Court File and Parties

Court File No.: CR-21-657-00 Date: 2022 04 14 Ontario Superior Court of Justice

B E T W E E N:

HER MAJESTY THE QUEEN, Respondent Maria Stevens, for the Provincial Crown

- and –

JEREMY PIKE, Applicant Daisy McCabe-Lokos, for the Applicant Pike

Heard: January 10-11, February 7-9, 2022

Reasons on Charter Application

D.E. HARRIS J.

[1] This is the second Charter of Rights and Freedoms ruling in Mr. Pike’s case. In the first, s. 99(1)(a) of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.), was held to be of no force or effect as it applies to the search of personal digital devices at the border. As Mr. Pike’s 11 working digital devices were searched under this provision, his s. 8 Charter right against unreasonable search or seizure was violated.

[2] Two other Charter breaches are also alleged:

i. It is argued that Mr. Pike was “detained” early on during the secondary inspection and that he ought to have been informed of his right to counsel under s. 10 of the Charter;

ii. After an image of child pornography was observed, Mr. Pike was arrested. A search warrant was subsequently executed with respect to his devices. A complaint is made that the warrant did not disclose that nothing was found on most of the devices and that it was not executed within the time frame in the warrant,

I. The Alleged Section 10(b) Breach

[3] This ruling should be read in conjunction with the constitutional ruling in relation to s. 99(1)(a) of the Customs Act: R. v. Pike and Scott, 2022 ONSC 2297. The evidence with respect to Mr. Pike’s interaction with Border Services Officer (BSO) Grama in the secondary inspection area is summarized there in paragraphs 8-10, 81-85, 96.

[4] The salient facts are as follows. There was roughly a two-hour search of Mr. Pike’s devices commencing at 5:25 p.m. and ending with the discovery of one image of child pornography at 7:33 p.m. Initially, at about 5:22 p.m., BSO Grama requested Mr. Pike’s password for the computer. Mr. Pike was not told that he did not have to provide the password, nor was he given his right to counsel at this point. He provided his password and the search began. BSO Grama intended from the outset to search through all of Mr. Pike’s 14 devices.

[5] At 6:46 p.m., BSO Grama gave Mr. Pike his right to counsel. BSO Grama’s main reason for giving the right to counsel then was that Mr. Pike had already been physically detained for a substantial period and it was likely the detention would be significantly extended, as there were quite a few more devices to search. Also, according to BSO Grama, an additional reason was that Mr. Pike was becoming agitated. Mr. Pike declined to exercise his right to counsel at this point. He did ultimately contact counsel after he was arrested by Peel Regional Police.

[6] Ms. McCabe-Lokos contends that Mr. Pike was detained within the meaning of s. 10 of the Charter well before the 6:46 p.m. mark. It was her argument that there were several factual components which, taken together, led to a border detention by the time Mr. Pike was asked for his password.

II. The Law of “Detention” at the Border

[7] A brief discussion of the case law will assist in the resolution of this issue. The law has been clear since R. v. Simmons, [1988] 2 S.C.R. 495, 55 D.L.R. (4th) 673, 1988 CarswellOnt 91 (S.C.C.), that routine questioning at the border does not constitute a detention. Chief Justice Dickson said at p. 521 (para. 39):

I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.

[8] Also see R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.), at p. 207

[9] Several years after Simmons, the Supreme Court reaffirmed the law in Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R (4th) 654, 1993 CarswellNat 57 (S.C.C.), at pp. 1071-1074 (Carswell, paras. 36-43). Iacobucci J. held:

41 The questioning of the appellant was clearly distinguishable from an intrusive strip search. As Dickson C.J.C. stated at p. 517 [S.C.R.] in Simmons, supra, the degree of constitutional protection will be a function of the degree of intrusiveness of the search at issue. While the present case does not concern a search, but rather questioning, an analogy can be drawn. The questioning of the appellant was routine in nature, and concerned solely with his reasons for wishing to enter Canada, and the basis upon which he wanted to do so.

