Publication Ban Warning
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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20240321 DOCKET: COA-22-CR-0461
Tulloch C.J.O., Feldman and Monahan JJ.A.
BETWEEN
His Majesty the King Appellant
and
Matthew Pulford Respondent
Counsel: Andrew Hotke, for the appellant Paul Socka, for the respondent
Heard: November 8, 2023
On appeal from the acquittal entered on November 22, 2022 by Justice Martha Zivolak of the Ontario Court of Justice.
Feldman J.A.:
[1] The respondent was acquitted of three counts of possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C., 1985, c. C-46 and one count of making child pornography available contrary to s. 163.1(3), following a Garofoli application where the search warrant authorizing the search of the respondent’s home was found to be unlawfully obtained and the evidence obtained on the search was excluded under s. 24(2) of the Charter of Rights and Freedoms.
[2] The Crown asserts that the reviewing judge erred first by finding a breach of s. 8 of the Charter based on defects she found in the Information to Obtain, and second by excluding the evidence under s. 24(2).
[3] I agree with the Crown. For the reasons that follow, I would allow the appeal, set aside the findings of the reviewing judge, admit the evidence and order a trial of the charges.
Background Facts
[4] A search warrant for the respondent’s home was issued on February 3, 2020 by a justice of the peace, based on the application of the affiant of the ITO, Detective Constable Baglieri of the Hamilton Police Internet Child Exploitation unit (“ICE”). The ICE unit had received information from the National Child Exploitation Crime Centre (“NCECC”) that an internet user using the names “Nudist Girls” and “NGirls8” had uploaded video clips of nude pubescent and prepubescent female children to YouTube and Twitter between September 24 and September 27, 2019. The video clips were flagged by the NCECC as suspected child pornography.
[5] The Hamilton ICE unit sought and obtained court production orders for the subscriber information associated with the IP address used by the uploader of the videos. The production orders identified that the IP address associated with the video clips was assigned to Martha Pulford at a Hamilton address.
[6] DC Baglieri reviewed the video clips that were contained in the NCECC reports and concluded that they constituted child pornography. He attested that two of the clips met the definition of child pornography in s. 163.1(1) of the Criminal Code, and provided the following descriptions of the two clips in the ITO:
i. Video with Filename: dKbblVEpjlO.mp4 is 1 minute and 20 seconds long and shows a group of pubescent and prepubescent girls standing in a line and holding numbered cards. The girls are believed to be between 8-16 years of age and are completely nude. It appears as though they are being judged in some form of pageant. At one point the camera zooms in and focuses on the breasts and vaginas of some of the girls;
ii. Video with Filename: jTt4rCM8pdO.mp4 is 15 seconds long and shows a prepubescent girl, believed to be approximately 8 years old, standing and being interviewed by an individual with a camera and microphone. She is completely nude and is holding a numbered card. It appears that she is being judged in a competition or pageant of some kind. The camera eventually zooms out exposing her breasts and vagina.
[7] The search warrant was executed on February 5, 2020. The respondent was home at the time and identified himself as the uploader of the videos. Officers seized a number of devices from the home, which contained 238 images and 49 videos identified as child pornography (190 unique images and 48 unique videos). The respondent was arrested and charged with the offences described above.
[8] The respondent brought a s. 8 Garofoli application, challenging the search warrant, before the reviewing justice of the Ontario Court of Justice. The respondent raised two issues: 1) the videos only showed child nudity, which alone does not constitute child pornography; and 2) the officer’s description of the videos was misleading because it inaccurately described the focus of the camera in the longer video and stated that it showed “vaginas,” i.e., an internal organ, which it did not.
[9] The reviewing judge decided to view the two videos, then heard further submissions. When the matter was returned for judgment, the reviewing judge raised an additional issue. Upon her review of the affidavit of the affiant on the ITO, she observed that the stamp of the commissioner of oaths had expired on June 27, 2019, months before February 3, 2020, the date the affidavit was sworn. The matter was adjourned again for further submissions.
[10] Upon the return of the application, the parties produced an agreed statement of facts that explained that the commissioner of oaths was appointed on June 27, 2016 with an appointment expiry date of June 27, 2019, but the appointment had been extended prior to its expiry pursuant to the Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17. On February 3, 2020, when she administered the affiant’s oath, the commissioner held a valid appointment. Further submissions were made regarding the effect of the expired stamp on the validity of the warrant.
Findings of the Reviewing Judge
[11] The reviewing judge found that on its face, the ITO was defective because it was not properly sworn as required. She found further that the agreed statement of facts was not sufficient to correct the problem because s. 5 of the Commissioners for Taking Affidavits Act requires a person with a time limited commission to affix a stamp under their signature that indicates the limitation. In this case, even if the commissioner’s appointment had been extended and was valid on February 3, 2020, she had not affixed the required stamp. On that basis, the reviewing judge invalidated the warrant.
