Citation: R. v. Stemberger, 2012 ONCJ 31

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LUKE STEMBERGER

Before Justice H. Borenstein

Heard on December 5, 6, 7, 9, 16 and 22

Reasons for Judgment released on January 23, 2012

Patrick Woods ........................................................................................................... for the Crown

Craig Penney .................................................................................................. for Luke Stemberger

BORENSTEIN J.:

[1] 22-year-old Luke Stemberger is charged with accessing and possessing child pornography. The evidence to be used against him was seized following the execution of a search warrant at his parents’ home on December 15, 2010. Luke Stemberger lived at the home with his parents and twin brother at the time of the execution of the search warrant.

[2] The Toronto police had been advised by the Netherlands police that a computer in the Stemberger’s home accessed 70 pictures of child pornography from a hacked website in August 2009. The images were not downloaded, they were viewed by a computer or other device in the Stemberger home.

[3] Based on that lead, the Toronto Police Service Child Sexual Exploitation Unit obtained a search warrant for the Stemberger’s home which they executed at 7:25 a.m. on December 15, 2010. All of the Stembergers were home at the time. The police did not know which of the occupants may be guilty of this offence or which computer had been used to access the child pornography.

[4] During the execution of the warrant, the police detained Luke Stemberger and his parents. They questioned Luke Stemberger in violation of his right to counsel. He admitted accessing the child pornography but claimed it was accidental. He gave the officers his computer password. The officers seized Luke’s computers pursuant to the warrant and allegedly found child pornography contained on that computer. As a result, Luke Stemberger is now charged with accessing and possessing child pornography in August 2009.

[5] Mr. Stemberger has brought an application under the Charter to quash the search warrant on the basis that the information to obtain the warrant (“ITO”) could not have reasonably lead a justice to issue the warrant and that the warrant was too broad in the scope of items to be searched. Further, he argues that manner in which the officers executed the warrant was contrary the Charter. Specifically the officers illegally detained Luke Stemberger and his parents beyond an initial period necessary to secure the premises, ensure officer safety and to ensure that evidence was not being destroyed. The defence submits that the detention was effected to enable the police to interview the accused and obtain information. That, together with the violation of Luke Stemberger’s right to counsel, demonstrates a pattern of disregard for Luke’s rights and renders the manner the search was conducted unreasonable. The defence submits that the statements taken by the accused ought to be excluded, as well as the results of the search of the computer, as the evidence demonstrates a disregard of Luke Stemberger’s rights rendering the manner of search unreasonable.

[6] The Crown submits that the warrant is valid. The Crown agrees that the statements were obtained unconstitutionally but submits that only the statements ought to be excluded.

[7] On this application, I received affidavits and heard evidence from Luke Stemberger’s parents, Regina and Slavko, as to the manner the search was conducted. The various officers involved in the preparation and execution of the warrant and questioning of Luke Stemberger also gave evidence. I will briefly summarize their material evidence.

Slavko and Regina Stemberger

[8] The Stembergers were home sleeping on December 15, 2010 when they were awoken by a flashlight shone on them in their bedroom. It was dark outside and dark in their bedroom. Police officers were standing in their bedroom. The officers identified themselves and told the Stembergers to get up and come downstairs. The Stembergers were under the covers without clothing. They asked if the officers could step out while they got dressed. The officers told them they could not do that since the officers did not know who they were dealing with. The Stembergers got out of bed, in the presence of the officers, got dressed and were escorted downstairs.

[9] They were told to sit on the couch. If they went to the washroom, or to the kitchen, they were escorted by the police although they were given privacy in the washroom.

[10] The Stembergers were questioned and asked for the passwords to their computers.

[11] While the parents were being questioned, Constable Warnock was also questioning 20-year-old Luke Stemberger.

[12] Luke Stemberger became the target of the investigation. In fact, it was only Luke’s computers that were seized. However, as the officers were leaving the home, they took a hard drive that was lying on a table near the front door.

Constable Warnock

[13] Constable Warnock has been an officer since 2000. He was working with the child exploitation unit on the date the warrant was executed.

[14] Warnock met with the other officers prior to the execution of the search warrant. His role upon entering the home was to interview one of the occupants. He did not know who he would interview. Upon entry, he was assigned the task of interviewing Luke Stemberger.

[15] Officer Warnock knew that, without a password, the investigation could be stymied particularly if the individual was using encryption software.