[10] It is accepted in the jurisprudence that, at some point, questioning and searches cease to be routine. The line can be difficult to draw with precision. It was not, however, particularly difficult in Simmons where the appellant was strip searched: see Simmons, at p. 521 (para. 38).

[11] In Simmons’ companion case, R. v. Jacoy, [1988] 2 S.C.R. 548, 45 C.C.C. (3d) 46, 1988 CarswellBC 1314 (S.C.C.), Chief Justice Dickson again found that the appellant had been detained within s. 10 of the Charter. It was held at pp. 557-58 (para. 17):

For the reasons given in R. v. Simmons, there is no doubt that the appellant was detained when he was ushered into the interview room by Inspectors Graham and Findlay. At this point the customs inspectors had assumed control over the movement of the appellant by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the appellant regardless of his responses to their questions.

[T]he decision to search the appellant, and to strip search him if necessary, had been made by the time the appellant entered the interview room. The appellant was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the appellant was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.

[12] The cases of strip search and bedpan vigil cited by Chief Justice Dickson fall into a distinct category in which there is clearly a detention. The highly intrusive physical nature of these searches dictate the result. In the more difficult cases where there has not been such a physical intrusion, Justice Doherty added some much-needed analytical heft to the determination of when detention occurs. In R. v. Jones (2006), 211 C.C.C. (3d) 4, 81 O.R. (3d) 481 (Ont. C.A.), at paras. 41-42, he held:

41 I think the proper distinction is between persons, like the appellant, who are not detained or subject to any violation of their reasonable expectation of privacy when the impugned statements are made and persons who are subject to detention, or interference with legitimate privacy expectations when statements are made. … Persons who have a reasonable expectation of privacy can expect that the state will respect that expectation and not interfere with that reasonable expectation. The existence of these rights and the legitimate expectation of privacy reflect the values of autonomy and personal privacy that underlie the protection against self-incrimination. If a person is compelled to answer questions at the border while under detention, or while his or her reasonable expectation of privacy is otherwise interfered with, a strong argument can be made that an attempt to use those answers in a subsequent criminal proceeding will run afoul of the principle against self-incrimination. That argument does not have to be resolved on the facts of this case.

42 …the extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see R. v. Jacoy (1988), 45 C.C.C. (3d) 46 (S.C.C.). As indicated above, if the person is detained, the assessment of the s. 7 self-incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result. [Emphasis added.]

[13] Also see R. v. Darlington, 2011 ONSC 2776 (Ont. S.C.), at para. 75 (6): “[C]onstitutional interests of self-incrimination and right to counsel become engaged where the generality and routineness of the screening exercise give way to more specific and intrusive measures”.

[14] In R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70 (Ont. C.A.), at para. 26, Justice Paciocco added another important element to the scrutiny of border detention:

26 It may be that for a detention to occur, another step is required. Namely, in addition to having a sufficiently strong particularized suspicion, and a subjective decision to engage in an intrusive investigation or detain the subject, the border services officer may have to engage in some action that makes that intention known to the traveller. This requirement is consistent with the foundation for the constitutional concept of detention, resting as it does in the physical or psychological detention of the accused: Simmons, at pp. 515–21. There is also authority, including the decision of this court in Kwok, to support the need for some act by the border services agent that indicates their intention to engage in more intrusive investigation or to detain the subject.

