COURT OF APPEAL FOR ONTARIO

CITATION

R. v. O'Brien, 2023 ONCA 197

DATE

20230322

DOCKET

C69938

Simmons, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King
Respondent

and

John O’Brien
Appellant

Paul Socka, for the appellant

Andrew Hotke, for the respondent

Heard: February 6, 2023

On appeal from the conviction entered on June 14, 2021, and the sentence imposed on November 1, 2021, by Justice Elaine A.A. Burton of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1] A caregiver created pornographic images and videos of a seven-year-old child in her care. Police learned that she had been sharing images and videos with several individuals, including with someone using an IP address that was linked to the appellant, John O’Brien’s, home. On February 28, 2019, police obtained a warrant to search Mr. O’Brien’s home for electronic devices and related items, including notes of device passwords The execution of that warrant yielded evidence that led to Mr. O’Brien being charged with accessing child pornography over the previous eleven-month period.

[2] At his trial Mr. O’Brien applied to have the evidence secured during the execution of the search warrant excluded because of alleged breaches of the Canadian Charter of Rights and Freedoms. The trial judge found that the manner in which the search was executed contravened s. 8 of the Charter, and that during the search the police also breached ss. 9 and 10(b) of the Charter. The trial judge excluded evidence extracted from Mr. O’Brien’s iPhone after the trial Crown conceded its exclusion but held that the admission of the evidence secured from a Dell computer located in the house, as well as a seized USB thumb drive and photographs taken in the basement of the home would not bring the administration of justice into disrepute.

[3] On the strength of the admitted evidence, Mr. O’Brien was convicted of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code, R.S.C., 1985, c. C-46.

[4] Mr. O’Brien was sentenced, after a joint submission, to one year in jail followed by two years of probation, as well as ancillary s. 161 orders. The trial judge included two three-year s. 161(1) prohibition orders in Mr. O’Brien’s sentence that were not the subject of the joint sentencing position, namely an order pursuant to s. 161(1)(c) that he not have unsupervised contact with anyone under the age of 16 years, and an order made pursuant to s. 161(1)(d) that he not use the internet or other digital network.

[5] Mr. O’Brien appeals his conviction, arguing that the trial judge erred in her s. 24(2) decision by admitting the evidence that she did, thereby requiring a new trial. He also seeks leave to appeal the two s. 161 orders I have just described.

[6] For the reasons that follow, I agree that the trial judge erred in admitting evidence seized from the Dell computer. I would therefore allow Mr. O’Brien’s conviction appeal and order a new trial. Given this outcome it is unnecessary for me to comment on the sentence appeal. I will say no more about it.

MATERIAL FACTS

[7] On February 28, 2019, at approximately 9:00 a.m., Mr. O’Brien and his wife, Kathryn King, were awakened by banging on the door of their home, where they were sleeping. When Mr. O’Brien robed and answered the door, three police officers were present. They identified themselves, showed him the search warrant, which included the authority to search and seize electronic devices, and entered the house.

[8] It is unclear exactly what transpired during the search, which lasted slightly more than an hour and culminated in Mr. O’Brien’s arrest. The police officers had incomplete notes with “disappointing” gaps on several points, and although the trial judge found Mr. O’Brien and Ms. King to be credible witnesses, she found that they may not be entirely reliable because they were somewhat overwhelmed by events. In her reasons for decision, the trial judge described the factual claims of both parties in some detail but did not offer a complete factual narrative of the events.

[9] For their part, Mr. O’Brien and Ms. King described a highly intrusive police entry, with Ms. King in bed wearing only a tank top when the officers entered, yelling commands, directing Mr. O’Brien and Ms. King’s movements, separating them, and not telling them they were free to leave or that they did not require permission to undertake acts such as making coffee or going to the bathroom. They testified that almost immediately upon entry, the officers demanded the passwords to their personal electronic devices – in Mr. O’Brien’s case to his iPhone and Dell computer, and in Ms. King’s case to her iPhone. Mr. O’Brien and Ms. King testified that they provided the passwords, believing they were compelled to do so. With respect to the Dell computer that was kept in the basement, Mr. O’Brien testified that he followed an officer down to the computer and wrote the password down on a piece of paper.

[10] The officers denied separating Mr. O’Brien and Ms. King. D.C. Rieder testified that she advised Mr. O’Brien and Ms. King that they were free to leave. None of the officers had any recollection of asking for the passwords to the Dell computer, but D.C. Rieder testified that she asked Mr. O’Brien for the password to his iPhone after entering the home. She also believed that she obtained the password for Ms. King’s phone.

[11] D.C. Dunnill, the forensic computer examiner who was present during the search, confirmed that he accessed and previewed Mr. O’Brien’s iPhone with a password provided by another officer. He testified that upon executing search warrants for electronic devices, police routinely ask for passwords without explaining that it is unnecessary to comply, and without explaining what the consequences of compliance would be.

[12] D.C. Hagstrom testified that he gained access to the Dell computer using a password he found written on a piece of paper that was in front of the Dell computer.

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