WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

DATE: 20200515 DOCKET: C64168

Miller, Fairburn and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

P.W. Appellant

Counsel: Richard Litkowski, for the appellant Scott Patterson, for the respondent

Heard: January 30, 2020

On appeal from the convictions entered on June 24, 2016 and the sentence imposed on September 29, 2016 by Justice Dale Parayeski of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1] The main issue raised on this appeal is the admissibility of evidence obtained from a search of a residence executed under an invalid search warrant. The search resulted in the seizure of three computers containing child pornography.

[2] At trial, the Crown conceded that the warrant to search the residence was invalid. Accordingly, the search constituted a breach of the appellant’s rights under s. 8 of the Charter of Rights and Freedoms, which protects against unreasonable search or seizure. However, after undertaking the requisite analysis under s. 24(2) of the Charter, the trial judge determined that the evidence ought not to be excluded. The trial judge was satisfied that the admission of the evidence would not bring the administration of justice into disrepute. The appellant was subsequently convicted of possession of child pornography and accessing child pornography, with the latter conviction stayed pursuant to the principle in Kienapple v. R., [1975] 1 S.C.R. 729. He was sentenced to 6 months in jail and 18 months’ probation, along with various ancillary orders.

[3] The appellant appeals against conviction on the basis that the trial judge made a number of errors in the s. 24(2) analysis. He also appeals a 10-year prohibition order pursuant to s. 161 of the Criminal Code.

[4] For the reasons set out below, the appeals are dismissed.

A. Background

[5] Detective Abrams of the Hamilton Police received a report from the Catholic Children’s Aid Society on February 22, 2010. It documented an allegation made by L.W., the appellant’s six-year-old daughter, to her mother, Y.Z., about the appellant washing L.W.’s “bum” and “private parts” with his bare hand. The CCAS and the Hamilton Police started a joint investigation.

[6] Detective Abrams received a memorandum from a CCAS caseworker, and subsequently spoke with the caseworker by telephone. She also interviewed the complainant and her mother. L.W. told Detective Abrams that the appellant had been placing his finger in her anus and that he sometimes put it up “higher” than other times. She said that it hurt.

[7] Y.Z. informed Detective Abrams that in March of 2006 she had discovered that the appellant had been viewing child pornography on his computer. At some point thereafter, the appellant and Y.Z. separated. In June of 2006, the appellant voluntarily sought treatment at the Clarke Institute with respect to his use of child pornography, and a doctor from the Clarke Institute contacted the CCAS on June 13, 2006 to express concerns about the appellant’s sexual interest in girls under the age of 16 years. Thereafter, Detective Abrams was told, the appellant’s access to L.W. and her brother took place under the supervision of the CCAS. Later, that condition was withdrawn and the appellant was able to have unsupervised access to his children.

[8] The complainant and her brother told the police that the only things present in their father’s home were a bed, a computer chair, and three computers. From time to time, the complainant was alone with the appellant at his home.

[9] The appellant was arrested on March 4, 2010 for sexual assault. Detective Abrams swore an information to obtain a warrant authorizing a search of the appellant’s residence, and in particular, a search of his electronic devices for child pornography. The Information to Obtain set out that these searches “will afford evidence with respect to the commission of” offences involving the sexual assault and sexual touching of L.W. Detective Abrams deposed that “[t]hese items will assist in the sexual assault investigation where [L.W.] is a victim.” She also deposed that the items would “also possibly afford evidence of the commission of the offence of child pornography.”

[10] The search warrant was granted. The appellant’s residence was searched and three computers were seized. Pornographic images of children were discovered on one or more computers. The police found no pornographic images of L.W. or depictions of sexual assault against L.W.

[11] At trial, counsel for the appellant challenged the search warrant on the basis that the affiant, Detective Abrams, had misled the issuing justice. The appellant was granted leave to cross-examine the affiant. The cross-examination was limited to two areas: (1) what records from the CCAS were in the possession of the affiant when the ITO was sworn, and (2) the affiant’s belief that a search of the appellant’s computers would yield evidence of a sexual assault on L.W.

