Court of Appeal for Ontario

Date: 20231114 Docket: C68159

Before: Tulloch C.J.O., Sossin and Copeland JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Daniel Neill Appellant

Counsel: Breana Vandebeek, for the appellant James Clark, for the respondent

Heard: October 12, 2023

On appeal from the conviction entered on September 7, 2018 by Justice Steve A. Coroza of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] The appellant argues that the application judge [1] and the trial judge [2] erred in dismissing two applications to exclude evidence that the appellant argued was obtained in breach of his s. 8 Charter rights. The first application concerned the warrantless seizure of the appellant’s Blackberry device (“the Blackberry”). The second application concerned the search warrant subsequently issued to authorize the seizure of the Blackberry from the police property bureau and its forensic analysis by the Tech Crimes Unit to search for evidence of the offences of possession of and making available child pornography. The evidence that the appellant sought to have excluded was extracted from a memory card in the Blackberry. Police forensic analysts were unable to crack the security on the Blackberry. As a result, they were unable to ascertain if the device itself contained relevant evidence.

[3] After hearing oral submissions from the parties, we dismissed the appeal with reasons to follow. These are our reasons. We address first the warrantless seizure of the Blackberry, and then the search warrant for seizure from the property bureau and forensic analysis of the Blackberry.

[4] The appellant argues that the application judge erred in finding that exigent circumstances existed to seize the Blackberry without a warrant and in rejecting the appellant’s contention that the police “created” exigent circumstances in the sense which concerned this court in R. v. Phoummasak, 2016 ONCA 46, 346 OAC 9, at para. 14. We disagree. We agree with the application judge that this was not a situation in which it can be said that the police had grounds to obtain a search warrant, and chose not to obtain one, but instead chose to pursue other investigative steps for the purpose of creating exigent circumstances.

[5] The application judge made factual findings that amply supported his conclusion that there were exigent circumstances that authorized the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code. These findings included:

• that when the police initially attended at the motel where they had information that the appellant was staying, the nature of the physical area was such that they could not conduct surveillance from a location close enough to make an identification without their surveillance being visible. They saw a male exit the motel room, but were unable to identify him as the appellant. The male left the motel in a vehicle and the police followed;
• that the police were concerned as they followed the male that they may be detected because they were following him on open rural roads. The male stopped at a bank and went in. The police had to park in a spot not far away to maintain observation, which they believed made it more likely they would be detected;
• that the male then drove to a Tim Hortons and went inside. The police became concerned that the male had been in the Tim Hortons longer than they expected. At that point, one of the officers went into the Tim Hortons to see if the male was their person of interest (and reviewed the photo in police possession before entering). It was only when the officer went into the Tim Hortons that he was able to positively identify the male as the appellant – their person of interest;
• that when the officer identified the male as the appellant, he observed him holding and looking at a Blackberry. This was the first time that the police saw the appellant with the Blackberry;
• that the police had reasonable and probable grounds to seize the Blackberry, but that those grounds did not crystalize until the police were able to identify the appellant at the Tim Hortons and they observed him with the Blackberry in his hand (events which occurred simultaneously);
• that at that point, reasonable and probable grounds to seize the Blackberry existed, as well as exigent circumstances;
• the finding that reasonable and probable grounds existed was based on the information provided by American authorities regarding child pornography offences connected to the appellant – connected by his name, by two social media accounts, and by a photo of the appellant which was in the possession of the local police service, and which appeared to be the same person as in videos posted on the two social media accounts linked to the child pornography. In addition, the application judge noted that the last access to one of the relevant social media accounts was made on a device with a Research in Motion IP address, which was an indication that a Blackberry device had been used;
• the finding that exigent circumstances existed was based on the officers’ concern, which the application judge found was reasonable, that the appellant had become aware of their surveillance, and their honestly and reasonably held belief that it was necessary to seize the Blackberry because there was imminent danger of loss or destruction of evidence on the Blackberry if they did not seize it, and there was not time at that point to obtain a warrant;
• that the police put the Blackberry in airplane mode when they seized it to prevent remote destruction of evidence, but did not attempt to view any of the data on it until the warrant for forensic analysis was later obtained – in the words of the application judge: “The officers did not make even a cursory examination of the cell phone.”

[6] The application judge correctly turned his mind to the legal test for a warrantless search based on exigent circumstances, referring to R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 27, and Phoummasak, at para. 12 (see also the subsequent decision of this court in R. v. Hobeika, 2020 ONCA 750, 153 OR (3d) 350, at para. 34-36, 42-43 and 54-55).

[7] The appellant does not contest that the officers had reasonable and probable grounds to seize the Blackberry, but argues that the application judge erred in finding that exigent circumstances existed. We disagree. The findings made by the application judge were open to him based on the record which was before him. This court has recognized that substantial deference must be paid to a trial judge’s findings about whether there was an imminent risk that evidence could be destroyed: Hobeika, at para. 45. In light of the application judge’s factual findings, we see no error in his conclusion that exigent circumstances existed to justify the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code, or with his finding that this case did not involve a situation where police created exigent circumstances.

