

[4] Mr. Jonat was arrested following an undercover investigation of users of a software platform that police knew to have become something of a hub for those seeking to acquire or exchange child pornography. The software platform GigaHub, offered free software to users who were able to contact each other through the platform, to conduct chats with each other if so inclined and to download files from others or allow others to download files from them on a peer-to-peer platform. Users of the platform are able to set up free, anonymous accounts using pseudonyms. Real names or addresses are not verified. Searchable profiles are created, enabling the user to create a persona and to advertise his or her interests and to search for and contact other users having similar interests.

[5] Police identified a user of the GigaHub platform with the username Stinger6ex as being someone with a growing network of contacts who was both seeking access to child pornography and apparently making child pornography available to others.

[6] Stinger6ex alone could decide which users he wished to contact and which users he was prepared to allow to view some or all of the files on his computer. Among the accounts of the operator of the Stinger6ex account chose to make contact with and to allow access to some of the files on his computer was accounts that were in fact operated by an undercover police officer. The folders made available to the undercover officer for review or downloading included a large number of photographs of nude children, including children engaged in sexual acts with adults. There can be no question that a number of photographs in question were child pornography as defined by the Criminal Code. Stinger6ex, thus far unidentified, was in possession of the child pornography and had made such child pornography available to others to view and download.

[7] The police were able to trace the IP address associated with Stinger6ex to a Canadian internet service provider using applications freely available to the public. An informal Law Enforcement Request in the form used pre-Spencer was sent to the ISP and revealed that the IP address used by Stinger6ex was registered to Mr. Jonat at an apartment in Toronto. Internet searches of the same username Stinger6ex, revealed a number of on-line dating profiles with the same username, some of which profiles included photographs of Stinger6ex. MTO records and a visit to the superintendent's office confirmed that Mr. Jonat lived at the address given by the ISP while a search of police databases provided a photograph of Mr. Jonat that appeared to match the photograph in the on-line dating profile of Stinger6ex. The superintendent of the building confirmed that Mr. Jonat lived in the apartment along with a woman who was apparently his spouse.

[8] A search warrant was sought and obtained. The warrant permitted a broad range of computer-related media to be seized and searched. On January 31, 2012 the warrant was executed and a cell phone, two computer hard drives from a single tower computer, two laptops and other storage media were seized.

[9] Mr. Jonat was detained at the outset of the execution of the warrant but had not yet been arrested. He was advised of his right to counsel and his right to remain silent. He was also advised that he would not be permitted to avail himself of the right to counsel immediately because he could not be allowed out of the sight of police during the search process and would require privacy to contact counsel. He acknowledged receipt and understanding of this advice. He advised police that he did not require counsel during the search.

[10] When he was asked about his use of GigaTribe he indicated that he did not wish to make a statement at that time. Later, he was asked for the log-in password to access his computer and provided it. The password was a time saver but not strictly necessary to the police investigators on the scene. While more time consuming, access could be gotten to the necessary information with the tools they had to hand given that the computer was powered on when police arrived. Using data extraction tools, police located Mr. Jonat's email password on the computer and that same password was used to access the Stinger6ex account at GigaTribe and change the password, thereby securing the account.

[11] Mr. Jonat was arrested and brought to the station. While at the station, the arresting officer sought and received permission to have a Level 3 search of Mr. Jonat performed. The search was conducted in a search room shielded from public view and was conducted without incident. Nothing was found, and no statements were made.

[12] Over the months following the seizure, police applied detailed search software to the examination of the computer and storage media seized. The two hard drives taken from a computer in what appeared to be the office in the apartment as well as a laptop identified as belonging to Mr. Jonat were found to contain a large number of images that are clearly child pornography, as well as a number of videos primarily depicting sex acts with children. It is not necessary to detail further the degrees of degradation and exploitation of the children depicted in these images. The remaining media and the other laptop were identified as belonging to Mr. Jonat's spouse and were not examined.