[16] Warnock testified that he detained Luke Stemberger. While the initial detention was necessary to secure the premises, the detention continued primarily to enable Constable Warnock to question Luke Stemberger even though the warrant did not also authorize the detention of the occupants. The officers did not know who in the Stemberger home accessed child pornography. Accordingly, Warnock decided to detain Luke Stemberger primarily to interview him. Luke Stemberger was taken into his bedroom and was interviewed. That interview was recorded on an audiotape. After the introductions, the following exchange occurred:

Luke: And it has been a long time since my high school classes, but, you know, should I have legal representation or anything? Like….

Warnock: Okay

Luke: I presume that you’re just going to ask me some questions and I don’t know what I can and can’t say.

Warnock: Okay, what I tell most people is what I tell everybody when I talk to them, doesn’t matter if I’m talking to somebody that has been charged, you haven’t been charged with anything at this point in time, okay? But what I tell everybody is I get them to tell the truth. The truth is always the best thing.

Luke: Um hmm.

Warnock: Okay? The truth remains constant, it doesn’t change. So that’s what I tell everybody. If you feel you need a lawyer, um, then, that’s one thing. This isn’t going to stop because you say you want to talk to a lawyer.

Luke: All right.

Warnock: Okay, you understand that? We’re going to continue talking.

Luke: Okay

Warnock: Whether or not you say you want a lawyer. Okay? We’re just, we’re going to have a chat and that’s about it. Right now, you’re not under arrest, um, you’re being detained at this point in time. I am going to read you these rights to counsel. I read them to everybody and that way they understand their rights because you said you don’t know a lot about what’s going on.

[17] D.C. Warnock then read Luke Stemberger his right to counsel and cautioned him. At the conclusion of the rights and the caution, Constable Warnock began to ask Luke Stemberger questions.

[18] While it was clear from the taped interview that Constable Warnock had no interest in giving effect to Luke Stemberger’s Charter rights, it became even clearer when he was cross examined. In his evidence, which I accept as credible, he testified that he was generally aware of his duty to inform a detainee of his right to retain and instruct counsel and his duty to refrain from seeking to elicit evidence until a detainee who wants to speak with counsel has had a reasonable opportunity to do so. Nonetheless, he testified that he might continue questioning a detainee while awaiting a call back from counsel. He would continue questioning a detainee who was “wishy-washy” about whether they wanted counsel. He probably would hold off questioning a detainee who definitely said he or she wanted to consult with counsel and did not want to speak to the police, though not necessarily.

[19] Officer Warnock asked Luke for his computer password. During the questioning, Luke admitted accessing child pornography although he said it was accidental. He provided the officer his password. Luke’s initial statement was complete at 8:23 a.m. He was then arrested and taken to the police station where he then spoke with duty counsel. I was advised that he provided another statement at the police station.

[20] Despite Warnock’s evidence that he was aware of his obligations under the Charter, and his admitted conduct in this case, he testified that he might continue to question a detainee in a similar manner as occurred in this case in the future.

Detective Constable Ward

[21] Detective Constable Ward was part of the team of officers who executed the search warrant. She testified that the officers entered the house at 7:35 am. They had knocked on the door which was answered by one of the Stemberger children. The searching officers stood by while other officers secured and photographed the house. At 8:30 a.m,, she and Detective Constable Gillespie began searching Luke Stemberger’s room and seized numerous CD ROMS and floppy disk drives.

[22] D.C. Ward testified that the search warrant briefing that occurred prior to the execution of the warrant lasted five minutes. There had been no discussion about whether to detain the occupants of the home. Those decisions were usually made on scene by the officer in charge.

Detective Burke

[23] Detective Burke was the supervising officer during the execution of the warrant.

[24] A five-minute search warrant briefing was held before the execution of the warrant. The officers discussed safety issues and their belief that four occupants were in that home and none were “arrestable” at that time. The officers did not know whether the internet connection was secure in 2009 or who may have committed this offence. A Firearms Registry search revealed that no weapons were registered to any of the occupants of the home. The officers anticipated finding numerous computers, as the Stembergers operated a computer consulting business. Officers Warnock and Givens were assigned to interview the occupants of the home.

[25] The officers entered the home at 7:25 a.m. Upon entering any home to execute a search warrant, officer safety is the paramount concern followed by ensuring that evidence is not destroyed. Therefore, initially, officers must take control of the premises and detain the occupants.

[26] Officer Burke’s expected that the officers would try to interview the occupants but testified that the occupants would not be detained, beyond the initial period of detention that was necessary to ensure officer safety and the preservation of evidence. She conceded that it was possible that the occupants may have believed they were detained, even if they were not.

[27] Upon securing the home, Officer Manherz photographed the home. Once that was done, the officers began their search.

