COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pahle, 2020 ONCA 725

DATE: 20201110

DOCKET: C66393

Fairburn A.C.J.O., Trotter and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Pahle

Appellant

James Harbic, for the appellant

Erica Whitford, for the respondent

Heard and released orally: October 29, 2020

On appeal from the conviction entered by Justice A. Doyle of the Superior Court of Justice, dated December 11, 2017 and on appeal from the sentence imposed on January 7, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of one count of possession of child pornography. He was sentenced to a 15-month custodial term. He appeals from both conviction and sentence.

[2] The conviction appeal is predicated upon alleged errors in the trial judge’s Garofoli and Charter ruling arising in a search warrant used to search the appellant’s home, resulting in seizures of his computer and two memory cards. Those devices were subsequently searched and found to contain close to 10,000 images of child pornography. They also contained movies involving child pornography.

[3] In his able submissions, the appellant’s counsel maintains that the trial judge erred in her approach to the Garofoli ruling, specifically in her approach to the amplification of the information to obtain the search warrant, including the things that she excised from and added into it. We see no such errors.

[4] The trial judge clearly articulated the law on amplification and applied that law to the issues identified by the appellant.

[5] As to the Charter ruling, the trial judge found three specific s. 8 Charter breaches. The first two are known colloquially as a Branton error and a Spencer error. The trial judge also found a s. 8 Charter breach arising from the late filing of a report to a justice, stipulating the items seized.

[6] Despite these breaches, in careful and detailed reasons, the trial judge declined to exclude the evidence under s. 24(2) of the Charter. The appellant takes issue with the s. 24(2) ruling. We see no error in the trial judge’s approach.

[7] The trial judge set out the law governing a s. 24(2) analysis in some detail and carefully followed the three-prong Grant analysis. In the end, she properly weighed all factors for consideration and concluded that the evidence should not be excluded. We see no basis upon which to intervene.

[8] As for the sentence appeal, the appellant claimed that the sentence is harsh and excessive in light of the circumstances surrounding the offence and the appellant’s pre-existing medical condition. Again, we defer to the trial judge’s reasoning. These matters were taken into account by the trial judge and we see no legal or other error in how she approached the matter.

[9] We have been provided with fresh evidence from the appellant’s family physician that confirms that his medical situation remains the same. We see no basis on the record, including the fresh evidence, to interfere with the sentence imposed. We direct that the letter before this court be provided to the custodial authorities so that the appellant’s medical condition can be properly addressed by those authorities.

[10] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“G.T. Trotter J.A.”

“S. Coroza J.A.”