[12] The affiant agreed that she was only investigating allegations related to sexual touching at that time, and not child pornography. This is clear from the ITO, where the alleged sexual offences against L.W. were the only ones listed as being under active investigation. The ITO was also clear that the affiant believed on reasonable grounds that the search would afford evidence with respect to those offences.

[13] Detective Abrams testified on the voir dire that her investigative objective was to find evidence that would corroborate the young complainant’s account. The following exchanges demonstrate this objective:

Q. I’m going to suggest to you, Officer, that what you were hoping by drafting this ITO is that you would find child pornography on the computers, correct?

A. Part of that is correct, yes. I was hoping I would find pornography of his daughter to corroborate her statement is what I was hoping for.

Q. […] In your mind, the link between the allegations regarding [L.W.] and the offences that you thought the computers would afford evidence in relation to, that was you might find child pornography in relation to [L.W.], of his daughter?

A. Of evidence in relation to a sexual assault against his daughter, yes.

[14] Although the affiant acknowledged that she had not articulated in the ITO her rationale for believing that the appellant’s computers would contain evidence with respect to the commission of the alleged sexual offences, the following exchange made the reason for her belief clear:

Q. […] You were just, basically, speculating that there might be pictures there?

A. I wouldn’t say I hoped that there would be a victim, no. What I would say is that I was looking for evidence that would corroborate his daughter’s allegations of a sexual assault against her, and that was based on previous experience, based on training that I had taken, that there would be child pornography on computers that somebody with a history of child pornography had.

[15] When asked during cross-examination what evidence from the computers she expected to find, the officer answered, “Pornographic pictures of the victim.” When asked why, she answered:

Because it was a sex – the allegations were sexual in nature. The victim was under the age of 16 or… and his history with the child pornography, the information that was given to me about his preference, his sexual preference, as well as cases that I had previously worked on involving sexual assault victims and child pornography and courses that I had attended to prior to March of 2010.

[16] The affiant also expressed that she was aware the appellant took photographs of his young children that had been posted on Facebook, and that he spent time alone with his six-year-old daughter at his apartment that contained the computers. She also expressed the view that any child pornography contained on the appellant’s computers could “corroborate his sexual interest in children.”

[17] At the conclusion of evidence on the s. 8 voir dire, the Crown conceded that there was a s. 8 breach. According to the trial Crown, while there were sufficient reasonable grounds for the search warrant to have issued, the affiant had failed to properly articulate those grounds in the ITO. The Crown characterized the nature of the s. 8 breach as technical: a failure to articulate all the reasons underlying her genuine belief that a search would yield evidence with respect to the commission of sexual assault on L.W.

[18] The appellant argued that the affiant was instead using the allegations made by L.W. to obtain a search warrant to further a child pornography prosecution, “essentially going on a fishing expedition”. He argued that the reasons she articulated in support of the search warrant were fabrications.

B. Decision of the Trial Judge

[19] Applying the test for exclusion of evidence in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge ultimately found that the admission of the evidence would not bring the administration of justice into disrepute.

[20] With respect to the seriousness of the Charter-infringing state conduct, the trial judge rejected the appellant’s argument that the affiant had fabricated her evidence as to “what she had in her mind at the time of drafting the affidavit.” He found that “to some extent the officer was rationalizing on the stand, but I am not prepared to equate that with lying.” He concluded:

On balance, while I am not impressed with the drafting efforts of the officer, I am not prepared to consider them proof of bad faith. Negligence perhaps, but not bad faith. The breach does not reflect at all well upon the officer or her training, but it was not egregious. I am aware that good faith is but one factor in the analysis; however, it is not an insignificant one.