[28] Constable Burke was searching a bedroom next to Luke Stemberger’s room when she overheard part of Luke’s admission to Warnock. As a result, Burke instructed the officers to focus their search on Luke’s room and computers and not to seize other computers.

[29] Luke Stemberger was arrested and taken to the police station at approximately 8:50 a.m., Burke instructed the officers not to strip search Luke explaining that she did not want to inflict that type of search upon him until it was decided whether he would be lodged in the cells and placed with other prisoners. That decision would depend upon what the officers found during the search. Just before 10:00 a.m., one of the officers allegedly found images of child pornography on a hard drive found in Luke’s room. The officers left the Stemberger’s home at 11:12 am.

Constable Givens

[30] On consent, counsel agreed that Officer Givens interviewed Regina and Slavko Stemberger separately at 7:33 and 8:12 am. They were not detained at the time.

Detective Constable Manherz

[31] Detective Constable Manherz was the informant in relation to the search warrant that was obtained. He was also extensively cross examined on the ITO and the bases of his beliefs expressed in the ITO.

[32] Defence concedes that Manherz had reasonable and probable grounds to believe that the offence of accessing child pornography had occurred from the Stemberger IP address on August 22 and 23, 2009. He takes issue with whether there were reasonable grounds to believe that evidence would be found of that offence on December 15, 2010.

The ITO

[33] On December 14, 2010, Constable Manherz swore the ITO in support of a search warrant to search the Stemberger home. The search warrant was granted.

[34] Constable Manherz swore that he had reasonable grounds to believe that the Stembergers, or an unknown person, committed the offence of accessing child pornography from their home at 56 Cumber Avenue in Toronto between August 22 and 23, 2009.

[35] The ITO contains three appendices. Appendix A lists items Manherz swore he had reasonable grounds to believe would be found in the Stemberger home and which would afford evidence with respect to the accessing offence

[36] The items listed in Appendix A can be broken down into the four categories:

(i) any computer devices, components, peripherals, modems, routers, hard and USB drives;

(ii) any information or data stored on diskettes, hard disks, tapes, CD’s DVD’s and other media which can be read by a computer;

(iii) any digital files or printed photographic images depicting child pornography; and

(iv) any documentation that will assist in identifying the occupants of the home and the users of relevant computers

[37] Appendix B states that Manherz has reasonable grounds to believe that someone in that home committed the offence of accessing child pornography.

[38] Appendix C contains Constable Manherz’s grounds for his stated beliefs.

[39] Appendix C is comprised of eight separate sections followed by Officer Manherz’s conclusion that he believed the items in Appendix A would be found in the residence and would afford evidence of the August 2009 accessing offence. I will summarize the contents of Appendix C.

[40] Part I summarized Detective Constable Manherz’s experience as an investigator. Since 2008, he has been an investigator with the TPS Sex Crimes Unit, Child Exploitation Section. He has attended many conferences and has taken many courses related to internet child exploitation and digital technology.

[41] Parts II through VIII of the ITO provides an overview of this investigation and the bases for Manherz’s grounds.

[42] In early 2010, Dutch police received information from a web server hosting company in the Netherlands that that their server had been hacked. The hackers placed an imageboard containing images of child pornography on the server. This allowed persons on the internet to view images of child pornography via that server. The company advised the police that they recorded several thousand I.P. addresses of those who “downloaded” child pornography from their hacked site. The company logged the I.P. addresses of those who downloaded large amounts of child pornography.

“Download”

[43] In the ITO, Manherz explained that the term “download” could refer to two different kinds of activity over the internet. It could refer to the intentional downloading or saving of an image onto a viewer’s computer. It could also refer to the automatic transfer of data that occurs onto the viewer’s computer operating system when that viewer clicks on a thumbnail image on a website to view that image in a larger format. In that latter circumstance, data will be transferred to the viewer’s computer even though the viewer did not necessarily intend to download or save the image. I will refer to the former sense as possessing or saving an image and the latter sense as accessing an image. Manherz explained that, in the ITO, he was using the term “download” to refer only to accessing as opposed to the wilful saving or possessing of images.

[44] The I.P. address connected to the Stembergers’ home was one of the addresses that downloaded child pornography from the hacked website. The allegation was that a computer or other device (“computer”) in the Stemberger home was used to access child pornography. Seventy distinct images were accessed from the Stemberger I.P. address between August 22 and 23, 2009. There was no allegation or evidence that they saved or possessed those images.

[45] Constable Manherz received this file on November 3, 2010. He had dealt with the Dutch police before on similar files and found their information to be reliable.

[46] Manherz viewed the images and concluded they were child pornography. He described those images in the ITO and, based on his description, his belief was reasonable. That is not in issue on this application.