[8] We turn next to the warrant to seize the Blackberry from the police property bureau and to authorize forensic analysis of its contents. The trial judge found two s. 8 violations, [3] but found that admission of the evidence obtained from the Blackberry would not bring the administration of justice into disrepute. As a result, he did not exclude the evidence under s. 24(2) of the Charter.

[9] The appellant argues that the trial judge erred in failing to find two additional s. 8 breaches. First, the appellant argues that the trial judge erred in finding that Charter-infringing language on the outdated search warrant form used by police in this case could be severed to preserve the validity of the warrant. Second, the appellant argues that the trial judge erred in failing to find that there was a s. 8 breach due to the forensic analysis of the Blackberry having been carried out after the time period listed in the warrant. The appellant argues that the cumulative impact of these asserted breaches, taken together with the two s. 8 breaches found by the trial judge, warrants exclusion of the evidence from the forensic analysis of the Blackberry.

[10] We consider first the language in the search warrant form. As noted above, the warrant was issued in order to seize the Blackberry from the police property bureau and transfer it to the Tech Crimes Unit for forensic analysis. The warrant form in this case (“Form 5”) included language authorizing the police to seek “evidence in respect to the commission, suspected commission or intended commission of an offence under the Criminal Code” (emphasis added to show the impugned language). However, the offences for which the warrant was issued were particularized to specify possession of child pornography and making available child pornography, “to wit: graphic computer files”, “on or between July 31, 2013 and December 23, 2013”. The search warrant also contained on its face terms and conditions specifying that the warrant authorized analysis of the Blackberry for data involving the listed offences, and included direction as to the types of data the police were authorized to search for. The specific offences and the terms and conditions were included in appendices A and B to the search warrant. These appendices formed part of the search warrant order. They were specifically referred to in the Form 5 search warrant order signed by the issuing justice. The trial judge found that copies of appendices A and B were attached to the search warrant as issued.

[11] In R. v. Branton (2001), 154 C.C.C. (3d) 139 (C.A.), at para. 35, this court held that language on a search warrant form referring to the “suspected commission or intended commission of an offence” exceeded the statutory power of search authorized by s. 487 of the Criminal Code, and rendered the search warrant invalid on its face.

[12] Before the trial judge, the Crown conceded that, in light of Branton, the form used was in error. However, the Crown argued that the Information to Obtain (the “ITO”) clearly specified in Appendix A that the affiant “had reasonable grounds that the items in Appendix A [the Blackberry] will be found at [the police property bureau]”, thus, specifying the constitutional minimum standard.

[13] The trial judge found that the police conduct in using the outdated search warrant Form 5 was “careless”. However, he found that, on the record before him, the error was harmless because there was no risk that the overbroad wording on the Form 5 allowed for an overbroad search. The officer who was the informant for the ITO, and who attended pursuant to the warrant to seize the Blackberry from the property bureau and transfer it to the Tech Crimes Unit, was the lead officer on the investigation and one of the officers involved in the initial seizure of the Blackberry from the appellant. His investigation was focused on public posting of images of child pornography. The trial judge found that there was “no chance that [this officer] would have been misled by the error in the form.” Relying on the decision of Fairburn J. (as she then was) in R. v. Nguyen, 2017 ONSC 1341, at paras. 115-16, the trial judge applied the principle of severance and found that the use of the Form 5 with outdated language did not render the warrant invalid.

[14] The appellant argues that the doctrine of severance should not have been applied; rather, a s. 8 breach should have been found and questions about whether the overbroad language actually had any impact or would have caused confusion about the scope of the search authorized should have been considered in the s. 24(2) analysis.

[15] In some cases, trial courts have applied the doctrine of severance in circumstances involving a Branton error; in other cases, trial judges have declined to sever the offending portion of a warrant: Nguyen, at paras. 115-16; R. v. Nurse and Plummer, 2014 ONSC 1779, at paras 35-39 (affirmed on other grounds without reference to this issue, 2019 ONCA 260, 145 O.R. (3d) 241); R. v. N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.), at paras. 333-36; R. v. Kramshoj, 2017 ONSC 2951; R. v. Persaud, 2016 ONSC 8110. Whether or not severance is an appropriate remedy is a fact-specific analysis.

[16] In the circumstances of this case, we see no error in the trial judge’s conclusion that the language of “suspected commission or intended commission of an offence” in the Form 5 was severable from the balance of the search warrant and that there was no risk of an overbroad search. In addition to the reasons given by the trial judge, we note Appendix B to the search warrant particularized the offences for which it authorized the seizure and forensic analysis of the Blackberry to completed offences of possession of and making available child pornography in the past. This removed any risk that an officer acting under the warrant would search for evidence of suspected or intended offences.