[12] The reviewing judge then conducted a s. 24(2) analysis to determine whether to admit the evidence of the pictures and videos. Applying the three Grant factors, she found that the breach was serious, resulting in a warrantless search of a home, the impact of the breach was significant, and society’s interest in prosecuting the offences did not take priority over the seriousness of the breach: R. v. Grant, [1993] 3 S.C.R. 223. Therefore, the evidence was excluded.
[13] The reviewing judge then addressed the grounds for challenging the warrant that had been raised by the respondent on the application. She agreed first that the word “vagina” was misleading because the video did not show the internal organs of the girls, and therefore that word had to be excised. She also agreed that upon her own review of the videos, they had not been correctly summarized by the deponent of the ITO, and found that the descriptions “do not depict in words what the officer saw, knew and should have included.” In particular, the descriptions did not include the fact that the videos took place “in an area appearing to be a busy resort, showing a large pool area where there are a number of adults and children, most of whom are nude, some of whom have towels on.”
[14] In addition, the reviewing judge agreed with the respondent that while the girls’ breasts were shown, the dominant characteristic was not depiction for a sexual purpose. Further, she challenged the officer’s description of the activity that was happening as a “pageant”. Importantly, she found that there was no zooming in on the sexual organs and no focus on sexual organs, and that most of the video’s focus was on the surroundings, including people playing in a pool, rather than the line of girls. The reviewing judge concluded that there was nothing in either video “that would show that the dominant characteristic was the depiction for a sexual purpose,” and that the officer was only stating a conclusion. The reviewing judge added that the uploader’s usernames being “Nudist Girls” and “NGirls8” did not change her analysis.
[15] The reviewing judge concluded that there was not sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds that an offence had been committed. Therefore, the warrant could not have been issued, and the search of the home was a warrantless search.
[16] Turning again to s. 24(2) of the Charter, the reviewing judge found that the breach leading to a warrantless search of a residence was serious, its effect on the respondent was severe, and having a trial in the circumstances would bring the administration of justice into disrepute. The evidence was therefore excluded, and the charges were then dismissed.
Issues on Appeal
[17] The respondent concedes that if the reviewing judge was correct in invalidating the warrant based on the facial problem with the commissioner’s stamp, it was an error to exclude the evidence under s. 24(2). However, the appellant Crown asks this court to nevertheless find that the facial error of the expired stamp was corrected by the agreed statement of facts which was admissible on review, and to thereby uphold the warrant.
[18] The appellant Crown also submits that the warrant should be upheld because the reviewing judge made palpable and overriding errors of fact and unreasonable findings applying the law to the facts in concluding that the officer’s description of the videos was misleading and that the videos could not form the basis for a finding of reasonable and probable grounds to conclude that the offence of possession of child pornography had been committed.
Analysis
Issue 1: Did the use of an expired stamp by the commissioner of oaths invalidate the ITO?
[19] The respondent made no submissions on this issue and conceded that the evidence should not have been excluded under s. 24(2) if this had been the only breach that invalidated the search warrant.
[20] There are two components to this issue: 1) Could the additional evidence contained in the agreed statement of facts be used to rectify the facial error by the commissioner of oaths?; and 2) if it could, did that evidence sufficiently address the problem of the expired stamp?
[21] With respect to the first component, clear precedent from this court, followed in subsequent cases in the Superior Court of Justice, establishes that where there are errors on the face of the ITO in connection with the jurat of the commissioner of oaths, including failure by the commissioner to sign the jurat and failure by the affiant to sign the affidavit, extrinsic evidence is admissible to demonstrate that the ITO was in fact properly sworn: R. v. Lachance, [1988] O.J. No. 151 (C.A.), rev’d on other grounds, R. v. Lachance, [1990] 2 S.C.R. 1490; R. v. Waldron, [2018] O.J. No. 2445 (S.C.); R. v. Dixon, 2012 ONSC 181.
[22] Regarding the second component, the reviewing judge found that the error with the stamp was not corrected by the evidence in the agreed statement of facts, and that the result was that it jeopardized the oath:
What was affixed was an expired stamp, therefore, that document is not valid on its face. There is no information before me that could correct that. Even if the commission had been extended, as indicated in the agreed statement of facts, the document on its face, and relying on Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, that this is a facial validity issue, results in a situation that this document was not shown to be taken under oath by someone who was able to take an oath from an individual.
So, if anyone is going to take an oath who has a limitation, such as the commissioner in this situation had a limitation, they must comply with that Act in order to take something under oath. If they take it otherwise, it is as if it was not under oath.
[23] The Commissioners for Taking Affidavits Act defines who has the authority to administer an oath in Ontario, and includes commissioners by virtue of holding an office, such as lawyers, and others who are appointed by the Attorney General. The first group has no temporal or territorial limitation on their authority in Ontario, while the latter are appointed for three years, renewable, and may have territorial or other limitations on their authority.
[24] Section 5 of the Act provides:
- Every commissioner whose appointment is limited in its duration or as to territory or purpose shall indicate the limitation by means of a stamp approved by the Attorney General or his or her delegate under subsection 4(1.1) and affixed under the commissioner’s signature.
