Court Information

Court: Ontario Court of Justice

Before: Justice C. Kehoe

Charter Application Decision Released: October 7, 2013

Parties and Counsel

Crown: M. Geigen-Miller

Accused: A. London-Weinstein (for Justin Dufaure)

Charges

Justin Dufaure is charged that on or about November 11, 2010, at the City of Ottawa, he:

1. Possessed, without lawful excuse, child pornography in the form of pictures and movies, contrary to section 163.1(4) of the Criminal Code of Canada.

2. Unlawfully possessed marijuana, a substance included in Schedule II of the Controlled Drugs and Substances Act, contrary to subsection 4(1) of the Act and thereby committed an indictable offence under subsection 4(4) of the Act.

Procedural History

The Crown elected to proceed by indictment on July 20, 2011. On July 25, 2010, the accused elected trial in the Ontario Court of Justice. The accused re-elected trial by judge and jury in the Ontario Superior Court on April 25, 2012. A preliminary inquiry date was set as well as a "Garofoli" application date. The Garofoli application was abandoned on the date of the motion.

On the date of the motion, the Crown admitted that the search of the computer and the thumb drive when the first warrant (Det. Hassan's warrant) was executed on November 11, 2010, was unlawful. The computer and thumb drive, as well as a second thumb drive and flashcard were seized during the execution of the Hassan warrant. The computer and one thumb drive were the subject of a second warrant (Sgt. Maureen Bryden warrant).

The Crown admitted on the date of the Garofoli application that the search and seizure of the computer and the thumb drive was the result of a warrantless search. The Crown also admitted that the grounds for the Bryden warrant were based on information received from Det. MacKillop, the officer who searched and seized the computer, thumb drives and flashcard. It is admitted that information was the result of the warrantless search and therefore there were no grounds for the Bryden warrant. The Crown admitted that the second search of the computer and the black thumb drive as well as the first search of the grey thumb drive and the flashcard breached Mr. Dufaure's section 8 Charter rights.

Issues at Trial

The issue at trial was whether the child pornography obtained as a result of the two searches is admissible. Defence Counsel seeks to have the evidence excluded pursuant to section 24(2) of the Charter. The Crown seeks to include the evidence.

Evidence

Detective Paul MacKillop

Det. Paul MacKillop, an Ottawa Police Service officer in the Guns and Gangs Section, was on duty on November 11, 2010. He was assigned to assist Det. Hassan with the execution of a search warrant at 2020 Jasmine, in the City of Ottawa.

Prior to going to the apartment, Det. MacKillop attended a briefing Det. Hassan gave to the team concerning the contents of the warrant, including Appendix A, the list of items to be searched for and B, the list of potential offences the warrant was requested for.

Det. MacKillop testified that, at the briefing, he learned that it was a section 487.1 Telewarrant for firearms. They were to search the residence at 2020 Jasmine, apartment 818. The subjects of the warrant were Joshua and Justin Dufaure. Det. MacKillop reviewed the warrant at the briefing, including Appendix A and B. He had not reviewed the Information to Obtain, or the grounds for the warrant.

Det. MacKillop arrived outside the apartment building at 15:45 hours. He was in the parking lot watching the residence. At 17:05 hours, the Tactical team turned the residence over to Det. MacKillop and the search team, having made the entry and clearing the residence. Det. MacKillop was assigned as the evidence officer for the warrant. He was also assigned to search bedroom number two of the two-bedroom unit. Sergeant Curtis was assigned to search bedroom number one, Det. Ramsay the living room, kitchen and bathroom and Det. Tessier bedroom three and the hallway.

Det. MacKillop was not involved in observing, gathering or seizing any evidence concerning this investigation or warrant prior to entering the residence.

Search of Bedroom Two

Det. MacKillop's practice as the evidence officer is to draw a layout of the apartment and assign the officers to the room(s) they will search. Det. MacKillop was the first officer to enter the apartment. Once rooms were assigned, he went to bedroom number two to conduct his search. He described the bedroom as a typical apartment style bedroom with a shallow closet with sliding doors. He believed that the bedroom had a window and an air conditioner in the window. He testified that there was one bed. He assumed that it was occupied by one person but he did not know who occupied the bedroom. He described the whole apartment as "quite messy" and littered with clothes and items strewn about the apartment. Bedroom number two had clothes everywhere, the closet was full of clothes, and there was a laptop and a few other things. He testified, "I think there was a desk, but that's about it, nothing unusual standing out".

Det. MacKillop did not observe any of the items that he was searching for out in the open. His usual practice is to start in one corner of the room, search it, clear it and use one area of the room to stack the rest of the items in the room so that he knows that he has gone through everything. He believed that he started in the closet during this search. He testified that he removed everything from the closet. In the closet he found the police issued, bullet-proof vest as well as an asp or police baton. Det. MacKillop testified "I believe, to the best of my recollection, there were police markings on the vest, yes", when asked whether there were any markings on the vest.

Det. MacKillop testified that once the closet was emptied, he used the closet to pile items he had looked at and made his way towards the bed. He went through all of the clothing and everything else and started using the bed to pile things on in addition to the closet. He made his way around the room. He observed a TV and next to the TV he located a black digital scale and four cell phones. On the desk he located a wallet, two $20.00 bills, he believed were in it. He found a can of bear repellent on the desk, two plastic bags of marijuana, and a small film case of marijuana. He located a Roger's cell phone bill on the desk as well as a debt list.

Det. MacKillop also located a Honey brand cigarette pack. He testified, "Inside that there were nine folded decks. I described it as 'decks' inside the wallet. The term 'decks' I use to describe pieces of paper that are folded into a rectangular shape that are often used to conceal cocaine when trafficked." He believed that was also next to the TV and the scale.