III. Application of the Law to the Evidence

[15] This is not a close case. I conclude that, at the time Mr. Pike’s computer password was requested and given to BSO Grama, he was detained within the specialized meaning of s. 10 of the Charter in the border context. Four factors compel this conclusion:

i. Despite his denials, I find that BSO Grama had at least reasonable suspicion that Mr. Pike was in possession of child pornography. I do not have to go further and decide whether he had reasonable grounds but that is quite likely the case. I conclude that BSO Grama had a “sufficiently strong particularized suspicion” as articulated within Jones.

ii. BSO Grama testified that, from the beginning, he intended to search all of Mr. Pike’s 14 devices (11 of which were working). This is reminiscent of Jacoy where there was a decision at the very outset to search. This intention was critical to the finding that Jacoy was under detention when he was ushered into the interview room.

iii. Providing the password at BSO Grama’s request was an action with significant legal consequences and contributes to the conclusion that a detention was imposed; and

iv. The psychological aspect emphasized in Ceballo was clearly present as BSO Grama’s intention to search was expressed directly to Mr. Pike and he was present for the search.

[16] I concluded in the s. 99(1)(a) ruling, at paras. 81-85, that there was at least reasonable suspicion that Mr. Pike had child pornography in his devices. I will briefly summarize the basis for this conclusion here. BSO Grama knew the following:

i. Mr. Pike had been previously sentenced to 15 years in jail for making child pornography;

ii. He had served 7.5 years of this sentence;

iii. His teaching licence had been revoked in Canada;

iv. He was returning from countries notorious for sexual tourism;

v. He had lied by saying he had been teaching adults rather than children;

vi. He had been teaching 7-year-old children;

vii. He was a single male travelling alone; and

viii. He had 14 personal digital devices with him.

[17] BSO Grama intended from the outset, based on this evidence, to search all of Mr. Pike’s devices. Canadian Border Services Agency’s (CBSA) “Policy on Port of Entry Examinations of Travellers’ Digital Devices” from November 2019, states that searches of digital devices should not be “conducted at a matter of course” but only if there is a multiplicity of indicators suggesting contravention” of the pertinent legislation. The 2015 Guideline used slightly different language to say the same thing. It stated a search should not be “routine”.

[18] This search was clearly not routine. It spanned 11 devices, was conducted with the use of Mr. Pike’s laptop, and took over two hours.

[19] In R. v. Nagle, 2012 BCCA 373, 97 C.R. (6th) 346 (B.C.C.A.), at para. 81, citing Jacoy, at pp. 557-58 (para. 17), it was held that detention occurs “once border officials have assumed control over the movement of [a traveller] by a demand that had significant legal consequences” (Emphasis added). In R. v. Canfield, 2020 ABCA 383, 395 C.C.C. (3d) 483 (Alta. C.A.), leave refused, it was held that the co-appellant Townsend was detained once he gave over his password:

134 Some 10 minutes after the inspection of Mr. Townsend’s luggage began, BSO Aboagye began examining his laptop. It was password protected, so she requested the password. Mr. Townsend was reluctant to give the password, but eventually did so. In less than ten minutes BSO Aboagye found an item of child pornography on the laptop; at that point she attempted to arrest Mr. Townsend under the Customs Act.

135 At some point in this interaction, the questioning of Mr. Townsend and the inspection of his belongings moved from routine screening to a more intrusive level of search and a greater invasion of privacy. That point may have occurred when BSO Atherton scanned Mr. Townsend’s cell phone to look for contraband items. In our view, the line to intrusive search, and the point at which Mr. Townsend was certainly the subject of “particularized suspicion”, was crossed when BSO Aboagye asked for the password to his laptop so she could conduct a more thorough search. At that point, Mr. Townsend was detained and should have been advised of his s 10 rights.

[20] The same conclusion must be made here. The accumulated grounds easily met the level of a strong particularized suspicion. The request and providing of the password reinforce the conclusion that Mr. Pike was detained by BSO Grama. I would note that Mr. Pike, without the advice of counsel, had no realistic choice but to hand over his password. The evidence before me suggests that the vast majority of travellers do the same. Travellers who are asked for their passwords are under psychological compulsion and have no practical choice but to supply their passwords: R. v. Therens, [1985] 1 S.C.R. 613, 45 C.R. (3d) 97 (S.C.C.), at para. 53; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 30-32; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 25-27, 113-117.