[47] Between November 3, 2010 and the swearing of the ITO on December 14, 2010, he conducted various searches and learned that the occupants of 56 Cumber Avenue were Slavko and Regina Stemberger and their twin 20-year-old sons, Luke and John.

[48] Officers drove by the Stemberger home on December 10, 2010 and found no evidence of open or insecure internet access coming from that house on that date. A user of the Stemberger IP address would need the password to gain access to the internet.

[49] Further searches revealed that he Stembergers operated a computer consulting business out of their home.

[50] Manherz consulted with Detective Constable Todd Morden of the TPS Technological Crime Unit. Morden advised Manherz that he could analyze computer systems and retrieve a wide variety of information from the computer including copies of web pages downloaded and websites visited. He could retrieve data that was hidden or deleted. Manherz explained in the ITO that deleted files or file fragments “may exist for an extended period of time (i.e., weeks or months)” due to the design of most computer’s operating systems. He explained that files deleted by the user were not physically deleted, only the pathway to the file was deleted. Typically, the information described would be located on the computer’s hard drive. Sometimes, however, it would be found on floppy disks, CDs and other storage media.

[51] In the ITO, Manherz swore that a user’s password can thwart the entire search of the computer, particularly if encryption software is also being used. The relevant passage states as follows:

Passwords can be used by computer systems and computer programs to protect data. Several computer manufacturers offer password protection on computer laptop hard disc drives. The user is prompted for a password when the computer is first turned on. If the correct password is not provided, the hard disc drive will not operate and the data is unreadable. Presently, there exists no technique to defeat this “lock-out” feature. In addition, widely available encryption programs (e.g. Truecrypt) are capable, with a sufficiently robust password, of providing near absolute protection of data from viewing by other users. It simply may be impossible to “crack” the password. Without the password, the encrypted file cannot be read. Users sometimes store passwords electronically or reduce them to writing in areas near the computer. Accordingly, it is necessary to search for and seize any devices, media or documents that contain passwords for the computer system, computer programs or data files stored on it or other storage media.

[52] In part VII, Manherz swore that he believed the items searched for would afford evidence of the evidence of accessing. Based on Morden’s information, Manherz believed that the items being sought have in past cases afforded evidence and would afford evidence of this offence.

[53] Manherz swore that, based on his experience investigating hundreds of these cases, people who “download and/or collect” child pornography typically retain files for long periods of times, often in multiple device and that, in his experience, digital images can be easily transferred to other sources. An examination of any drives found at the home that were capable of storing such material would assist the officers in determining if those materials were, in fact, stored.

[54] Part VIII of Appendix C deals with Manherz’s grounds for believing that the items listed in Appendix A will be found at the Stemberger home.

[55] In support of this belief, he explained that the IP address from the Stemberger home accessed child pornography; that accessing pornography downloads information onto the computer and, on December 10, 2010, the internet access at that home was secure. Based on his experience, he believed there was a strong likelihood that the Stemberger home accessed child pornography and evidence would be found in the home.

[56] Manherz concluded the ITO by repeating his stated beliefs that items would be found in the home that would afford evidence of the offence of accessing child pornography.

Manherz’s evidence on the voir dire

[57] Manherz is a very experienced and knowledgeable officer having worked on hundreds of ITO’s.

[58] He testified that, upon reviewing the file, he first attempts to form an opinion about whether the accessing was accidental or intentional. The relatively large number of photos accessed, 70 over two days, caused him to infer that this was not an accidental viewing. Further, the imageboard was on the hacked website for only three days and the Stemberger home viewed 70 photos over two of those days. He therefore believed that the person who accessed the child pornography had an interest in child pornography.

[59] He was challenged on the reasonableness of his belief that evidence would be found in the Stemberger home 16 months after the alleged accessing took place.

[60] He replied that 16 months was not a long time in terms of obtaining evidence of accessing from a computer. He described it as standard. He did not consider the case stale and explained his reasoning.

[61] Based on his experience as an investigator, and based on the information he received from Morden, a computer that accessed child pornography will almost always contain evidence of that accessing and that data could be retrieved by forensic examination. Data is automatically transferred to the computer’s operating system. Hard drives are so large that the data downloaded, even if deleted, would not be completely erased from the hard drive until it was randomly overwritten. He explained that, in 98% of the search warrants he has executed, he was able to locate this material. 16 months was not a long time in his view.