Information About the Investigation

Det. MacKillop was not the affiant for the Information to Obtain the Hassan warrant. When asked if he knew exactly what grounds were relied on in the warrant, he stated, "I know there were, the grounds, some of the grounds relied on for the warrant would have been the conversations and the information obtained from the two confidential informants." Det. MacKillop was present when both handlers met with their individual informants, C1 and C2.

Det. Cleroux met with his informant on May 6, 2010 and Det. Hassan met with his informant in September 2010.

Det. MacKillop said that from his recollection, both conversations were quite similar and what stuck in his mind was that the handgun, the assault rifle, was mentioned as well as a Facebook picture of the assault rifle. He thought it was described as an AK47 that was brought up by one of the confidential informants. He remembered the picture being the assault rifle on a carpet, on a chair, in the apartment and there was reference to that being the apartment in question. He believed that the photograph was shown on the confidential informant's Facebook, on the CI's phone. He understood that the location of the photograph would have been on Joshua Dufaure's Facebook but in apartment 818 at 2020 Jasmine. He understood Joshua and Justin to be brothers living in that apartment.

When asked whether he had received any information about any drug trafficking activity, Det. MacKillop stated, "I believe that Josh was involved in the distribution of cocaine and he believed marijuana". When asked whether he received information about a bulletproof vest, he stated, "Yeah, I'm referencing the notes taken by Det. Hassan about Justin Dufaure being in possession of a bulletproof vest and a semi-automatic handgun."

Discovery of the Computer and Thumb Drive

After clearing the desk and TV area, Det. MacKillop located a computer on the floor next to the bed. He observed that the computer was playing or that a movie was playing on the computer. He picked the computer up and beside the computer was a thumb drive. He believed that it was black in colour.

Det. MacKillop testified that he saw the thumb drive on the floor when he picked up the computer. He testified that he picked up the computer so that he would not step on it. He believed that he put it on the desk. He picked up the thumb drive and the first thing that came to mind was the Facebook picture of the firearm. To his knowledge at the time he picked up the thumb drive, no one had located the firearm. He testified, "That's when I made the decision to put the thumb drive into the computer and look at the picture folder in an attempt to locate the picture that was taken and posted on Facebook."

Det. MacKillop testified when asked how the picture he was looking for was connected to the investigation:

"Taking into consideration the confidential informants who had stated that the Facebook picture was taken, the confidential informant was confident that that was the residence that the gun was seen in. I thought that if and when the firearm would be located or that picture would add to the strength of the possession charge whether it was in the room or not…Whether the gun was located, like I had searched the room so in my head the gun wasn't in the room. I hadn't found it. So if the picture were located on the thumb drive, in my opinion, it would have strengthened the possession charge for Justin and the person of that room, the occupant of that room if the gun was located in another part of the residence. It would have showed knowledge of the firearm by the person who occupied bedroom number two."

Det. MacKillop testified that he picked up the thumb drive and brought it over to the laptop. He testified:

"I believe I minimized whatever movie was playing, plugged the thumb drive into the laptop and then opened it up in the ah, I guess, the computer folder. I'm not a big computer tech savvy person so…Once the thumb drive opened up then I clicked on the photo file and that's when I saw the contents of the photos."

Det. MacKillop testified that the reason he thought that a photograph might be on the thumb drive was because he keeps his own photos on a thumb drive. He said that in his opinion a laptop can be shared with anybody so if someone had a thumb drive they were probably keeping their photos on that thumb drive as opposed to the shared laptop. However, he had no idea how many people or whether anyone was sharing the laptop.

Det. MacKillop agreed that in order to view the thumb drive he was using the laptop computer. However, he testified that he did not look at or examine the contents of the laptop. He stated that once the window on the thumb drive opened up he went to "the picture folder or photos". He was not sure what the title was. He clicked on "photos" and saw multiple icons or thumb nails pop up with the photos. He looked at few pictures. He stated, "Not very many, maybe a half dozen, I'm not sure, enough to say that it didn't seem like a normal photo album". The maximum number he would have looked at would have been a dozen. The photos appeared to him to be child pornography. It was the nudity, the settings or poses, and the age of the people in the pictures, under the age of 16, that told him that. He spent a minute or two looking at photos. He was still in the bedroom. He called Sergeant Bryden and asked her advice. He explained that the team was lawfully in the residence under a 487 search warrant for firearms. He explained that he had found a thumb drive beside the computer and that he had looked at the content, the pictures that were on the thumb drive. He explained to Sergeant Bryden that his interpretation of the law was that under 49.1 he could seize the thumb drive and the computer for further investigation.

Det. MacKillop and Sergeant Bryden had a discussion. He could not remember verbatim what they spoke about. He gave her the grounds as to why they were in the residence and his grounds to believe that it was child pornography on the thumb drive.

Det. MacKillop was advised to seize the laptop and the thumb drive and to lodge it at the police station as Sergeant Bryden would be writing a warrant to investigate what was on the thumb drive. Det. MacKillop seized the laptop and the thumb drive.

The only other item that was seized, other than the items mentioned above, was a plastic bag of white power believed to be cocaine. He had no recollection of the size of the bag. He testified that he did not seize it but took custody of it. He did not weigh it. He testified concerning identification documents seized in bedroom two was he believed a Future Shop ID, a gym membership and a driver's licence. Det. MacKillop testified that he did not find anything with anyone else's name(s) on it.

Det. MacKillop testified that the fact that the photo of the gun in the apartment was supposed to be on Joshua Dufaure's Facebook page made no difference to him. "They're brothers, the ability that you can't tell who posted it…so someone else can upload, Josh could easily upload a picture to Justin's Facebook or vice versa…he was still looking for the same picture in Justin's room."