[21] The Applicant Mr. Pike should have been given his rights to counsel at 5:22 p.m. when his password was requested, but was not given his rights for almost an hour and a half, at 6:46 p.m.

IV. Additional Issues

[22] Mr. Pike’s devices were seized and a search warrant was issued for the purpose of forensic examination. There are two issues raised in relation to the search warrant: (1) The information to obtain (ITO) the search warrant only mentioned the discovery of the one image on the hard drive and did not mention that the other devices had all been searched without child pornography being found on them; and (2) Only one device was taken out of the storage locker within the time frame specified in the warrant, while the others were taken out days later.

[23] With respect to the alleged deficiency in the ITO, a list of all the devices found was included in Appendix A of the warrant. These items were the subject matter of the requested search. It was reasonably clear from the ITO that they had been searched manually. The ITO did not say, as it might have, that nothing had been found in the manual search conducted by the BSO.

[24] In order to gauge the importance of this, the question should be asked whether, if the information had been included, the omission would have had any bearing on the issuing of the warrant. In my view, the answer must be no. It would not have countered the grounds to search all the devices. As said in many of the cases, including R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), the full and frank disclosure required must be of the material facts. The failure to find child pornography on the other devices by way of a manual search had little bearing on whether a forensic search would turn up child pornography. It was not material. There were clearly grounds to search all of the devices no matter that nothing had yet been found on them.

[25] Although it may have been better to include a fuller picture of both the nature of the search conducted and the fact nothing had previously been found on the other devices, there as no s. 8 breach.

[26] With reference to the other issue, the warrant on its face was to be executed on February 28, 2020, on the locker room at the police station. The officer-in-charge testified he went in that day and took out one of the devices in order for it to be forensically examined. It was not until some days later, outside of the time scope of the warrant, that he went back and obtained the others. Once retrieved, the items were searched over a significant period of time.

[27] Strictly speaking, it might be said that there was a breach of the warrant by obtaining the devices after the February 28, 2020 time frame. However, in reality, the matter is trivial. There are a number of cases about deviating from the permitted hours of execution when, for example, the warrant is for a home. That can be quite a serious matter. In this case, the place was a police locker storage area. The items had already been seized from Mr. Pike. It was obvious they were going to be searched forensically and that would take some time. There is no question that the warrant was based on proper grounds. The manner of the search was reasonable.

[28] It is also argued that there was a violation of s. 11(e) of the Charter—the right not to be denied reasonable bail without just cause. Mr. Pike’s bail hearing was delayed for a day by reason of the Crown (not Ms. Stevens) asking for an adjournment to gather documents. In the circumstances, this is not a major issue and I do not propose to deal with it.

A. Section 24(2) Exclusion

[29] There are two main breaches: (1) The breach of s. 8 brought about by the use of s. 99(1)(a) of the Customs Act; and (2) The violation of Mr. Pike’s s. 10 Charter rights.

V. The Seriousness of the Breaches

i. The Section 8 Breach

[30] The more serious and deliberate the Charter violation, the more pressing the need for the court to denounce and disassociate itself from them. Public confidence in the judicial system demands no less. The weightier the offending conduct, the stronger the tendency to find that the breach was serious and that the evidence should be excluded: Grant, at paras. 72-75.

[31] The search of the devices under s. 99(1)(a) was done in good faith. The decision in Canfield striking the section down had not yet been released at the time of the search. The legislation was presumed valid. The customs officials were operating on the understanding that Simmons prevailed and, like other border searches, there was no need to meet a threshold in order to commence a search. This was entirely reasonable. Similarly, the court in Canfield held that the s. 99(1)(a) was done in good faith: at paras. 160-167. Both R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.), at paras. 69-71, and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (S.C.C.), at paras. 188-89, support the good faith finding in this case. The law has changed and customs officials cannot be criticized for not foreseeing that it would.