[13] Among the other items found on the two hard drives were copies of the same images loaded on to the dating profile of Stinger6ex located by police as part of their online searches. In addition, incidental evidence that the GigaHub software had been operated on that computer was found in the form of directories and file names with the name "Giga" in them. Police also located evidence that the computer had been used to access a number of Stinger6ex accounts established at Hotmail, Skype, Yahoo and GigaTribe. The same computer also accessed an email account with the username HenningJonat@hotmail.com.

ISSUES TO BE ARGUED:

[14] The applicants have raised the following issues on their applications:

a. Did the recording by an undercover police officer of certain on-line chats with a user identified as Stinger6ex without a warrant pursuant to s. 184.2(1) of the Criminal Code violate Mr. Jonat's rights under s. 8 of the Charter?

b. Ought the subscriber's name and address associated with the Stinger6ex IP address – obtained through an informal Law Enforcement Request of the internet supplier prior to the Supreme Court of Canada's Spencer decision – to be excluded from evidence pursuant to s. 24(2) of the Charter?

c. Did the police require judicial authorization to conduct allegedly extensive database searches regarding Mr. Jonat through (i) public sources i.e. the internet and search engines, or (ii) police and MTO databases arising from unrelated interactions with Mr. Jonat?

d. Was judicial authorization required to seize the Applicant's tenancy information from his landlord?

e. Was the search warrant invalid on its face?

f. Was the execution search warrant at Mr. Jonat's residence unreasonable by reason of the failure of police to allow him access to counsel during the actual search or by asking for the log-in password from Mr. Jonat after he indicated his desire to consult counsel?

g. Was Mr. Jonat subjected to a Level 3 search without reasonable grounds?

h. Were the searches of the seized items conducted after the date mentioned in the warrant unlawful searches?

DISCUSSION AND ANALYSIS:

(a) Did the recording by an undercover police officer of certain online chats with a user identified as Stinger6ex without a warrant pursuant to s. 184.2(1) of the Criminal Code violate Mr. Jonat's rights under s. 8 of the Charter?

[15] Section 184.2(1) of the Criminal Code requires judicial authorization for the "interception" of a "private communication" where either the originator or the intended recipient has consented to the interception. The applicant takes issue with two types of alleged interceptions of private communications that were part of the essential foundation of the search warrant. The applicant submits that (i) chat sessions between Stinger6ex and the undercover officer; and (ii) documents downloaded by the officer from folders made available to him by Stinger6ex on the GigaHub platform were both instances of private communications the interception of which required judicial authorization.

[16] The key to the analysis of this argument lies in the definition of "private communication" contained in s. 183 of the Criminal Code which applies, in its relevant parts, to:

any telecommunication, that is made... under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it...

[17] I consider the issue separately from the perspective of the chat sessions recorded and the image files made available for download by Stinger6ex and subsequently downloaded by the officer.

[18] The applicant submits that the chat sessions are analogous to text messages and are presumptively private. He points to the fact that the GigaHub platform requires the equivalent of a friend request to open communications as a further indication of a reasonable expectation of privacy associated with those communications. In this regard, the applicant relies very heavily upon R. v. Kwok, [2008] O.J. 2414. Kwok was a case where two persons having a chat in a public chat room moved the conversation to a private room not accessible to others. The court found in that case that the decision to move the conversation in this fashion gave rise to a reasonable expectation of privacy.

[19] The Crown on the other hand relies upon the very extensive analysis of the law in this area undertaken by Durno J. in R. v. Ghotra, [2015] O.J. 7253 (S.C.J.). I am persuaded by the reasoning of Durno J. in Ghotra, and in particular paragraphs 124 through 131, that the chat logs in this case were not interceptions of private communications.

[20] Unlike Ghotra, the conversation in this case began in the equivalent of a private chat room. There is no evidence as to what records, if any, are retained by GigaHub of messages exchanged between users. However, the conversations in this case occur through the software platform that has a chat feature allowing users within a network – each network is voluntarily created by accepting requests to join or inviting users to join. In all other respects, Ghotra is quite analogous. The factors that are most persuasive in my view:

a. The conversations in question were between two total strangers who had nothing but pseudonyms and a public but largely fictitious (in both cases) user profile;

i. The originator had no idea who the intended recipient was, what country he or she was located in or whether anything in his or her profile was any more legitimate than Stinger6ex had included in his own profile;

b. The medium of communication was essentially written and of a type that creates a potentially permanent record every time it is used;

i. Received messages are necessarily present and recorded in a log on the drive of the computer – they do not evaporate upon closing the file or re-booting the computer;

c. The medium is one where fiction or role-playing is common; and

d. The originator had no control or means of control over what the recipient would do or intended to do with what was being sent.