Exhibit 4, 5 and 6 were admitted into evidence. These were three bags of marijuana.

The computer and thumb drive were lodged in a temporary locker at 474 Elgin and retrieved by Sergeant Bryden he assumed.

He testified that with Guns and Gangs warrants, many times, if there is a large quantity of drugs found he will seize the phones and any other communication devices in order to attempt to prove the trafficking if that would be the charge.

When asked what he would do today if he came upon a thumb drive, cell phone and computer, he stated: "With the recent, a lot of the recent decisions that we're told about, the thumb drives, the portable electronic devices are all subject to the best practice of getting a warrant to search them." He could not recite any case law that says that it is absolutely required but he knows that it is best practice to get a warrant.

Det. MacKillop testified, "At the time that he was in bedroom number two on November 11, 2010, he believed that it was lawful for him to look on the thumb drive." He held that belief because "I believed that in the attempt to locate the evidence of the firearm, that I had grounds to search a thumb drive". He was not attempting to search a computer in his opinion. He separated the two, the thumb drive from the computer.

In cross-examination Det. MacKillop agreed that there was a distinction, in his mind, between a thumb drive and a personal computer. He testified that the basis of the distinction was that computers and Smart Phones generate ongoing information whereas a thumb drive is a storage item and not something that is going to transmit your conversations and everything else. He testified that in November 2010, upon arrest and the seizure of a cell phone, it would have been acceptable to take whatever information on the cell phone as part of his search incident to arrest. He testified that since November 2010, there have been certain decisions rendered, and he understands that it is now best practice not to search a cell phone and to actually get a warrant. He agreed that police officers try to stay current with the law and Court of Appeal decisions in relation to Charter rights that have to be respected.

Det. MacKillop agreed that Det. Hassan's information in developing the grounds for the Hassan warrant, executed on November 11, 2010, was that Cst. Robert Cleroux met with Confidential Informant 2, (C.I.2), and provided the following information, "Observed Joshua Dufaure in possession of an AK47 rifle" and that "he observed a picture of an AK47 rifle on a beige rug, which was posted on Joshua Dufaure's Facebook and from the picture he recognized the background of the photo as the apartment of Joshua Dufaure."

Det. MacKillop was asked whether he had stated in his evidence that he had seen the Facebook image. He stated, "I believe the C.I. at the time had that image, had pulled up Facebook on the phone to show us that image." He agreed that in Det. Hassan's Information to Obtain, it was not clear that the image had been shown to Det. Cleroux and Det. MacKillop.

However, when it was put to Det. MacKillop that the C.I. had the image on the phone when he was with the officers on May 6, 2010, the C.I. must have been looking at Mr. Dufaure's Facebook page at that time. Det. MacKillop stated, "They could have been, yeah…Well, I don't remember watching the person logged on and actual (sic) pull it up or did he – is that picture saved to the phone type of thing." He agreed that he had an independent recollection of seeing the image on the C.I.'s phone. He testified that the meeting with the C.I. would have been approximately a half hour. He did not have notes because the practice is that the "handler" takes the notes. He could also recall an older style metal dining room chair, rounded, not squared corners and light tile on the floor. When asked whether he recognized anything he saw in the apartment during the search from the photograph, he stated "I don't recall" and he agreed that there was nothing in his notes that would assist on that point. He stated, "No, I only searched the bedrooms so I didn't I actually didn't make note of anything going into the, into the dining room or anywhere else." He agreed that there was nothing in the photograph to indicate which room in the apartment the photograph depicted.

When asked if there was any effort to reproduce the photograph that was on the C.I.'s phone, he stated, "You'd have to ask the lead on that one, sorry". He agreed that if police had made an effort to save a copy of the photograph, it would have been evidence that a police officer would want to retain. He testified that the photograph would have been evidence of the knowledge of the offence if there a firearm was recovered.

Det. MacKillop testified that he seized four cell phones from bedroom number 2, during the search, but to his knowledge, the phones were not searched for data information. He testified that they were not searched because, "I had no evidence, well, it didn't even cross my mind to go through the phones because at the time we were thinking with the cocaine that was found as well as the marijuana, that everything would be going to, the actual trafficking charges, would be going to the drug section. So the cell phone are packaged with the debt list and the money and everything else and sent to the drug section so that they would do their thing with it if they were charging for trafficking."

He agreed that since the C.I. showed him the photograph on his cell phone, there might have been images of the Facebook photo on the cell phones.

He testified that he didn't touch the anything to do with the phones, the debt list, the folded decks and the money because in his mind because the drug section would deal with that. He agreed that he was aware that people can store images on cell phones and that there could have been an image of the gun stored on the phones. He agreed that he had not saved a copy of the photo of the firearm that he was shown by the C.I. Det. MacKillop agreed that he had no knowledge, prior to November 11, 2010, that Justin Dufaure might have been in possession of child pornography. He testified that prior to December 5, 2012, the date of trial, that he would not have known Justin from Joshua as he had never had any dealings with them.

He testified that he keeps his photographs on a thumb drive because he shares a laptop. He agreed that his thumb drive is private but stated, "It's as private as you want it to be. If it's laying (sic) out, if I left my thumb drive sitting in here what's the expectation of privacy". He agreed that there might be a different expectation of privacy if the thumb drive is in your bedroom.

He agreed that when the photograph was shown to Det. Cleroux and himself in May 2010, he had no information as to when the image had been posted or how old the photograph might have been.

He agreed that he plugged the thumb drive into the laptop computer in bedroom 2. When asked whether he agreed that there were other thumb drives on the floor next to the computer he stated, "I didn't make any note of any other thumb drives, to be honest." When asked whether he seized any other thumb drives and take them for testing, he stated, "I don't, I have no notes of it and I don't recall picking up any other thumb drive. It was that thumb drive and the computer." He did not recall seeing a gray thumb drive.