[32] On the other hand, in my view, the failure of BSO Grama to follow the CBSA notetaking policy in searching digital devices significantly increases the seriousness of the violation. The CBSA 2019 policy, at paras. 53-58, says it is essential to keep careful notes, referring to the directives of the Supreme Court of Canada in Vu and Fearon. It specifically indicates that the areas and items examined on a digital device should be recorded. Mr. Denis Vinette, Vice President of the Travelers Branch of CBSA, stressed in his evidence that notetaking is a cornerstone of a search and its importance is impressed on officers in the field.

[33] However, in “Crossing the line? The CBSA's Examination of Digital Devices at the Border” (October 21, 2019): Office of the Privacy Commissioner of Canada it is stated that in all six cases it reviewed, customs officials failed to record the areas of the devices that were searched (see para. 110). BSO Grama did not note digital paths or, for the most part, locations where he looked on the devices. He was not aware of the notetaking policy. That is disconcerting given the appropriate emphasis on the importance of notetaking.

[34] The failure to make adequate notes is serious. Justice Cromwell said in analogous circumstances in Fearon at para. 82:

In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective.

[35] The CBSA policy articulated by Mr. Vinette has a similar rationale.

ii. The Section 10(b) Breach

[36] The Canfield court held that the s. 10(b) violation was largely excused by law enforcement’s good faith in the same sense that the s. 8 breach resulted from the s. 99(1)(a) search power: see para. 165. The same cannot be said in these circumstances. The law with respect to the s. 10 right and detention at the border had crystalized well before Mr. Pike’s arrival in secondary. The key foundations of the common law derive from Jacoy in 1988, supplemented by Jones in 2006.

[37] The formulation of reasonable suspicion, if not reasonable grounds, and the request for the password required that the right to counsel be given to Mr. Pike before the search of the digital devices and before he relinquished his password. Mr. Pike was detained at that point. Although Mr. Pike declined to exercise his right to counsel when he was ultimately afforded it at 6:46 p.m, that does not mean that he would have declined before providing his password, a key milestone in the interaction with BSO Grama. It was understandable that he might have believed it futile to call a lawyer in the midst of an ongoing law enforcement search.

[38] The onus is on the Crown to show that Mr. Pike would not have contacted counsel if the right to counsel had been given when it should have been, before he was asked for his password: R. v. Bartle, [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83 (S.C.C.), at pp. 211-213 (paras. 52-56); R. v. Pozniak, [1994] 3 S.C.R. 310, 118 D.L.R. (4th) 205 (S.C.C.), at pp. 320-21 (para. 14). The Crown cannot meet their onus in these circumstances.

[39] BSO Grama persistently and adamantly denied that he had grounds to suspect Mr. Pike. He maintained in his evidence that he was neutral and was not judging. He said that he was not suspicious of Mr. Pike although he acknowledged that there were quite a number of “indicators”. As indicators are CBSA shorthand for grounds, there was a contradiction in this evidence.

[40] I reject BSO Grama’s evidence in this regard. I have found that there was an abundance of objective grounds to search arising out of Mr. Pike’s child pornography record and sentence, his lies, his travel history, and the number of devices he had with him, amongst other things. The grounds to detain and search, in my view, were strong. From the strength of the grounds viewed objectively and from BSO Grama’s determination at the outset to search all of the devices, I infer that contrary to his evidence, BSO Grama entertained a subjective suspicion with respect to Mr. Pike: see Glanville Williams, Textbook of Criminal Law (London: Stevens, 1978), at p. 102; R. v. Pappajohn, [1980] 2 S.C.R. 120, 52 C.C.C. (2d) 481 (S.C.C.), at p. 156 (para. 59) per Dickson J.

[41] This s. 10(b) breach is not clothed in good faith: Le, at paras. 143-148; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 (S.C.C.), at paras. 43-44. BSO Grama’s evidence was inaccurate and was directed to prevent a finding that he ought to have given the right to counsel earlier than he did.