[21] It has long been public knowledge that police patrol such platforms as GigaTribe. It is indeed about the only way in which police can intercept and staunch the fire hose of child pornography that is spread through the internet. There is no evidence whatsoever as to the subjective expectation of privacy of Stinger6ex or Mr. Jonat assuming for these purposes that the two can be presumed to be one and the same. However, the nature of the communication as outlined above persuades me that the only reasonable expectation of privacy that a user such as Stinger6ex could have in relation to such communications was the expectation that his anonymous persona itself would remain impenetrable, whatever the intentions of the recipient. Nothing in the text of the chats themselves included any information tending to reveal the identity of Stinger6ex.

[22] I find little relevance in the case of R. v. Jones, 2017 SCC 60. Jones involved a request to access text message logs from a third party – the telecom carrier. There was no dispute in that case that the messages in question were private communications.

[23] I find that the chat logs were not private communications and thus not subject to the regime of s. 184.2(1) of the Criminal Code. The same conclusion applies with even greater force to the images made available for download by Stinger6ex. Nothing was sent by Stinger6ex. Rather, Stinger6ex configured GigaHub himself in such a fashion as to permit users designated by him to download – if and when they chose - any files or folders of files that he himself selected to make available for this purpose. The whole nature of the GigaHub platform – at least as used by pedophiles and child pornographers – is to facilitate the trading of images of this sort. Far from having an expectation that downloaded files would never be recorded or re-transmitted by the chosen recipient of such permission, Stinger6ex himself almost certainly acquired the images in a similar fashion and can have had no expectation but that the images would be similarly passed around by others.

(b) Ought the subscriber's name and address associated with the Stinger6ex IP address – obtained through an informal Law Enforcement Request of the internet supplier prior to the Supreme Court of Canada's Spencer decision – to be excluded from evidence pursuant to s. 24(2) of the Charter?

[24] The Crown has admitted that the procedure of using Law Enforcement Requests to obtain subscriber information from ISPs without a judicially authorized warrant breached the s. 8 Charter rights of Mr. Jonat. This admission was necessitated by the Supreme Court of Canada decision in Spencer which in turn overruled the prior authoritative decision of the Ontario Court of Appeal in R. v. Ward, 2012 ONCA 660 that had previously sanctioned the use of LERs. In Spencer, the Supreme Court dismissed the application to exclude under s. 24(2) where the evidence established that police were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose under the prevailing law at the time.

[25] The subscriber information obtained by the LER process lies at the root of the evidence amassed by the Crown in this case. The subscriber information provided the link between Mr. Jonat and Stinger6ex which in turn was the linchpin of the ITO that led to the warrant. The Crown's entire case against Mr. Jonat may fairly be described as arising from that information. Prior to the subscriber information provided through the LER process, the police had information that Stinger6ex possessed child pornography and had made it available to others, including the undercover officer. The police had information that the ISP associated with Stinger6ex was based in Ontario and that the IP address appeared to be located in Toronto. They had no name to link to the IP address absent the information provided by the LER process. Excluding the evidence arising from this would bring the Crown's case to an abrupt end.