In examining his thought processes during the search, he stated, "I saw the thumb drive, saw the laptop sitting there. I believe there was a video or moving playing, again, in my interpretation, I was looking for the Facebook picture. I wasn't intending to search any other records of the computer or anything else and right or wrong, I decided, I took, I'll take the brunt of it, it was my decision to throw the thumb drive in, in an attempt to find that, to see if that picture existed. So I plugged it in the side of the laptop, minimized the movie then I would have opened up the, you know, I'm on a computer everyday so it's, you what I mean, like, to think back to exactly the steps, I'm assuming, with the limited knowledge I have, I went to the computer icon opened up the thumb drive…"

Det. MacKillop testified that he picked the laptop and the thumb drive up off the floor and placed them on the desk in the bedroom. He plugged the thumb drive into the laptop, assuming because he kept his photos on a thumb drive that the owner of the thumb drive might do the same. He assumed that he plugged it into the side of the computer. He testified:

"I believe I actually physically opened up the computer icon to access the thumb drive as opposed to waiting to see if it would be recognized, like, sometimes it is on your desktop you have a computer icon usually, an icon saying for your computer, and if you click on it, it gives you access to the drives, the different drives. So then, I would have just clicked on the thumb drive, which would have been, could have been E or F, whichever one it was and then that's when it opened up."

He did not note the names of the files that he would have looked at to get to the photographs. He testified, "In his head, well, I wouldn't know how to perform an analysis of a computer anyway so I wasn't, that wasn't the route I was trying to go. I just opened up something that either said 'photos' or 'pictures' and that would have been it."

When asked how many files he thought he opened before he got to the photos, Det. MacKillop stated, "It would have been the thumb drive itself and then, yeah, in my recollection these different icons would have been there, what contents are on the thumb, thumb drive so two steps maybe."

It was put to Det. MacKillop that he did not see an image of a firearm and he stated, "When I opened it the first pictures I saw would have been what we've discussed earlier being the child pornography so then I didn't keep looking so I don't know if there was one located during the analysis or not."

Det. MacKillop was not aware that there were other computers in the apartment. He testified, "No. None were seized so I didn't – I have no notes of any other computers."

Det. MacKillop said that when he saw the images he immediately called Sergeant Bryden. He agreed that he told Sgt. Bryden about the images. When asked where exactly he told her he located the images, he stated, "I told her on a thumb drive, I believe." Asked, "Not on the computer?", he stated, "I don't know if I – I don't think I said that. I'm not sure why I would have referenced the computer as opposed to the thumb drive, but again, I don't have notes for that conversation so, I'm sorry."

When asked whether it was okay that he did not have notes because he had an independent recollection, he stated, "No, I recall talking to her but I don't remember verbatim what I actually said to her."

He agreed that he was seeking legal advice as to how to deal with the images he had found and that he had no notes of the conversation.

He testified, "We discussed, well, yeah, at first we discussed why, how we were in the residence. Like, my grounds for being in the residence." He testified that he told her that they were in the residence executing a 487 Criminal Code search warrant.

He could not recall and had no note of whether he told Sgt. Bryden about the Facebook image that he had seen earlier.

He continued, "And at that point, I explained to her that I'd found the thumb drive, plugged it into computer, I explained to her what images I saw and she advised that as far as evidence, further evidence, evidence of a further offence, to seize it under section 489.1."

Asked whose decision it was to seize the laptop as well as the thumb drive, and whether it was Sgt. Bryden's advice to seize it, he stated, "I, I believe so, yeah".

He agreed that even though he told Sgt. Bryden that the only images he had seen were on the thumb drive and that he had not accessed the computer she told him to seize the computer and the thumb drive, he stated, "Correct".

He agreed that he had not seen any child pornography images on the computer. He agreed that at the time of the search he had no information as to whether or not Justin Dufaure was on Facebook.

Det. MacKillop had no idea whether other officers were tasked with returning to the apartment after November 11, 2010. He agreed that he never saw a hard copy of the photograph of the AK47. He stated, "Not to my knowledge, no." Asked if that was something he would remember, he stated, "I would think, yeah."

Detective Michel Joseph Wilfred Villeneuve

Det. Michel Joseph Wilfred Villeneuve, an Ottawa Police Officer, working in the High Tech Crime Unit, performed the forensic analysis on two electronic devices.

Exhibit 7 is an affidavit of Det. Villeneuve that contains a statement of his qualifications and his report. There is no issue as to his qualifications as an expert witness to give expert opinion evidence in the field of forensic computer analysis and the interpretation of data files and data that is created and stored by a computer and how the computer used the file.

Det. Villeneuve testified that there were four devices turned over to him but of the four only two were of interest to the investigation, a laptop computer and a USB thumb drive that includes any deleted files. Det. Villeneuve's function is to first make an exact copy of the laptop hard drive and the information on the thumb drive, the Encase software.

The next step is to run what is known as C for P and C for M scripts for pictures and movies. The only function is to extract data and the software will extract deleted files as well as that remain. The data is then given to the investigator to categorize, i.e. whether it is child pornography or not. Once the investigator categorizes the images the forensic report will be completed or if there is a need for further analysis on the device the analysis will continue.

Det. Villeneuve also analyzed the data on the laptop and the thumb drive for personal documents, photos that would relate to a particular person or other persons that would have had an opportunity to use either. He found that there were several versions of a resume, there was a file called KOTD that appeared to be digitally signed by a person named Justin. There were several pictures. In the picture library of the J profile and "J profile" means that when the Windows environment is set up for the first time it asks for a name that you would like the use to be called and this one is name J. Everything he found was under this profile was called "J". There was just one profile on the computer. There were personal photographs that Det. Villeneuve compared with Justin Dufaure when he saw him in court and the photos found on the computer did resemble the likeness of the individual sitting in court. A mobile phone was backed up on the laptop. There was a sub-folder within the HTC Back Important file called "images" and within the "images" of the backup of the mobile phone was a picture that Det. Villeneuve included in his report to what he felt was the responsible user.