[42] The right to counsel is a lifeline for detained persons both functionally and psychologically: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (Ont. C.A.), at para. 45. In this instance, the right to counsel could well have been more than just a source of comfort to a hypothetical person under the control of customs personnel. It could have prevented the search that was undertaken by the state. Had Mr. Pike spoken to a lawyer, it is likely that he would declined to give his password.

[43] In my view, the s. 10(b) breach was serious. BSO Grama’s prevarications on the issue of grounds increase its seriousness. He refused to agree to the obvious in an effort to disavow that there was a detention. A reasonable informed person would see this attitude as part and parcel of the seriousness of the Charter infringing conduct: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.), at para. 26; R. v. Hamid, 2021 ONSC 3227 (Ont. S.C.), at paras. 136-139.

[44] In conclusion, on the seriousness of the breach in the first step of Grant, there was good faith in initiating the search of the devices. The failure to make proper notes as per the CBSA policy was serious.

[45] The s. 10(b) breach is at the most serious end of the spectrum. There was little doubt that Mr. Pike was detained from the outset. Presuming as we must that he would have spoken to his lawyer before writing down his password, he would not likely have given over his password. The authorities then could not have used s. 99(1)(a) of the Customs Act to search the device. The plain wording of the section ensures that it can only be utilized “any time up to the time of [an individual’s] release” from customs. Only a forensic search can crack a device’s security without a password. A forensic search takes considerable time and could not have been done while Mr. Pike was being held in secondary. Thus, there was a causal relationship between the right to counsel breach and the search of Mr. Pike’s devices.

[46] Given the strength of the grounds and the particularized suspicion, not giving the right to counsel was a flagrant breach. In total, I conclude that the seriousness of the breach analysis leads to a mid-range conclusion towards exclusion of the evidence.

VI. The Impact of the Breaches

[47] In this step, the question is the extent of the invasion of privacy by reason of the s. 8 breach. With respect to the s. 10(b) breach, it is the affront to dignity and the contravention of the right against self-incrimination which are the focus.

[48] It must be inferred that the invasion of privacy by BSO Grama was extremely serious. This follows from the sheer duration of the search—more than two hours—and the number of devices examined (11). It is difficult to know how far-reaching within the devices the search was, as BSO Grama omitted to take adequate notes. That uncertainty weighs against the state. The intimate and all-revealing nature of the contents of a digital device renders the impact of the search on individual privacy significant.

[49] The right to counsel breach also had a major impact on the Applicant as described above. If Mr. Pike had spoken to counsel, there is a good chance that he would not have provided his password. A s. 99(1)(a) search then could not have taken place.

[50] The Canfield court, in a situation where the searches were not nearly as long, nor involving so many devices, and in which the s. 10 breach was of a totally different order, found the impact of the breaches tended to favour exclusion: Canfield, at paras. 168-179. I make the same finding here and conclude that this second step of the Grant test militates strongly towards exclusion.

VII. Society's Interest in an Adjudication on the Merits

[51] This factor always aligns in favour of inclusion of the evidence. If anything, that is somewhat increased by the extremely serious nature of this offence. Nonetheless, this factor is not generally enough to turn the tide if the first two Grant factors favour exclusion, as they do here: Le, at para. 142; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 (Ont. C.A.), at para. 63; R. v. Hillier, 2021 ONCA 180, 155 O.R. (3d) 214 (Ont. C.A.), at para. 42; R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265 (Ont. C.A.), at para. 81; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286 (Ont. C.A.), at para. 107; R. v. West, 2020 ONCA 473, 392 C.C.C. (3d) 271 (Ont. CA.), at para. 41; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114 (Ont. C.A.), at para. 46.

[52] Balancing the factors and looking at the issue from the long-term perspective of the reputation of the administration of justice, exclusion of the evidence is favoured. For these reasons, the data found on Mr. Pike’s digital devices is excluded from evidence.

D.E. Harris J.

Released: April 14, 2022