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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
CITATION: R. v. Harrison, 2020 ONCA 393
DATE: 20200618
DOCKET: C67506
Watt, Trotter and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Harrison
Appellant
Paul Calarco, for the appellant
E. Nicole Rivers, for the respondent
Heard: June 9, 2020 by teleconference
On appeal from the conviction entered on March 13, 2019 by Justice Harvey P. Brownstone of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant was convicted of accessing, possessing, and making child pornography available. The trial judge ruled that the search of the appellant’s residence did not infringe s. 8 of the Charter. He also found that, if the appellant’s s. 8 rights had been infringed, the evidence should not be excluded under s. 24(2). The appellant challenges the correctness of both decisions. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.
[2] By way of brief background, a police investigation revealed that the appellant lived in the “upper unit” of a house. The police suspected that it was a rooming house. They were concerned that more than one person could be using the internet account assigned to the appellant. The issuing justice was apprised of this information and authorized a search of all units in the house. When the warrant was executed, the police discovered five separate units or dwellings at the address. The appellant occupied a loft on the top level of the rooming house. The police seized his computer equipment and a phone on which they subsequently discovered images of child pornography. The police also asked the other occupants of the rooming house if they could inspect their devices, to which they all consented. Nothing sinister was discovered on these devices.
[3] The appellant attacks the search on three bases. First, he argues that the warrant was facially invalid and should not have issued because it was overbroad. The appellant looks for support in R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, in which, in their search for drugs, the police entered and searched the wrong unit in a multi-unit building. This case is different. It was reasonable for the police to be concerned that others in the rooming house could have had access to the appellant’s internet account: see R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 23. Unlike Ting, the warrant in this case allowed the police to search the entire premises, not just one part of it.
[4] Second, the appellant contends that the warrant was executed in an unreasonable manner. He submits that, when the police entered the address and discovered that there were five separate units (i.e., more than anticipated), they should have stopped and obtained a further warrant before continuing with their search.
[5] This argument was not made before the trial judge; it is raised for the first time on appeal. Nonetheless, we are of the view that the submission lacks merit. As noted above, the warrant authorized the search of the entire premises at the target address. Again, comparison with Ting is unhelpful because the warrant in that case targeted a particular unit in a multi-dwelling structure. Here, the police did what the warrant explicitly allowed them to do.
[6] Third, relying on R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, the appellant submits that, having seized the appellant’s computer equipment and phone, they were required to obtain a further warrant to search those items for electronic images. We disagree.
[7] The trial judge concluded that a second warrant was not required because the initial warrant implicitly authorized the inspection of any electronic devices that were seized. In fact, the warrant explicitly authorized the search of these devices. The warrant complied with Vu in authorizing the search of both the residence in which the devices were located and the subsequent examination of the devices: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 164; R. v. McNeill, 2020 ONCA 313, at paras. 53-59.
[8] In conclusion, the trial judge made no errors in his s. 8 analysis. Consequently, it is not necessary to address the appellant’s submissions concerning s. 24(2) of the Charter.
[9] The appeal is dismissed.
“David Watt J.A.”
“Gary Trotter J.A.”
“A. Harvison Young J.A.”