[26] I find that the reasoning of Spencer in declining to exclude the evidence obtained in consequence of obtaining the subscriber information to be applicable to the present circumstances. The police acted in good faith in following the accepted practices applied at the time. Those practices appeared to be specifically authorized by applicable Federal legislation: Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. The information obtained was reliable and probative. The administration of justice is not brought into disrepute by failing to hold police to a standard of behaviour that the Supreme Court of Canada had yet to rule upon, but which was in compliance with a long-established procedure that had not been successfully challenged to that point. I also rely upon the persuasive reasoning of Code J. in Viscomi v. Ontario (Attorney General), 2014 ONSC 5262 and Laskin J.A. in the same case in relation to an application for bail pending appeal in United States v. Viscomi, 2014 ONCA 879. The Court of Appeal in R. v. John, 2018 ONCA 702 also upheld a decision not to exclude evidence obtained pursuant to an LER made shortly before the release of the Spencer decision.

[27] I would not exclude any evidence obtained by reason of the use by police of the LER procedure in this case pursuant to s. 24(2) of the Charter.

[28] I shall consider below whether, as the applicants contend, this Charter breach ought to be considered as part of a constellation of breaches that might tilt the s. 24(2) balance in a different direction.

(c) Did the police require judicial authorization to conduct allegedly extensive database searches regarding Mr. Jonat through (i) public sources i.e. the internet and search engines; or (ii) police and MTO databases arising from unrelated interactions with Mr. Jonat?

[29] In oral argument, the applicants did not press the issue of police doing public source internet searches in relation to Stinger6ex. Those searches revealed photographs in connection with dating profiles on various internet dating sites but did not reveal an actual name or address of Stinger6ex. The real complaint of the applicant arises from the fact that – by reason of the LER process – police had the subscriber's name and address and were thus enabled to conduct searches of police databases or the MTO. Given my findings in relation to the previous question, I find no need to address this objection further. I concur with the Crown that there is no reasonable expectation of privacy attaching to the accessing by police of the information contained in such databases: References R. v. Serré, [2011] O.J. 6411 (S.C.J.) at paragraphs 54 to 57 and R. v. Merritt, 2017 ONSC 80, [2017] O.J. 6924 (S.C.J.) at paragraph 189. At all events, nothing beyond confirmation of Mr. Jonat's address – already given by the utility – arises from the search of police databases.

(d) Was judicial authorization required to "seize" the applicant's tenancy information from his landlord?

[30] The applicant's attempted characterization of this issue rather begs the question. Police seized nothing in this instance. In the process of finalizing the ITO, police paid a visit to the apartment building that Mr. Jonat appeared to live in based upon the ISP information and MTO searches of Mr. Jonat's name. There was a risk that the information was dated – not everyone notifies the MTO or their ISP as promptly as they might of a move. There was a prior address for Mr. Jonat on record in police files indicating that he had moved since that first record was made. Police reasonably wished to verify that Mr. Jonat still lived in the building before executing a search warrant at what might turn out to be a stale address. A visit was paid to the building and the building superintendent was spoken to. The tenant information voluntarily conveyed by the building superintendent – that the unit was still occupied by Mr. Jonat and his spouse – was information that would be conveyed in many buildings by means of a directory listing in the lobby or by reviewing the names on the mail slots. In years past when people had telephones, a call to 411 or a review of the White Pages would reveal similar information.

[31] The suggestion that a warrant was required to complete this routine bit of due diligence prior to the expected execution of a search warrant is absurd. The Charter is intended to protect the individual from agents of the state exercising state authority in ways that violate certain identified fundamental rights. It is not intended to insulate citizens from the sort of routine inquiry by police that any collection agent or process server possessed of no state authority might undertake without breach of any law or norm of privacy. The obtaining of confirmation from the building superintendent that Mr. Jonat continued to occupy the address shown on recent utility billings i.e. his ISP and his driver's license, violated no reasonable expectation of privacy.

[32] In my view, no prior judicial authorization was required to undertake a routine address check in this fashion. PIPEDA specifically contemplates such investigatory inquiries. The routine confirmation of Mr. Jonat's address – already obtained from the LER process – did not breach any rights of Mr. Jonat under s. 8 of the Charter.

[33] Logically, this submission ties into the submission made in respect of the LER. Absent the results of the LER – which yielded Mr. Jonat's name and address as being the subscriber who accessed the internet on the occasions mentioned therein – the police would not have had Mr. Jonat's name nor an address to verify.

(e) Was the search warrant invalid on its face?