[62] He was examined extensively. At first, he testified that his belief that evidence would be found would not be greater if the accessing had occurred two days prior to the search rather than 16 months prior. He eventually agreed that that the passage of time may impact the likelihood of finding evidence but only after a lengthy period of time, not 16 months, particularly given the relatively large number of photographs viewed and data that would be transferred. It was not an issue in this case according to Manherz.

[63] Once Manherz admitted that the passage of time can be an issue, he was asked if he thought he should have explained that issue in the ITO so that the issuing justice could form her own opinion. He replied that he did not consider it to be an issue in this case but that he did include all relevant dates in the ITO, and his belief, and Morden’s, that the data would still be found.

[64] Even though this evidence was adduced in cross-examination, the defence made clear that Manherz was not testifying as an expert in the operation of computer systems though clearly Manherz has extensive knowledge in this area. Rather, this evidence was being adduced in relation to his own beliefs and opinions.

[65] Manherz was questioned about his belief that those who accessed the material from the Stemberger home were still at the home 16 months later. He replied that the material was accessed over two days suggesting that the person who accessed the materials were there overnight and his searches revealed that the Stembergers lived there for years. He conceded however, that it was possible someone else at the home accessed the material.

[66] He was asked whether he considered the possibility that the computer or other device that accessed the material would no longer be present in the home or that it may have been accessed on a smartphone which no longer existed.

[67] He replied that most people do not view this type of material on smartphones as they prefer to view it on bigger screens. He also testified that, in his experience, most people do not throw away their hard drives as they are concerned about the privacy of the information on their computers, particularly where they access this type of material.

[68] There was much cross-examination concerning Manherz’ belief that, many people who access child pornography also intentionally save and possess it as he stated in the ITO and in his evidence.

[69] Manherz testified that, in the vast majority of cases he has investigated where people have accessed child pornography, he found evidence that they also saved or stored it on storage devices.

[70] He testified that, while he did not believe he had reasonable grounds to believe that the person who accessed the child pornography in this case was a collector who saved it, based on his experience, he believed he would find evidence of possession on storage devices. He testified that in 98% of the cases he has been involved with, those who accessed child pornography also collected it and therefore evidence of the accessing offence would also be found in storage devices.

[71] This part of the evidence was somewhat circular given his continual admission that he did not have reasonable and probable grounds to believe that the subject of this investigation possessed or stored those images. In order for images to be found in storage devices, the individual must have intentionally stored them on those devices, which would amount to the offence of possession. In light of Manherz’s admission that he did not have reasonable grounds to believe that the offence of possession had occurred, I will not rely on this belief in the ITO in my review of the sufficiency of the ITO.

[72] That was the evidence called on the application.

Submissions of Counsel

Defence

[73] The defence submits that the officers violated Luke Stemberger’s rights under sections 8, 9 and 10(b) of the Charter and that the statements Luke Stemberger made and the evidence obtained from the search of the computer must be excluded pursuant to section 24(2).

[74] The defence submits that the ITO could not have reasonably led a justice to issue the warrant. In particular, the defence submits that, in light of the passage of time, there were no reasonable grounds to believe that the computer that accessed the child pornography would be found in the Stemberger home 16 months after the offence or that evidence would be found on that computer if located. At its highest, the device and data might have been found that evidence which is an impermissibly lower standard than required for reasonable and probable grounds. The defence refers to this as a “staleness” issue.

[75] In addition, even if the passage of time did not detract from the grounds for the warrant, the informant still ought to have explained that issue in the ITO so that it could be assessed by the issuing justice.

[76] The defence further submits that the ITO was misleading, principally, by conflating the two uses of the term download despite Manherz’s definition of the term in the ITO. The defence submits that, the whole of the ITO misled the issuing justice into believing that someone at the Stemberger home intentionally saved or downloaded child pornography and therefore evidence would be found in the items being searched. However, the defence is not seeking to excise any paragraphs from the ITO.

[77] The defence further submits that the warrant is overbroad in the items it authorizes. In effect, it authorized searches of all computers and related material in the Stemberger home to try to see which computer in the home accessed child pornography.

[78] The defence finally submits that the manner in which the police executed the search was unreasonable and demonstrated a pattern of disregarding Mr. Stemeberger’s rights, including violating Luke Stemberger’ rights not to be arbitrarily detained and his right to counsel. The search of computer was therefore obtained in a manner that violated the Charter.

[79] Accordingly, the defence seeks to exclude the Luke Stemberger’s statements and any evidence seized from computers allegedly belonging to Luke Stemberger pursuant to section 24(2).

Crown

[80] The Crown agrees that Luke Stemberger’s was unlawfully detained violating section 9 of the Charter and that his right to counsel was violated and the statements ought to be excluded.