The photo attached to the Yahoo Messenger profile set up on the laptop was consistent with a facial shot of a similar-looking male, wearing mirrored sunglasses. The photo was associated with an Ambershipz profile. Within the Ambershipz profile, Det. Villeneuve found conversations between Ambershipz and another individual that was suggestive that they were trading child pornographic images. Ambershipz is discussing with an individual named Josh GDNG and he is looking for a pic for pic trade. Ambershipz say in the next line, "yound and nude only". The next line Josh GDNG is saying to Ambershipz, "NM too young". "NM" would be short for never mind. The chat date was August 11, 2010. This means that the user of the laptop in question, identifies as Ambershipz and that person sends the message for 'pic for pic' asking for 'young and nude only' photographs. The person Ambershipz reveals an email address of nemesis_70@hotmail.com and Det. Villeneuve was able to trace it back to an MSN Messenger profile on the same computer with a login set up to Justin Dufaure with a mobile number of 613-240-2300 which would allow MSN Messenger to send an instant message to that person even if they are offline.

Det. Villeneuve believed that the responsible user of the laptop was Justin Dufaure.

Det. Villeneuve was able to find usage of the program U-Torrent and some of the torrent files that were downloaded to the laptop had file names that there were very suggestive that their contents were of child pornographic nature. However, he was unable to find the actual downloaded completed file. It told Det. Villeneuve that the U- Torrent program was downloaded and had started but whether or not it was completed was unclear. This meant that a person had selected and taken a step to attempt to download a file but had not completed the download which would have required a double click on the file found and load it into U-Torrent to begin the download process. Torrent is a file sharing method commonly used on the Internet to share.

Det. Villeneuve also found several programs on the computer designed to hide and destroy digital evidence, for example Folder Password Expert, Lock Box, Free Hide Folder, Storage Crypt and Tune-up Utilities 2010. The user would have to search the Internet, download and install the programs. The programs are designed to completely eliminate all evidence of any file folder, or whatever it is that the person is trying to conceal.

Concerning the thumb drive, MV002, there was nothing unusual about it. It is possible to password protect a thumb drive but this thumb drive was not.

A similar program to Encase is used. The thumb drive had in excess of 32,000 files most of which were actual images.

Det. Villeneuve looked for items to identify a particular user. There were three different versions of a resume of Justin Dufaure on the thumb drive. The first two versions were exact binary copies of the resumes on the laptop. The resume files were downloaded onto the thumb drive at 12:08:14 on November 10, 2010.

Link files are created by the operating system on the laptop hard drive, unknown to the user. The link files are contained in the J profile on the laptop and their only purpose is to speed up the loading. The operating system creates the link file when the image clicked on requires the use of another program to launch and/or view the image. The link files indicate that the link files resolve to file names that exist on the thumb drive and that indicates that a person would have double clicked on the certain image files from the thumb drive and viewed them on the laptop. The link file list is attached to his report. Det. Villeneuve only included the links that were what he believed to be images of child pornography on the thumb drive. Each of the links listed have a date of November 9, 2010 with times ranging from 04:55 to 05:12.

The thumb drive did not have an operating system or computer applications, similar to what is found on a laptop computer. Det. Villeneuve described a thumb drive as being more for storage or back up of personal files, pictures, movies, documents, and things like that.

The thumb drive in question contained mostly pictures and only the three versions of the resume of Justin Dufaure. He identified the responsible user of the thumb drive as Justin Dufaure because of the three resumes and because the laptop computer generated links that were evidence of certain files on the thumb drive, being opened on the laptop. He testified that a thumb drive does not generate anything. It is what the user would put onto a thumb drive and how the operating system records that information and in this case the operating system recorded the information that the thumb drive linked to this laptop. He was only able to find evidence of a single user and that was Justin Dufaure.

In cross-examination, Det. Villeneuve agreed that there were four devices submitted to him for testing. Of the four devices only two had child pornography on them. As a result, Det. Villeneuve did not mention the other two in his report, and could not recall what the other two were. He had run the Encase system through the other two devices, creating an exact copy and previewing them.

Det. Villeneuve testified that the other two devices could have yielded indicia of ownership or other documents belonging to other people who might have been living in the apartment, but because he did not examine them he did not know what information was on the devices. He did not examine the devices because they did not contain child pornography. When asked how he knew that, he stated, "Because I previewed them". Previewing is looking for all the images and all of the movies for any child pornography content. If they do not contain any then it's of no use to examine it.

He did not check to see if the devices had been used on the laptop because there was no child pornography indicated.

Det. Villeneuve testified that Encase, in most cases, can defeat all of the password protected programs and enable a forensic examiner access to the contents. The programs were not on the thumb drive but operating through the computer. Det. Villeneuve was able to determine that the laptop was password protected because the last change of password was noted as 27 November 2009 in the J profile.

Det. Villeneuve agreed that anyone can create an email account and name it and there is no way to check the source. He agreed that it was rare for someone who is in possession of child pornography to use an actual self- photograph on a chat service where pictures are being exchanged. He also agreed that once the profile is set up anyone using the computer, the date would be stored under the original profile name unless a second profile was created. He agreed that there was no way to tell whether someone else in the apartment was using the J profile.

