COURT OF APPEAL FOR ONTARIO DATE: 20231003 DOCKET: C66299

Hourigan, Thorburn and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Johnathan Townsend

Appellant

Counsel: Myles Anevich, for the appellant Matthew Asma and Kristen Pollock, for the respondent

Heard: September 25, 2023

On appeal from the conviction entered by Justice Michael N. Varpio of the Superior Court of Justice on April 20, 2017, sitting with a jury.

REASONS FOR DECISION

Introduction

[1] On August 8, 2013, the appellant stabbed the victim to death as he got into bed with her. After his arrest, the appellant admitted to the stabbing but explained that he had learned that the victim wanted to move out the next day, and this made him feel suicidal. According to the appellant, he brought the knife to bed to kill himself if the victim did not agree to stay with him. The appellant testified that, when the victim told him that she did not want to live with a rapist, he became angry and responded reflexively by bringing his knife-wielding hand down with considerable force on the victim’s neck. However, a subsequent search of the appellant’s computer provided evidence that, despite his claim, this was a planned and deliberate murder.

[2] At trial, the appellant brought a motion to exclude the evidence from the computer on the grounds that the search violated s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge found a s. 8 breach but did not exclude the evidence under s. 24(2). The appellant was convicted of first-degree murder. He appeals on the basis that the trial judge erred in not excluding the evidence obtained from the computer. [1] At the conclusion of the hearing, the appeal was dismissed with reasons to follow. These are our reasons.

Facts

[3] Several hours after the stabbing, the appellant asked his mother to pick him up from Algoma University and drive him to the Sault Area Hospital. The appellant had several bags with him, one of which contained his computer. He left these bags in his mother’s car and instructed her that they were for the hospital. At the hospital, the appellant was admitted on a 72-hour assessment. The appellant’s mother telephoned his father to inform him that the appellant was not doing well and that he would be going to the psychiatric ward. The appellant’s father decided to stop by the appellant’s apartment on the way to the hospital, as the appellant had a history of causing damage when he was in a bad mental state. He found the victim’s body in the apartment and called 911.

[4] The police interviewed the appellant’s mother who informed them about the bags in her car. She gave the police consent, on video, to seize these items. The bags were tagged and placed in an exhibit shed pending judicial authorization to search. A locker warrant was issued on August 20, 2013 to search the items seized between 9 a.m. and 9 p.m. that day. The warrant did not specify what was to be searched or how.

[5] The computer was analyzed by a detective who conducted two types of searches – a photo/video search and a keyword search of internet-based communications stored on the hard drive. These searches were commenced on August 22 and August 23, 2013, respectively, and the search results were reviewed over the course of a few months. The appellant’s communications discovered on his computer make plain that he intended and planned on killing the victim, either by poisoning her or stabbing her. Further, his internet history suggested that he was planning on committing murder. After the searches, the appellant’s charge was upgraded from second to first-degree murder.

Decision on Charter Application

[6] The trial judge found that the face of the warrant issued gave insufficient information and that it was unclear whether a technical search of communications, photos, and internet searches was authorized. There was no way to determine what the issuing justice deemed to be relevant, nor was there an attached schedule specifying what was sought. This constituted a s. 8 breach. Further, the warrant was limited to a narrow time window, and the actual data search occurred much later. As a result, the appellant’s s. 8 rights were also breached in this regard.

[7] The trial judge undertook a s. 24(2) analysis, reviewing the three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. In considering the seriousness of the breach, he started by observing that the defence did not argue that the ITO contained insufficient grounds to search the computer for communications or photographs. Thus, he found that if the police had described the nature of the evidence sought on the face of the warrant and the actual period required for the searches, there would not have been a Charter breach. The police had described the nature of the evidence sought with specificity in the ITO. For this reason, he deemed the breach in respect of the description to be purely technical and not substantive and the breach resulting from the failure to adhere to the time constraints to be minor. He also found that the police acted in good faith, and he emphasized that the law on locker warrants was not settled. Moreover, the trial judge held that the search was principled and disciplined, and that the lack of invasiveness pointed to a breach on the “lower-to mid-end of the ‘seriousness’ range.”

[8] The trial judge deemed the impact of the breach to be relatively minor. He found that the ITO provided sufficient grounds to support a search of the hard drive and that this was not a case where search parameters were necessary. Importantly, he found that the detective’s search did not go beyond the scope of relevant files, such that it would have conformed to the principles in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, which had not been released at the time of the investigation.

[9] Finally, the trial judge found that society’s interest in an adjudication on the merits was to be given considerable weight. The evidence uncovered on the appellant’s computer was the sole evidence capable of supporting a first-degree murder conviction, and the trial judge found it to be both probative and reliable.

[10] In balancing the three lines of inquiry, the trial judge found that “the breach was not particularly serious and its impact, in the circumstances of this case, was quite limited. On the other hand, society’s need to adjudicate was exceptionally high.”

Analysis

[11] The grounds of the appeal were narrowed considerably in oral argument. The appellant effectively conceded that the trial judge’s analysis under the second line of inquiry was unimpeachable.

[12] Regarding the third Grant factor, counsel submitted that the evidence from the computer was not the only basis on which the charges were upgraded. He noted that one of the officers testified that there were other grounds, although the officer did not specify what those grounds were. In our view, the trial judge was correct in finding that this factor militated in favour of admission. This was reliable and probative evidence that was important in demonstrating beyond a reasonable doubt that the murder was planned and deliberate.

[13] The focus of the appellant’s submissions was on the first Grant factor – the seriousness of the breach. The appellant raises two additional s. 8 arguments that were not advanced at trial in support of his contention that the police acted in bad faith. He submits that the initial seizure of the computer from the appellant’s mother was unlawful and that the police unjustifiably delayed filing a report to justice. While the circumstances of the seizure were the subject of a brief cross-examination of one of the police officers, these alleged breaches were not relied upon by trial counsel for the appellant as either Charter violations or factors to be considered in determining the seriousness of the breach.

[14] This court is not able to take these new arguments into consideration when assessing the trial judge’s analysis of the first Grant factor. The trial judge cannot be faulted for not considering an argument that was never advanced. Moreover, the Crown at trial had no notice of these claims, and consequently led no evidence and made no argument in defence of the seizure from the mother’s vehicle and of the filing of the report to justice. Thus, this court does not have the evidentiary record needed to properly adjudicate these new claims or to assess their impact on the seriousness of the breach. Therefore, we do not give effect to these arguments.

[15] In our view, the appellant has not established any error in the trial judge’s analysis or balancing of the Grant factors. We conclude that there is no basis for intervention by this court.

Disposition

[16] We note that the Crown also argued that the trial judge erred in finding that there was a s. 8 breach. It was unnecessary to consider this submission, given our conclusion on the s. 24(2) ground of appeal. The appeal is dismissed.

“C.W. Hourigan J.A.”

“Thorburn J.A.”

“J. Copeland J.A.”

[1] The conviction appeal challenges the trial judge’s ruling in a pre-trial Charter application, with reasons reported at 2017 ONSC 3435.