[34] The applicant raised three primary grounds upon which his submission that the search warrant was invalid on its face relies. None has any merit in my view.

[35] First, the applicant submitted that the failure of the ITO to have provided further information regarding the reliability of the software used to determine the IP address of Stinger6ex was fatal. Such software might have been unreliable such that the connection of Stinger6ex to the IP addresses upon which the LERs were based would be similarly unreliable.

[36] Reasonable grounds to believe that evidence would be found on the computers at the specified address does not require certainty. In fact, the software deployed by the undercover officer produced different IP address for Stinger6ex from each different session during which contact was made using the GigaTribe platform. Each of those different IP addresses returned an IP address issued by the same ISP and the ISP returned the same subscriber information on each occasion where an LER was issued requesting that information.

[37] Second, the applicant submitted that the delay between the last verified contact with Stinger6ex and the warrant was such that it was no longer reasonable to assume that data that may have been on the computer at the subject address was still there. There was some evidence – disclosed in the ITO – that Stinger6ex was travelling during December and that he had changed his profile picture in January 2012. Each time the user continued to show as having and IP address issued by the same ISP. I can find no reason to conclude that the passage of time and the change of user profile alone ought objectively to lead to the assumption that the pornographic images viewed on prior visits were no longer resident on the computer used by Stinger6ex.

[38] Third, the applicant submits that the warrant was simply overbroad. I do not accept this premise. The warrant contained eight paragraphs authorizing the searching of any electronic devices including computers and peripherals, authorizing the search of any information or data stored on electronic media, information showing a history of internet activities related to possession of child pornography, documentary, digital or other information suggestive of an erotic attraction to children. In oral argument, the applicant narrowed his objection to the open-ended nature of paragraph 4 of Appendix A that, in addition to the specific child-pornography related provisions of the other paragraphs, contained authorization to search for:

any computer files including but not limited to address/phonebooks, emails, diaries, chat logs, photographic film, video or computerized files.

[39] It is fair to observe that paragraph 4 of Appendix A is quite broad and indeed very likely "belts and suspenders" having regard to the quite focused but broad nature of the authority sought and conveyed in the other seven paragraphs. It is also fair to observe that the warrant was sought and obtained before the Supreme Court of Canada's decision in R. v. Vu, [2013] S.C.R. 657, 2013 SCC 60. I also note that Vu did not require that the authorizing justice specify a search protocol in advance. The warrant conveyed the necessary authority to search the premises for computers and other similar media and to search within such media for computer files containing evidence of child pornography. Given the nature of the forensic searching that is required to be undertaken – searching for active and deleted files still resident on the hard drive, for example – it is hard to see how much more specific the warrant could have been in advance. The difficulty that would attach to any effort to describe search protocols of a computer too narrowly in advance was aptly summarized by Cromwell J. in Vu at paragraph 57:

Second, requiring search protocols to be imposed as a general rule in advance of the search would likely add significant complexity and practical difficulty at the authorization stage. At that point, an authorizing justice is unlikely to be able to predict, in advance, the kinds of investigative techniques that police can and should employ in a given search or foresee the challenges that will present themselves once police begin their search. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice’s decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change.

[40] In point of fact, the search that was conducted was exactly the sort of search that occurred in John – a systematic review of images and documents with only the relevant ones being tagged and logged for evidentiary use.

[41] In my view, this warrant was facially valid.

(f) Was the execution of the search warrant at Mr. Jonat's residence unreasonable by reason of the failure of police to allow him access to counsel during the actual search or by asking for the log-in password from Mr. Jonat after he indicated his desire to consult counsel?

[42] Upon entering Mr. Jonat's premises pursuant to the warrant, police informed Mr. Jonat of the search warrant and described its general terms. He was detained during the search and was advised that police were there in relation to "possession and making available child pornography" and that they would be searching the computers, media, thumb drives or discs for child pornography. He was told "you don't have to say anything in answer to any of the charges" and that "anything that you do say can be given into evidence." He was then given a toll-free number and told that it was a number:

that will put you in contact with duty counsel for free legal advice. What that means if you don't have a lawyer... you can speak to a lawyer on the phone for free.