[21] The trial judge noted that he did not believe the breach was committed on the basis of either unreasonable error or ignorance as to the scope of authority: “It would be going [beyond] the evidence to affix such labels to what happened here. I do not imagine that the Supreme Court of Canada [in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 55,] intended that any police error is automatically to be considered proof of bad faith.”

[22] With respect to the impact of the breach on the Charter-protected interests of the appellant, the trial judge found it to be significant. Finally, the trial judge found society’s interest in an adjudication on the merits to be strong given the reliability of the images and their centrality to the Crown’s case.

C. Issues on Appeal

[23] On his conviction appeal, the appellant accepts that the trial judge articulated the correct legal test with respect to a s. 24(2) analysis, but argues that the trial judge made four errors in applying that test:

i) Finding the officer was “perhaps negligent” and that the officer’s conduct “does not speak well of her or her training” but not finding such conduct constitutes a serious violation that favours exclusion of the evidence;

ii) Understating the impact of the Charter violation on the appellant’s interests;

iii) Overemphasizing the reliability of the evidence and its necessity to prove the Crown’s case; and

iv) Failing to follow dicta from this court that where the first two Grant factors favour exclusion, the state’s interest in an adjudication on the merits will seldom tip the balance in favour of admissibility.

[24] On sentence, the appellant requests that the 10-year s. 161 order be substituted with a five-year order. He argues that the trial judge abused his discretion in giving a 10-year order.

D. Conviction Appeal

[25] The trial judge’s s. 24(2) conclusion is entitled to deference absent an error in principle, a palpable and overriding factual error, or an unreasonable determination: Grant, at paras. 86, 127; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 39; R. v. Buchanan, 2020 ONCA 245, at para. 21. It is not the role of an appellate court to re-weigh the factors in the Grant analysis: Mack, at para. 41. As explained below, we do not agree that the trial judge made any reviewable error in his s. 24(2) analysis.

[26] In Grant, the Supreme Court set out the framework for assessing whether evidence obtained in a manner that breached a Charter right should be excluded. The framework requires trial judges to consider the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the public interest in having an adjudication on the merits.

(1) Seriousness of the Charter-Infringing State Conduct

[27] The appellant argues that the trial judge found the affiant’s drafting of the ITO to be negligent, and then erred by treating that negligence as equivalent to good faith, contrary to R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, at para. 143. He argues that the affiant was negligent, that this negligence approached bad faith, and that it ought to be treated in the same register as a finding of bad faith.

[28] We do not agree. What matters at this stage of the analysis is that the trial judge appropriately judged the nature of the conduct in question. As Doherty J.A. explained in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 41, “[p]olice conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights […] What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.” In any event, the trial judge did not excuse the affiant’s poor drafting on the basis that she wrote the ITO in good faith. He was aware that the affiant’s drafting fell short of what was needed by the issuing justice; he was critical of it, finding that it amounted to “[n]egligence perhaps”. But he rejected the submission that the affiant fabricated her evidence in cross-examination, and he accepted her testimony that she believed the searches of the appellant’s computers could further her investigation of L.W.’s complaints.

[29] The nature of the problem with the drafting of the ITO was not that it was misleading, but that its reasoning was elliptical, leaving out some propositions that explained why the affiant concluded there were reasonable grounds to believe there could be child pornography on one or more of the computers in the appellant’s apartment, and why, in these particular circumstances the presence of child pornography on the computers would further the investigation into the alleged sexual assault of the appellant’s young child.

[30] Section 487(1)(b) of the Criminal Code allows a warrant to issue if there are “reasonable grounds to believe that there is in a building, receptacle, or place […] anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence”. The meaning of “evidence with respect to the commission of an offence” was explained in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 15, as “anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability”.

[31] In the circumstances of this case, we do not accept that the authorization to search the appellant’s computers was nothing more than a fishing expedition. Although he had sought treatment, the appellant had a known previous predilection for child pornography relating to females under 16 years of age. While his treatment at the Clarke Institute had ended, the appellant had been transferred to a counsellor in the community and, as the affiant said in the ITO, “[t]he name of that counsellor and the status of that treatment is unknown at this time.”

