Court of Appeal for Ontario

Citation: R. v. Butters, 2015 ONCA 783

Date: 2015-11-17

Docket: C59550

Judges: Gillese, Watt and Pardu JJ.A.

Between:

Her Majesty the Queen Respondent

and

David D. Butters Appellant

Counsel:

Eric Granger, for the appellant

Melissa Adams, for the respondent

Heard: November 6, 2015

On appeal from the conviction entered by Justice David M. Paciocco of the Ontario Court of Justice on May 1, 2014.

Endorsement

[1] The appellant was convicted of two counts of possession of child pornography. On appeal, he submits that the trial judge erred by allowing into evidence images of child pornography found on his computer. He had taken his computer to a repair shop. As a technician was preparing to back up the data, he found what he thought was child pornography. His employer called the police. Constable Ethier came to the shop and viewed the images. He thought he had to do so himself to continue the investigation. The computer search without a warrant was an unreasonable search. The trial judge concluded that Cst. Ethier’s seizure of the computer was an unreasonable seizure because his subjective reasonable and probable grounds to seize it depended on his earlier unconstitutional viewing of the images.

[2] The trial judge excised Cst. Ethier’s own observations from the subsequent Information to Obtain a search warrant for the computer, and found that the report from the computer shop staff established a credibly based probability that child pornography would be found on the computer.

[3] He made the following findings:

• It was probable that a lay person claiming that an image was child pornography would be able to distinguish between sexualized images and innocent images;
• It was unlikely that someone would collect 30 innocent photos of naked young children;
• The business interest a computer shop would have in not reporting child pornography found on client computers supported the reasonable inference that, if a report was going to be made, it would not be based on marginal photographs.

[4] We agree with the trial judge that there were grounds upon which a warrant to search the computer could have issued.

[5] The trial judge also found that Cst. Ethier’s failure to report the warrantless search to a justice of the peace, contrary to s. 489.1 of the Criminal Code, violated the appellant’s Charter s. 8 rights.

[6] The trial judge sustained a subsequent search warrant for the appellant’s home on the same basis as the first, specifically that after excision of observations resulting from the unreasonable search, there remained a basis for the issue of the warrant.

[7] The trial judge held that despite the Charter violations, the evidence should be admitted.

[8] The trial judge found that the Charter breaches were serious and predicated on an unacceptable ignorance or disregard by police officers about basic matters.

[9] He found that the impact of the breaches on the appellant’s Charter protected interests, however, was modest. The expectation of privacy in the data on the computer was reduced as the computer had been taken to a repair shop and the appellant had provided the technicians with his Linux password. Further, objectively, Cst. Ethier had reasonable grounds to seize the computer without violating the Charter, pursuant to the exigent circumstances doctrine. The trial judge noted that the availability of Charter-compliant options did not make the breach more serious here, as the officer was not knowingly or recklessly choosing to breach the Charter.

[10] In considering the impact that exclusion would have on the repute of the administration of justice, the trial judge noted that the evidence was highly reliable and central to the case for the Crown.

[11] Ultimately, the trial judge admitted the evidence. He held that while a reasonable member of the public would not have been impressed by the actions of the police, he was “not satisfied that it would bring the administration of justice into disrepute in the eyes of reasonable people for this court to admit the evidence to enable this case to be prosecuted on its merits.”

[12] The trial judge’s ruling admitting or excluding evidence pursuant to s. 24(2) is entitled to deference absent an error in principle, a material misapprehension of the evidence relevant to the ruling, or a clearly unreasonable conclusion. R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 50.

[13] We see no such error. The appeal is dismissed.

“Eileen E. Gillese J.A.”

“David Watt J.A.”

“G. Pardu J.A.”