However, he was also told:

having said that, I can't let you call a lawyer from here, okay, because you have to have privacy and while we're doing our search warrant, we can't let you out of our sight

but that "if you get transported to the division, then we'll make the call there." He was asked if he understood and replied, "Yes, I do." He was also told, "if you have your own lawyer, you can call your own lawyer too" to which he replied, "for the search, no I don't need a lawyer."

[43] There is no issue that, at this point, Mr. Jonat was in a state of detention. He had been detained immediately upon the entry of police. The applicant takes issue with the failure of police to inform him of his right to counsel "without delay". While it is true that the words "without delay" were not actually mentioned, there is no magic to the form of words used if the substance was adequately conveyed.

[44] In the circumstances of this case – execution by police of a warrant in an apartment – the Crown submits that the explanation conveyed the substance of what "without delay" meant in the context. I agree. It was not practical in those circumstances to arrange for privacy and it was reasonable to ensure that Mr. Jonat remained in view of police while in the apartment. The items police were in the process of searching for were capable of being hidden or altered. A computer might be turned off, the power to the unit cut, a device might be wiped with a magnet. Any number of possibilities present themselves where a search is being conducted for the precise purpose of locating and securing for review such potentially volatile things as electrons arranged upon a storage medium. The officer correctly advised Mr. Jonat of the earliest opportunity that he would in fact have to contact counsel. In fact, Mr. Jonat was transported to the station and arrived there within one hour and five minutes of police first knocking at his door and he was processed past the booking desk and searching within a matter of a few minutes, a message was left with duty counsel on his behalf, the call was returned and the phone was in his hand in a private room within half an hour of his arrival at the station.

[45] While the informational and implementation requirements of s. 10(b) of the Charter are separate and distinct issues, my conclusions in this regard are informed by the extensive analysis of s. 10(b) and the "without delay" component in R. v. Devries, 2009 ONCA 477 even if Devries was concerned primarily with implementation rather than information. An accused who has been advised accurately of when and where access to counsel will in fact be afforded has been accurately and completely informed of his rights in accordance with s. 10(b) of the Charter where the information conveyed is, in the circumstances then present, accurate. In other words, it would be confusing and uninformative to advise an accused of a right to counsel "without delay" and then to say in the very next sentence "just not now". If not now, then when? The detained person in this case was told when and the Crown bears the burden – a burden I find it has discharged – of establishing that the "when" communicated was in fact "without delay".

[46] I find that Mr. Jonat was in fact afforded access to counsel without delay having regard to the circumstances of his detention and subsequent arrest and he was accurately informed of that right – in the context – by police.

[47] That conclusion does not end the inquiry, however.

[48] Subsequent to the foregoing exchange, Mr. Jonat was asked whether the computer at the end of the hall was his and whether anyone else had use of it. He affirmed the computer was his and that no one else used it. Later he was asked for and provided the log-in password for this computer.

[49] The Crown urges me to find that both communications by Mr. Jonat, made in response to specific questions asked by police, were the result of waiver of his right to counsel by reason of Mr. Jonat's statement that he did not need counsel "for the search". I am not convinced of that explanation nor of the informed nature of the alleged waiver. The police knew that Mr. Jonat wished to consult counsel and that he would have no opportunity to do so while the search was ongoing. Mr. Jonat could reasonably infer that the questions he was being asked were not substantive and did not bear on his rights – matters for which he rightly concluded legal advice would be required. In my view, and in the circumstances of this case, the questions asked by police after Mr. Jonat received his s. 10(b) caution ought not to have been asked and the responses given by him ought to be excluded from evidence.

[50] The question is, in my view, largely a moot one. The Crown has not and will not apply to introduce evidence of either statement given at trial. Given the circumstances, leave to do so would not be granted.