[81] I agree with that concession.

[82] The Crown submits that the ITO is sufficient and is not misleading or deficient.

[83] The Crown submits that staleness is not an issue in this case. The dates the material was accessed was known and disclosed. Manherz swore that, based on information received from Morden, he believed that the police could obtain evidence of that accessing and nothing in his testimony undermined or detracted from that belief. The evidence provided additional support for that belief. If necessary, therefore, the Crown submits that the ITO can be amplified by the consistent explanation provided by Manherz.

[84] The Crown concedes that Manherz’ evidence concerning what he believed the reasonable and probable ground standard was wrong and confusing as Manherz believed, wrongly, that a lesser standard was required for a warrant than for an arrest. However, as Manherz testified, it was apparent that, his belief in the applicable standard for both was well above credibly based probability.

[85] The Crown submits that the warrant was not overbroad. Searches of computers present unique challenges but this warrant authorized the search and seizure of computer-related items in the home.

[86] With respect to the manner of search, the Crown acknowledges that the police violated sections 9 and 10(b) of the Charter. However, the Crown emphasizes that the warrant was executed in the daytime, the police knocked on the door and were allowed entry by one of the occupants, there was no damage done to the home and the officers largely confined their search to Luke Stemberger’s room once they received his admission. The Crown submits that the breaches by Warnock had nothing to do with the search of the computer. In these circumstances, the Crown submits, the violations of the Charter are properly addressed by the exclusion of his statements.

[87] In reply, the defence submits that this is not an appropriate case to amplify the record arguing that the errors were not minor or technical. The defence submits that there were two categories of errors in the ITO, neither of which were minor or technical.

[88] The defence submits that the first error was that the ITO misled the issuing justice, albeit unintentionally by the ambiguous use of the term download together with the phrase, those who “download and/or collect pornography” in reference to items that would be found. This error cannot be corrected by amplification. The other error in the ITO was the failure to provide information to the issuing justice concerning staleness and data degradation which ought not to be corrected through amplification.

Analysis and Findings on the Charter Application

[89] The onus is on Luke Stemberger to establish a violation of the Charter and any remedy that might follow.

Legal principles on reviewing ITO

[90] Section 487 of the Criminal Code permits the authorities to obtain a search warrant where a justice determines, based on information under oath, that there are reasonable and probable grounds to believe that an offence has been committed and that there are reasonable and probable grounds to believe that there is evidence of that offence to be found in a place to be searched.

[91] As stated by Chief Justice Dickson in Hunter and Southam (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) : The State’s interest in detecting and preventing crime begins to prevail over the individuals interest in being left alone at the point where credibly based probability replaces suspicion.

[92] In R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), Wilson J. added: To establish reasonable grounds….the appropriate standard is one of reasonable probability rather than proof beyond a reasonable doubt or prima facie case.

[93] The role of a reviewing justice on an application quash a warrant was recently the subject of comment by the Supreme Court in the 2010 decision of R. v. Morelli, where the Court held at paragraph 40 that:

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[94] I have considered the helpful summary of law provided by Justice Hill in the 2007 decision of R. v. N. M., 2007 4875 (ON SC), [2007] O.J. No. 664/06.

Findings

[95] There is no issue in this case that the ITO establishes reasonable and probable grounds to believe that a computer accessed child pornography from the IP address connected to the Stemberger home in August 2009.

[96] Turning to the issues in contention.

Could the issuing justice conclude that there were reasonable grounds to believe the computer that accessed the child pornography would be found in the Stemberger home?

[97] There are reasonable grounds to believe that a computer in the Stemberger home accessed child pornography in August 2009. There is nothing in the ITO or evidence that suggests that that computer was discarded or destroyed. However, the ITO does not explicitly state that the officer believed that the computer remained in the home.

[98] The defence submission seems to presume that computers that are used in a home will no longer remain in the home 16 months later. I question why that is the presumption, as opposed to the opposite, namely, that the computer known have been used in one’s home would presumably remain in the home 16 months later absent anything to suggest otherwise. Would the presumption differ if it were one year, or two years after the alleged accessing? It is entirely speculative. The only evidence on the point is that of Manherz given on the voir dire which I find persuasive; namely, that people do not tend to discard their hard drives given the personal information they contain although it is certainly possible that someone might. Even without Manherz’ evidence on the voir dire, I find that the issuing justice could have come to that reasonable inference. Perhaps if a much longer time had passed, the issue of whether the device would still be in the home would be a live one.

[99] While it would have added to the ITO had Manherz elaborated on this reasoning, it remains a reasonable inference that the computer associated with the home would be in the home absent something to suggest otherwise.