Det. Villeneuve testified that he was told that the laptop and devices were related to a drug search and then an officer had found child pornography. He could not recall whether he was given Justin Dufaure's name or anything like that before he started his search. However, he testified that the name would have been on the police report and he would have seen it. He agreed that if he had that information, he would be looking for his name to determine the name of the responsible user. He would have used the information to search for his name. He testified that he was not provided any other names. He stated that from the documents and other files on the computer he could not find any other personal data to anyone else. He testified that he was given the name Justin Dufaure when he was given the go ahead to complete his full forensic report after he had determined that there were images of child pornography.

Det. Villeneuve agreed that there are legitimate purposes for data-shredding programs.

In re-examination, Det. Villeneuve identified MV003 was a gray USB device, and MV004 was a flash memory card, something typically found in a digital camera or cell phone. He would have received those items with the MV001, the laptop, and MV002 the thumb drive from the property room.

Sergeant Adam Coakley

Sergeant Adam Coakley, an Ottawa Police Service officer since 1990 was an investigator with the Internet Child Exploitation and High Tech Crime Unit in November 2010. He was a forensic computer examiner. He categorized the images found on MV001 and MV002 in this case.

There is an admission that there were 7,730 child pornography images, 3,830 of which were unique images, on MV002, the thumb drive examined.

Sergeant Coakley viewed each image and provided a sample of 25 images, see Exhibit 9. Sergeant Coakley provided evidence as to the nature of the images. Sergeant Coakley would categorize images of children under 14 years of age as child pornography. If he had doubt about the age he did not include it in child pornography but would place it in adult pornography. There was also a category of child relevant meaning a child modeling in full clothing or something similar. The fourth category is other and category 5 is obscenity predominantly adults having sex with animals. To distinguish unique, it means that if there are four identical images, one image would be counted in the unique column and the other three would be added to the totals column.

There were four child pornography movies found. He classified the movies as child pornography but put them as 1 (1 out of 10), 10 being baby rape, in terms of abhorrence. He testified that the movies contain a lot of children dancing and posing. One simulates oral sex on a banana that she attaches to a monkey. They rub oil on each other and occasionally the camera will focus on the buttocks area. He placed them at the lower end of the scale of abhorrence.

Of the 7,730 images, Sergeant Coakley testified that 70% came from a series of photographs that would start with the child fully clothed or nearest to it and generate down to pictures of child pornography. 30% were others and they would predominantly be children interacting with adult males, the children all being females. He testified that by interacting he meant "children being orally, anally and vaginally raped by adult male penises". The oldest would have been 14 years old to an infant.

In terms of the infant participants, the level of abhorrence, Sergeant Coakley categorized it as "quite high", some as high as 9 out of 10, 10 being "knives to the babies' throats".

Sergeant Coakley could not give a proportion concerning the youngest, in terms of simply posed photos versus actual sex abuse happening. He could not say whether the images included one, the other or both. However, he testified ultimately that the images were a mixture of very young children being sexually assaulted and there were pictures of very young children posing. He testified that for posing the youngest was around 5 years old and for interaction with adults it would go down to infants, one year old to one and a half years old.

Detective Hassan

Det. Mahad Hassan, an Ottawa Police Service officer for 11 years was on duty on November 11, 2010. He has been with the Guns and Gangs Unit since 2007. He has been a Detective in that unit since March 2009.

Det. Hassan testified that he had drafted at least 12 search warrants over the course of his career. He understood that his approach in drafting an Information to Obtain a warrant, was "fair, full and frank". He testified:

"Because it has to be fair. It has to be frank and it has to be full – you can't put information that will support you getting a warrant, but at the same time would give the issuing justice maybe a doubt that this warrant shouldn't be issued, so you can't keep something back just to get a warrant issue."

Det. Hassan testified that the first time he had knowledge that there was a Facebook picture related to this case depicting a weapon would have been November 10, 2010. He was not aware of the photograph when Cst. Cleroux would have noted it in his notes on May 6, 2010. Det. Hassan testified that Cst. Cleroux would have submitted his report on May 6, 2010 but he did not read it until November 10, 2010.

Det. Hassan testified that he received information that Cst. Cleroux's had information that Joshua Dufaure, the brother of Justin Dufaure, was in possession of a weapon described as an assault rifle or AK47. Det. Hassan's understanding was that the image was on Facebook. He never looked at Facebook and personally did not know whether it was a Facebook. To his knowledge between May 6 and November 10, 2010 nothing was done to try and retrieve the photograph. He testified that that was something that Cst. Cleroux or Det. MacKillop could answer but he did not. He received the information concerning the image on Facebook on November 10, 2010 and he did not have access to the Facebook account and did not look at the Facebook account. Det. Hassan testified that in order to access someone's Facebook account, it depended on whether it is an open account where anyone can access it otherwise you have to friend the person to have access to their Facebook page.

Det. Hassan had information that the image was on Joshua Dufaure's Facebook. Det. Hassan prepared the warrant on November 10, 2010 for execution on November 11, 2010. He applied for a Telewarrant that night and was advised that it would be a three-hour wait. He contacted the Telewarrant centre in Newmarket at 10:34 p.m. He faxed the initial request advising the justice of the peace of the type of warrant. There is a response that could be "send now" or sometimes "other warrants ahead of you so it will be about three hours", they will give you an estimate.

Det. Hassan testified that there was no effort made during the day to appear before a regular justice of the peace in person because, it was Remembrance Day and the courthouse was closed. He did not make any attempt on November 10 because by the time he had all of the information it was past 4:00 p.m. and there was no justice of the peace available.

Det. Hassan classified the investigation/warrant as an urgent matter because he had reason to believe that the firearm might not stay where it was for long. He did not indicate that in his Information to Obtain. He believed that if he had identified the source of that information he would have had to seal the Information to Obtain, so he did not put the words that the gun might be moved in the Information to Obtain. He did put in the Information to Obtain that people who own firearms may tend to hang onto them for a while indicating that may be a belief for believing that the firearm would still be there.