[51] It is true that the log-in password given was used to access Mr. Jonat's computer. On the evidence before me, I find that the harm to Mr. Jonat's legal rights was in fact slight. The password was not in fact necessary to access the computer even if having it saved some time that might otherwise have been needed to get around the missing password. I am satisfied on the evidence before me that such was eminently feasible and would in fact have been done absent the password. The police were in the process of executing a valid warrant and the password was, in that context, no more than a convenience. Further, the main reason a password was desired was to preserve flash memory of a computer that was already powered on when police arrived. All or substantially all – I have reviewed most but not all – of the images the Crown intends to rely upon at trial were found on the hard drive and not in flash memory.

[52] In conclusion, I find that there was a breach of an important Charter right. However, the impact upon Mr. Jonat was slight and is adequately addressed by the exclusion from evidence of the statements given by him at the scene – statements the Crown does not intend to adduce at all events.

(g) Was Mr. Jonat subjected to a Level 3 search without reasonable grounds?

[53] Mr. Jonat was subjected to a Level 3 strip search upon his arrival at the station. The decision to order that search was made by the booking sergeant. It is clear from the booking video that the decision was made in a fairly swift and routine fashion. The booking sergeant – now retired – explained his approach to the matter on the stand. His evidence was necessarily general – with the passage of seven years and given the large numbers of prisoners he would have been processing it would have been remarkable had he remembered much more. He clearly considered that the circumstances in which a prisoner who was being held for a show cause hearing and was to be transported to the general prisoner population warranted a search. In this, the sergeant was in good company. The Supreme Court in R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83 also recognized the:

reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment.

[54] That's at paragraph 96. Mr. Jonat was lawfully arrested. The decision to order a strip search was made by a senior officer. The reasons for ordering it – while summary – were articulated and rational. It was conducted at a police station in a manner that ensured the health and safety of all concerned. The officers conducting the search were of the same gender and no more than necessary (two). No force was required to conduct the search – Mr. Jonat was entirely compliant. It was conducted quickly and efficiently and in a manner that ensured that Mr. Jonat was not completely undressed at any one time. A visual inspection of his genital area only was performed. It was conducted in a private area set aside for the purpose. It was visible only to the corridor outside the holding cells but was not visible to any prisoners who may have been in the holding cells – and there is no evidence any were. While the door was ajar for security reasons, there is no evidence that any other person could or did observe the search. The booking video confirms that the search was entirely uneventful – Mr. Jonat was docile and compliant, showing no signs of distress before or after. No unusual noises are heard to emerge from the room. In short, the circumstances of this search satisfied each and every one of the PACE criteria approved in Golden at paragraph 101.

[55] The type of search conducted was reasonable in the circumstances and I am more than satisfied on the evidence that it was reasonably conducted. The search did not violate Mr. Jonat's rights under s. 8 of the Charter.

(h) Were the searches of the seized items conducted after the date mentioned in the warrant unlawful searches?

[56] The search warrant before me clearly contemplated subsequent forensic searches of the items seized. I find no merit in the suggestion that the examination of items seized needed to be completed within the time frame stipulated by the warrant to seize them. The warrant contemplated a review of the computer files for child pornography and other specified types of images or documents. There was no breach of the warrant or of the Criminal Code in proceeding in the manner done in this case.

DISPOSITION:

[57] The applications to exclude evidence are dismissed. I have found breaches of the Charter in relation to s. 8 and s. 10(b) arising from the gathering of the subscriber information – admitted by the Crown – and from the failure to hold off after the accused expressed a desire to consult counsel. Given the Crown's position that it will not seek to introduce any statement of the accused at all events, I find no further remedy under s. 24(2) is appropriate or necessary in the circumstances. Although the accused intended to identify a constellation of breaches of the Charter, I have found only two in this case both of which are unrelated to each other and one of which was admitted by the Crown.

...END OF VOIR DIRE

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, MICHELLE SMITH, certify that this document is a true and accurate transcription of the recording of R. v. Jonat in the Supreme Court of Justice held at Toronto, Ontario taken from Recording No. 4899_7-6_20190110_091151__10_DUNPHYS which has been certified in Form 1.

January 15, 2019

(Date) (Signature of authorized person)

This certification does not apply to specific formatting with regard to italicized headings and numbered paragraphs, which were judicially edited.