Could the issuing justice conclude that there were reasonable grounds to believe that evidence of accessing would be found on the computer that accessed child pornography?

[100] I now turn to a consideration of whether the justice could have concluded that evidence of accessing would be found on the computer.

[101] I agree with the defence submission that much of the ITO conflates the issues of downloading that occurs when accessing the internet with intentionally saving images. Further, having conflated those issues, the ITO then discussed the type of data that could be retrieved from the computer. Moreover, the use of the phrase “download and/or collector” in the same context had the potential to broaden the scope of what is likely to be found and could mislead the issuing justice. While there is no suggestion that Manherz intentionally mislead anyone, the potential for misleading the justice remains. If materials were stored on any of those devices, the person who stored them would be in possession of child pornography, something Manherz conceded he did not have reasonable grounds to believe even though he thought it likely had.

[102] Therefore, while the defence abandoned its attempt to excise any part of the ITO, the fact remains that only one part of the ITO speaks to whether evidence of accessing would likely be found in a search of the computer.

[103] The relevant part of the ITO in this regard states that, based on information from Morden, Manherz believes that a forensic examination of the computer could retrieve a wide variety of information including copies of web pages downloaded from the internet and the sites visited. Further, deleted files would remain for extended periods of time.

[104] Nothing in the cross-examination of Manherz undermined his belief and nothing causes me to conclude that it is not true. The evidence of Manherz on this application does not suggest that the TPS would be unable to retrieve the data referred to in the ITO. To the contrary, his evidence strengthens that statement.

[105] Accordingly, the chain of reasoning that a issuing justice could reasonably have come to was as follows.

[106] Reasonable and probable grounds existed to conclude that:

• a computer in the Stemberger home accessed child pornography in August 2009;

• data from the website accessed would be downloaded onto that computer’s operating system where it would remain and could be retrieved forensically;

• that computer or device would be found in the Stemberger home.

[107] The defence submits that Manherz ought to have identified the issue of staleness or potential degradation of data so that the issuing justice could form her own opinion. However, having heard the evidence of Manherz, which I accept, staleness or degradation of data is not an issue in this case.

Amplification

[108] Given my decision, amplification of the ITO to support the grounds is not relevant in this case.

Overbreadth of items to be searched and seized

[109] The Criminal Code requires that reasonable grounds must exist to believe that evidence of the offence will be found “in a place to be searched”. The defence submits that the items listed in Appendix A were overbroad and essentially authorized a fishing expedition untethered to their reasonable grounds.

[110] Searches of computers present unique challenges. One’s computer may contain RAM, hard drives, USB drives and back up material on CD, DVD floppy drives or other drives. It would be too narrow and unworkable to expect an officer to always know in advance which drive of the computer contained the material that he had reasonable grounds to believe existed on that computer. The analogy of a home is apt. A search warrant may authorize the search of a home, or a bedroom but it would not be reasonable to expect the officer to always know in advance which drawer in the bedroom would likely contain the material.

[111] All of the items listed in Appendix “A” are computer related and directly relate to the belief that evidence would be found on the computer in that home that accessed child pornography and to evidence to identify that person. The items in Appendix A do not authorize a fishing expedition untethered to this case.

[112] In R. v. Jones (October 11, 2011) OJ. 632 (Ont. CA), the Court provided guidance as to the appropriate scope of examination of computers seized pursuant to a warrant. The warrant in Jones was as broad as the warrant in the case at bar although it related to a fraud investigation. The officers were searching the computer for evidence of fraud when they found evidence of child pornography. Having obtained legal advice, they continued searching the computer for evidence of both fraud and child pornography. The trial judge found that the continued searching for evidence of child pornography was a violation of section 8 of the Charter and excluded the evidence. On appeal, the Court agreed that a further warrant was required in relation to child pornography but held that the evidence ought to have been admitted.

[113] In the course of their judgment, the Court held that the warrant itself was valid in relation to the fraud. Even though the warrant did not restrict itself to the types of files that could be searched for, it was nonetheless restricted in the circumstances to searches for evidence of fraud given the unique challenges presented when searching computers. The warrant in this case authorized the search and seizure of items listed in Appendix “A” in relation to the offence of accessing child pornography. The same rationale applies in the case at bar.

[114] Accordingly, despite some misleading aspects in the ITO which I am not including in my review of the sufficiency of the ITO, the warrant was one that a justice could reasonably have issued.

Sections 9 and 10(b)

[115] It is conceded by the Crown that Constable Warnock violated Luke Stemberger’s rights under sections 9 and 10(b) of the Charter and that the statements of Luke Stemberger ought to be excluded.