[25] In this case, the commissioner affixed the stamp that applied to her expired appointment. The agreed statement of facts explained that the commissioner’s appointment had been renewed before it expired and that on the date the ITO was sworn, February 3, 2020, “the commissioner held a valid appointment for administering oaths and taking affidavits in Ontario.”
[26] Although the agreed statement does not state explicitly that the commissioner had the appropriate stamp to affix in connection with her renewed appointment, that is implied by the agreed statement. Having a valid appointment includes the ability to exercise that appointment, which requires affixing the stamp each time. [1]
[27] The Criminal Code requires that a justice issuing a search warrant be satisfied by information sworn “on oath”. The evidence in the agreed statement is sufficient to satisfy the court that the ITO was made under oath, and that the commissioner who took the oath had the authority and the capacity to validly do so. The error on the face of the ITO is corrected by the evidence in the same way that it was in Lachance.
[28] I therefore conclude that the reviewing judge erred in law by invalidating the warrant on the basis of the facial defect created by the use of the expired commissioner’s stamp and by excluding the evidence under s. 24(2) based on that s. 8 breach.
Issue 2: Did the reviewing judge make reviewable errors of fact and law in finding that the affiant of the ITO gave misleading descriptions of the subject videos, and that those videos could not form reasonable and probable grounds to find that the offences charged had been committed?
[29] Although deference is owed to a reviewing judge on her assessment of the record and her disposition of the s. 8 application, an appellate court may interfere where it finds an error of law, a misapprehension of the evidence, or a failure to consider relevant evidence: Sadikov, at para. 89.
[30] In this case, the affiant did not include the actual videos in the ITO, but relied only on his description of their contents and his analysis of whether they constituted child pornography. However, the videos were provided to the reviewing judge and to this court on the appeal for the court’s own review, which we have done.
[31] Having reviewed the videos, I disagree with and reject the findings made by the reviewing judge that the affiant of the ITO provided a misleading description of their contents and that they do not and cannot provide evidence of the commission of the offences charged. To the extent that the affiant omitted any descriptions of the contents of the videos, he omitted details that would have contributed to the conclusion that they could constitute child pornography. I conclude that the reviewing judge misapprehended the evidence contained in the videos and erred in law in concluding that they could not amount to child pornography.
[32] First, the longer video opens focused on a long line of naked young girls seen from the back with bare buttocks. Second, the girls, who appear to be pubescent or pre-pubescent, walk around a swimming pool on a sunny day. They are all holding numbered cards in their hands. As the camera focuses on their faces, they smile and laugh for the camera. Then the camera focuses on their breasts, one young woman at a time. Then it pans out, and while they walk it shows them fully exposed including their breasts and pubic areas. There are also depictions of a photographer videoing the girls.
[33] From this description, it is clear that the affiant was correct to describe what was occurring as a “pageant” where the girls’ bodies were being judged. There is no issue that the camera zoomed in on the girls’ breasts and focused as well on their pubic areas. While it was an error for the affiant to refer to the pubic areas as “vaginas,” in the context of the description of these videos, it would have been clear to the justice of the peace that the girls were being photographed standing and walking and that the focus being described was on their pubic areas. To the extent that the affiant did not mention that there were people swimming in the pool, that factor does not detract from the aspects of the film, as well as the names under which it was posted on the internet, that form the basis for the conclusion that the videos are child pornography.
[34] Child pornography is defined in s. 163.1(1)(a)(ii) of the Criminal Code as follows:
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
[35] There was no basis for the reviewing judge to find that the affiant was misleading in describing the contents of the videos or in his conclusion that they constituted child pornography. They are not mere depictions of nudity in a benign setting. They focus on the breasts of young girls as well as their pubic areas and buttocks in a manner that can have no purpose other than the sexualization of their bodies. The fact that it is in the context of a pageant or contest further substantiates that purpose.
Conclusion
[36] The reviewing judge erred in law and misapprehended the evidence in finding that the affiant’s descriptions of the impugned videos were misleading and that the contents of the videos could not reasonably form the basis for a justice of the peace to find that the offence of possession of child pornography had been committed. There was therefore no basis to set aside the warrant and no s. 8 Charter breach.
[37] I would allow the appeal, find that the search warrant was valid and the evidence obtained admissible, and order the matter to proceed to trial.
Released: March 21, 2024 “M.T.”
“K. Feldman J.A.”
“I agree. M. Tulloch C.J.O.”
“I agree. P.J. Monahan J.A.”
[1] See the Commissioner for Taking Affidavit renewal form, which states: "send your renewal request at least two months before your appointment expires, but no earlier than six months before expiry. If your old appointment expires, you cannot commission documents until you receive a new copy of “Instructions and Notice of Approval in Principle” and purchase a new stamp with the new approved wording and expiry date.” It stipulates that the renewal form must be sent with all stamp details and fees.