Det. Hassan included in the Information to Obtain that there had been no major investigation into either of the Dufaure brothers because:

"[] at that point the information he had was that the gun is still there and they were keeping it, and it's my belief – unlike drugs which is sold, people that own guns will keep it. What I'm – the urgency, what I'm worried about was that gun was gonna be moved, 'cause people tend to – not necessarily the accused, but in general, people that have firearms tend to move their guns from time to time, because they don't want the police – because they hanging onto it longer as opposed to drugs."

Det. Hassan had information, the day he applied for the warrant, that the gun was in the Dufaure apartment. He heard after the fact that the gun was on the 9th floor of 2020 Jasmine. He testified that if he knew the gun was on the 9th floor he would not have executed the warrant. He testified that he would have re-applied with the additional information, if there was additional information, trying to obtain a warrant for where the gun would be. He stated, "Like if I don't believe the gun's there, there's no point doing the warrant".

Det. Hassan listed officers Brennan, Lennon, Horner, Det. MacKillop and Det. Ramsay as present at the briefing before the warrant was executed on November 11, 2010. Cst. Cleroux was not present at the briefing.

Det. Hassan explained that the briefing is mandatory and the operational plan is discussed. The Guns and Gangs investigators and the Tactical team members are present along with paramedics and someone from Communications, like Dispatch. There will be a duty inspector. It is to provide information as to why the warrant is being executed, i.e. that I'm conducting an investigation and have information that for example, Justin Dufaure is in possession of this. I have applied for a warrant and that the warrant was issued by a judge or justice of the peace and it is valid for this date. He would then go through who the target person is, and the location.

Det. Hassan testified that at the briefing there was discussion about the Facebook photograph. Det. Hassan would have mentioned that there was information that there was a picture on Facebook showing a certain type of firearm. He told them that they were looking for an AK47 and a handgun and he explained that there also information from C.I. information that this picture of the long gun which is the AK47 on Facebook, but that he had not seen the picture.

Det. Hassan testified that he was not looking for the picture, he was looking for the gun on November 11, 2010. He testified, "If I find the gun, that picture had no evidence value at that point because the picture – just having the picture doesn't make you criminal, you're not committing a crime unless I can prove otherwise." He testified concerning the image being on Facebook, "My personal opinion is, who put it there? How can I prove the accused put it there? I can't. I'm gonna mention it 'cause that's the information I have and I have mentioned that. But when I went there, if you look at my I.T.O., the items to search for, I'm not searching for a picture."

He agreed that he was not searching for receptacles that could hold pictures such as a thumb drive.

Det. Hassan arrived at 4:45 p.m. at 2020 Jasmine. He went to the back of the building in anticipation of items being thrown out the window. He saw a bag of what he believed to be cocaine tossed and land in the backyard on the first floor. He got Det. Ramsay to stay with the evidence and Det. Hassan went upstairs to the apartment that had just been cleared by the Tactical Team. He showed Ms. Seguin, the accused's mother, the original copy of the warrant. There were 6 or 7 Tactical Unit officers. Ms. Seguin was in custody at that point along with Justin Dufaure, the younger brother, Alex, and two friends. Det. Hassan did not have any dealings with Alex or Ms. Seguin. He testified that he would have said to Alex, "You didn't do anything bad. We gonna be out of here shortly". He thought police asked Alex and Mom to go somewhere else while we finished our search and then they could come back to the house. He believed that an officer originally took custody of Alex and Ms. Seguin and then an officer drove them somewhere.

Det. Hassan was present for the search of the apartment along with Det. MacKillop, Tessier, Seth Curtis and Ramsay. Cst. Cleroux was part of the D.A.R.T. and they attended to transport some of the people that were in custody. Det. Hassan did not know, 100% whether Cst. Cleroux was there but he knows that his unit was there so that if he was working, he was probably there.

He told Ms. Seguin that they were there to search the apartment, and that they had judicial authorization to conduct the search as well as the items that they were searching for.

Det. Hassan denied telling Ms. Seguin that she might be at risk of losing Alex to the Children's Aid Society (CAS). He stated, "No. No, that's not my style. I don't like scaring people. I didn't think she committed an offence."

Det. Hassan agreed that he did make comments about the condition of the apartment. He testified, "I remember asking her where the kid lived and it was sectioned off with curtains". He was talking about Alex. He testified:

"The apartment was extremely dirty, there was clothes everywhere and I remember – I might have said, if I recall correctly, that just because you don't have a lot of money doesn't mean you have to live in a dirty place. You guys can clean up. You have a kid here."

He testified he would not have said anything about the CAS. He stated, "I would not – if I feel there's something going on, I will call CAS right there and then".

Det. Hassan testified that the search lasted two hours. He was satisfied that there was no gun in the apartment.

Det. Hassan was asked again whether he would have said anything to Ms. Seguin about not finding the guns and CAS. He stated, "I would not say that to her, I can guarantee that".

Det. Hassan was questioned as to why he wrote in paragraph 37 of the ITO that the source had indicated that the rifle and the handgun would be stored in an apartment on the 9th floor. Det. Hassan testified as to the reason he included that in the ITO as follows: "Cause I'm being full, fair and frank".

He testified that on November 11, 2010 he took no steps to search the apartment on the 9th floor because the information that the guns might be store in the 9th floor apartment was from October 13, 2010.

Det. Hassan testified that there was an investigation conducted concerning the 9th floor, but that there was no apartment, it was just information that the C.I. believed the gun is on the 9th floor. On November 10, 2010 he had information that the guns are at their apartment, apartment 818.