[32] Moreover, the appellant had been previously barred from seeing the complainant other than in the presence of another adult because a physician from the Clarke Institute had told the CCAS that there was a concern with the appellant’s “sexual interest in girls under the age of 16 years” and that he “posed a risk to young girls in that age group.” There were three computers in the apartment. He was alone in that apartment with the young complainant from time to time. She alleged that at least some of the sexual assaults took place at that location.

[33] In the unusual circumstances of this case, it was open to the police to seek prior authorization to search the computers for the very reasons articulated by the affiant on the voir dire. The appellant had an established problem relating to child pornography; the appellant had previously received limited access to the young child because of those difficulties for which he had sought treatment; the child was alleging that she had been sexually assaulted by the appellant while alone in his apartment; and the alleged conduct was in proximity to the computers to be searched. In these circumstances, although she failed to articulate her reasoning, the affiant had reasonable grounds to believe that there would be evidence of child pornography on the computers and that this evidence would be rationally connected to the investigation into the alleged conduct relating to L.W.

[34] Clearly, any child pornography images of the young child would provide evidence of the alleged offences. Moreover, the affiant believed that the presence of any child pornography on the appellant’s computers would assist the police in assessing the plausibility of the complainant’s account because it would go some distance towards establishing the appellant’s continued sexual interest in young girls. Although that evidence may not have been admissible at trial, search warrants are not designed to obtain only admissible evidence. The affiant was concerned with ensuring the veracity of the complainant’s account. She determined that the presence of child pornography on the appellant’s computer could assist in satisfying herself of the child’s version of events. Again, in the unusual circumstances of this case, that rationale is sustainable.

(2) Impact on the Charter-Protected Interests of the Appellant

[35] The appellant observes that the second line of inquiry under Grant, involving the seriousness of the impact of the breach on his Charter-protected interests, was “significant”, militating in favour of exclusion. On our reading of the reasons, the trial judge agreed with this assessment, concluding that the impact on the appellant’s Charter rights was indeed significant. Accordingly, there is no basis to find that the trial judge erred in this analysis.

(3) Public Interest in Adjudication on the Merits

[36] The appellant advances two arguments related to this final branch of the Grant test: (1) the trial judge overemphasized the reliability of the evidence in deciding to admit it, and (2) the trial judge failed to follow this court’s dictum from R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, that where the first two branches of the Grant inquiry favour exclusion, the third inquiry will seldom tip the balance in the other direction.

[37] As we find no error in the trial judge’s conclusion on the first branch of the Grant analysis, the McGuffie argument fails.

[38] With respect to overreliance on the reliability of the evidence of child pornography on the appellant’s computers, the appellant effectively asks this court to redo the balancing that was properly the domain of the trial judge. The appellant has not identified any basis which would entitle us to do so.

[39] Accordingly, the conviction appeal is dismissed.

E. Sentence Appeal

[40] The appellant seeks leave to appeal a portion of his sentence, namely the order under s. 161 of the Criminal Code imposed for a 10-year period. The appellant submits that the length of the order is excessive considering that: (1) the appellant has no prior criminal record and has a positive employment history; (2) in 2005, he demonstrated some measure of insight into the issues leading to the commission of the offences by seeking treatment at the Clarke Institute; (3) the passage of 6 years between the charges and the disposition of the case; and (4) the impact of the criminal process on the appellant. He seeks a s. 161 order of 5 years.

[41] The imposition of a s. 161 order is discretionary, and this court should not interfere absent an error in principle or the imposition of an order that is demonstrably unfit and unreasonable in the circumstances: R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537. The appellant has not identified any basis to interfere with the s. 161 order, and we would decline to do so.

F. Disposition

[42] The appeals against conviction and sentence are dismissed.

“B.W. Miller J.A.”

“Fairburn J.A.”

“Thorburn J.A.”