[17] The second argument raised by the appellant in relation to the search warrant is that the police failed to comply with the time period set out in the search warrant. The search warrant authorized seizure of the Blackberry from the police property bureau “between 6:00 a.m. and 8:59 p.m. on April 23, 2015”. The police attended in that time frame to seize the Blackberry from the property bureau. However, the analysis of data from the Blackberry was not completed until May 4, 2015. As noted above, Appendix A, which formed part of the search warrant, included terms and conditions specifying that the warrant authorized analysis of the Blackberry for data involving the listed offences, and included direction as to the types of data. However, there was no time frame specified for the forensic analysis of the Blackberry. On appeal, the appellant maintains the argument made before the trial judge that the warrant should be read as requiring that the forensic analysis of the Blackberry be completed between 6:00 a.m. and 8:59 p.m. on April 23, 2015.

[18] The trial judge found that there was no s. 8 breach because the terms of the search warrant provided for a time frame for the seizure of the Blackberry from the property bureau (which the police complied with) but did not specify a time frame for the forensic analysis of the Blackberry. Relying on the decision of Paciocco J. (as he then was) in R. v. Barwell, 2013 ONCJ 460, the trial judge found that where a warrant specifies a time frame for seizure of an electronic device from a police locker or property bureau, but does not specify a time frame for the forensic analysis, the timing of the forensic analysis is governed by ss. 489.1 and 490 of the Criminal Code (reports to a justice and detention of things seized by police). The trial judge found that police complied with the time specified in the warrant to seize the Blackberry from the police property bureau. He further found that the forensic analysis was completed while the detention order made for the Blackberry after it was first seized was still in force. As a result, he found no breach of s. 8 on this basis.

[19] We see no error in the conclusions of the trial judge that the police complied with the terms of the warrant, which only included a time for when the police were to seize the Blackberry from the property bureau; that the warrant did not specify a time frame for the completion of the forensic analysis; and that the Blackberry was still subject to the detention order after the initial report to a justice at the time the forensic analysis was completed. As with the use of the outdated Form 5, the trial judge’s conclusions were fact-specific findings, grounded in the specific wording of the search warrant in this case. The decisions of R. v. D’Souza, 2016 ONSC 5855, at paras. 162-90, and R. v. Little, at paras. 154-61, relied on by the appellant, are distinguishable from this case. In each of those cases, based on the specific wording of the warrant – which was different than in this case – the trial judge found that the time frame specified in the warrant applied to the forensic analysis process. The appellant did not argue either before the trial judge or in this court that the absence from the warrant of a specific time frame for the forensic analysis of the Blackberry to be completed violated s. 8 of the Charter.

[20] Finally, even if the appellant were correct that the trial judge ought to have found two additional s. 8 violations, it would not change the outcome of the s. 24(2) analysis in relation to the evidence obtained in the forensic analysis of the Blackberry based on the search warrant. The Blackberry was lawfully seized pursuant to s. 487.11 of the Criminal Code. It is not disputed that the search warrant ITO contained reasonable and probable grounds which supported the issuance of a warrant for a forensic analysis of the Blackberry in relation to the specified child pornography offences. No search of the contents of the Blackberry was undertaken prior to obtaining the search warrant. Even if there were technical flaws in some of the steps taken by police in relation to the warrant, those flaws had, at best, a negligible impact on the appellant’s privacy interest in the contents of the Blackberry. The evidence obtained from the forensic analysis of the Blackberry was reliable evidence essential to the Crown’s case. In the circumstances, admitting the evidence of child pornography images found on the Blackberry would not bring the administration of justice into disrepute.

[21] The appeal is dismissed.

“M. Tulloch C.J.O.” “L. Sossin J.A.” “J. Copeland J.A.”

Footnotes

[1] Reasons of Dawson J. reported at R. v. Neill, 2016 ONSC 4963.

[2] Reasons of Coroza J. (as he then was) on the s. 8 application reported at R. v. Neill, 2018 ONSC 5323.

[3] The two s. 8 breaches found by the trial judge were the following. First, the trial judge found that in making a report to a justice pursuant to s. 489.1(1) of the Criminal Code seven days after the warrantless seizure of the Blackberry, the police failed in their duty to make a report to a justice “as soon as is practicable”. He found that this failure to report as soon as practicable was unreasonable. Second, he found that the failure of the police to make a report to a justice in relation to the electronic evidence (data) obtained from the forensic analysis of the Blackberry was contrary to s. 489.1(1) of the Criminal Code. He found this was unreasonable and a breach of s. 8 of the Charter. We note that the Crown argues in response to the appeal that the trial judge erred in finding that s. 489.1(1) of the Criminal Code imposes an obligation on the police to make a report to a justice in relation to electronic evidence obtained through the forensic analysis of an electronic device pursuant to a search warrant. We do not find it necessary to consider this legal issue in this appeal. It is better left to be considered in an appeal where it may have some impact on the outcome.