Did the manner of search violate section 8 in addition to section 9 and 10(b)?

[116] As stated in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (SCC) a search will be reasonable, inter alia, if it is carried out in a reasonable manner.

[117] The searching officers had a warrant. The search is presumptively reasonable.

[118] Notwithstanding the existence of the warrant, the search of Luke Stemberger’s computer was conducted in an unreasonable manner and in flagrant disregard of his rights and 25 years of jurisprudence.

[119] Constable Warnock was assigned the role of investigating Luke Stemberger. He wilfully and brazenly violated his right to counsel and his right to not be arbitrarily detained. He was also detained unlawfully beyond the initial period required in order to facilitate that questioning. During that questioning, the police obtained his password.

[120] The officers believed that a password protected computer could defeat their ability to search the computer so they violated his rights, obtained his password and found evidence therein which they intend to use to prosecute him.

[121] While there is no direct evidence before me, I find it more likely than not that the police used the password to access Luke Stemberger’s computer. The ITO and the evidence speak of the difficulties the police would encounter without the password. The officers asked Luke and the other occupants for their passwords and obtained Luke’s password. From that, I infer they used it. I would have expected to hear evidence that they did not use or need the password if that evidence existed. The evidence seized from the computer was obtained in a manner that was unreasonable contrary to sections 8, 9 and 10 (b) of the Charter.

Exclusion of evidence pursuant to s. 24(2)

[122] As a starting point, it must be emphasized that individuals do and should enjoy a very high degree of privacy in their homes and in their personal computers. The amount of private information contained in one’s personal computing device is ever increasing. Individuals’ reasonable expectation of privacy in these devices is high and must be vigilantly protected from any unreasonable search or seizure.

[123] It must also be emphasized that child pornography is particularly insidious. The harm it causes is always of great concern and can be catastrophic to the victims, their families and others. It demeans and degrades children and puts them at risk given that, slowly, it may impact on what viewers of child pornography perceive as acceptable behaviour. To name just a few of the many consequences.

[124] The focus of the 24(2) inquiry is on the long term effect on the repute of the administration of justice of admitting unconstitutionally obtained evidence. The fact that there has been a violation of the Charter means there already has been damage done to the repute of the administration of justice. The 24(2) inquiry seeks to determine whether admitting the evidence could cause further disrepute the administration of justice. While excluding evidence necessary to prosecute a serious crime such as this may provoke negative reaction, the focus must be on the long term effects on the repute of the justice system if Courts routinely admit or exclude evidence obtained in similar circumstances.

[125] I turn now to the analysis mandated by the Supreme Court’s decision in R. v. Grant(2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (SCC) Beginning with the seriousness of the Charter-infringing conduct, the violation of Luke Stemberger’s right to counsel was wilful, considered and in complete disregard of his rights and 25 years of jurisprudence. Constable Warnock was assigned the role of interviewing Luke Stemberger. His comments on tape demonstrated the seriousness of the violation. His evidence, while credible, did nothing to mitigate that seriousness. I have found that it was likely that the police needed, or at least used, the password to access the contents of the computer. Even if the password was unnecessary, it would not significantly diminish the seriousness of the violation. This violation is so serious that the Court must denounce it in the strongest terms so as not to be seen to be condoning such conduct and to disassociate itself from the evidence obtained during this breach.

[126] Turning to the impact of the breach on Luke Stemberger’s Charter-protected interests. All individuals, including those who have been detained, have the right to choose whether to participate in the process by speaking to the police or otherwise cooperating with an investigation. The legal rights throughout the Charter seek to ensure that detainees are aware of and can exercise that right. That is one of the main reasons for the right to counsel. The conduct that occurred in this case completely undermined that right and the reason for that right. As a result, Luke Stemberger provided the password to his computer which was needed by the police. Accordingly, the impact on Mr. Stemberger’s Charter-protected interests was significant.

[127] While the police had a warrant to seize the computer and possibly might have been able to access the contents, that remains somewhat speculative. The police asked for and received the password and I infer they used the password.

[128] The third series of factors under the Grant test militate toward the admission of the evidence. The evidence was reliable and is necessary to prove the Crown’s case. There is a significant societal value that guilt or innocence be determined on the merits by reliable evidence. There is no suggestion that the evidence in this case is unreliable or that the violations undermined its reliability.

[129] In the end, balancing all of these considerations, and in particular, the seriousness of the misconduct, it is my view that the evidence must be excluded to preserve the repute of the administration of justice.

Released: January 23, 2012

Signed: “Justice Borenstein”