Det. Hassan acknowledged that he received a screening request on or about December 19, 2012 asking for information about anyone who attended or at any point attended the apartment and spoke to Ms. Seguin after the warrant was executed between November 11 and November 20, 2010. Det. Hassan never re-attended the apartment. He asked officers Brennan, Cleroux, Seth Curtis, his sergeant, Gilbert, the expert from Drugs, Kunsken, Lennon, both Tactical officers, Det. MacKillop and Munro, Pulfer, the Sergeant for D.A.R.T, Murphy, part of D.A.R.T., Ramsay, Rowan who was Tactical, Seguin, part of D.A.R.T. Tessier, part of Guns and Gangs Fierra, Tactical and Walrond, D.A.R.T. He could not get in touch with Officer Horn who was retired. Det. Hassan heard back from all of the officers and all indicated that they did not re-attend. No one indicated that they went back. As far as Det. Hassan was concerned he was done with that apartment on November 11, 2010.

Det. Hassan testified that he may have left his business card with Ms. Seguin as that is his usual practice. He usually leaves a copy of the warrant as well.

Det. Hassan agreed that the spelling of Dufaure was not the correct spelling of Dufaure.

He agreed that the ITO indicated that a CPIC records check determined that Justin Dufaure has a criminal record for assault and utter threats, assault peace officer and theft under and further that he's prohibited from possessing firearms under section 110 of the Criminal Code of Canada. He testified that those statements were not true.

He agreed that later in the ITO he wrote that Justin Dufaure did not have a criminal record. Det. Hassan explained that it was a mistake that he made. He did not realize that he made that mistake. He stated, "It was – like you say it, my warrant named two people, two brothers, the accused before us, Justin Dufaure, and his brother Joshua Dufaure. So when I'm typing, I made a mistake of paragraph 48 was supposed to talk about Joshua, not Justin, and I put Justin instead of putting Joshua."

When asked whether he had information that Joshua had a weapons prohibition, Det. Hassan stated, "I believe so".

He agreed that paragraph 48 should have read Joshua instead of Justin.

In cross-examination, Det. Hassan testified that he believed that the bag of cocaine had come from Justin's Dufaure's bedroom. The window had an air conditioner in it and it was the only apartment with an air conditioner with white plastic.

Det. Hassan was asked whether, at the time he wrote the ITO and warrant (Exhibit 1), he believed or did not believe or had no opinion as to whether it was likely that the Facebook photo was in Joshua or Justin Dufaure's apartment. He stated, "Other than the information that we received from the source that indicated that, I had no other information".

Det. Hassan was asked whether based on the information he had listed in paragraph 38, did he have a belief one way or the other that an electronic version of the photograph would be found in the apartment. He stated, "Well, if I believe – and the information I had, and I don't – and I didn't have any other information to indicate otherwise what the photo was taken in the apartment, yeah, there was a likely – there's a possibility the photo could be there, but I didn't have any information to specifically state that."

Det. Hassan explained that it was the first time he had written a warrant where two brothers were involved. He admitted that he should have written Joshua in paragraphs 47 and 48 but mistakenly wrote Justin. He testified that he had no intent to mislead the justice of the peace. He testified that he read it again before he submitted it and had someone else read it over. He had no idea how he missed it but it was his mistake.

Det. Hassan clarified that he did not receive the information obtained May 6, 2010 by Cst. Cleroux and Det. MacKillop from the C.I. until November 10, 2010. He testified that the first time he had knowledge of it was June 1, 2010, and it was source information that had no corroboration, no other information to support. He testified that he had that and on a daily basis police receive a lot of source information, telling you this and that, and he will look at it and if there's corroboration, then he will start an investigation. If there's no corroboration, I know that information's there and then if other information comes at another time, then I will look at it again. So on June 1, 2010 when he looked at – received this information, "I didn't have any other corroborating evidence. Therefore it was my opinion there was not enough to apply for a warrant and I didn't think any justice or judge would issue a warrant based on that information I have."

Det. Hassan testified that Justin Dufaure was arrested and released unconditionally on November 11, 2010. He was told to live somewhere else.

Det. Hassan also indicated that subsequent to the December 19, 2012 request re police re-attendance at the address, he conducted an RMS search to see if there were any reported police visits to the residence and secondly whether there were any reported police contact with Mr. Justin Dufaure. He had conducted several inquiries. There were no calls generated between November 11, and 20th 2010 to 2020 Jasmine. Concerning Justin Dufaure and police contact there was his November 11, 2010 file and a second file not a call or contact but a number created when a person gets charged. There was the November 17, 2010 when Justin Dufaure was charged by Det. Bryden.

There is conflicting evidence concerning the arrest of Justin Dufaure by Sgt. Bryden. Det Hassan testified that Justin Dufaure was arrested by Sgt. Bryden on November 17, 2010 and Sgt. Bryden's affidavit lists December 9, 2010 as the date of arrest on the pornography charges.

Det. Hassan testified that once the firearms were not found, he closed his file on the apartment except that for the drug charges that he laid. He was never contacted concerning the drug investigation.

Det. Hassan was never able to identify the specific location of the alleged 9th floor apartment. He never had any information of any connection between Joshua and/or Justin Dufaure and the 9th floor apartment because a location was never provided. The source provided information on October 13, 2010 that the gun was moved to a 9th floor apartment, no description or information as to who lived there was provided.

Constable Robert Cleroux

Cst. Robert Cleroux, an Ottawa Police Service officer for 10 years, was on duty on November 11, 2010 as part of the Direct Action Response Team (D.A.R.T.). Cst. Cleroux attended the Det. Hassan briefing and was provided with the address, and location where the Tactical Team would be attending to conduct the search warrant and that the general target would be Mr. Justin Dufaure. He had information that his brother, Joshua Dufaure, might also be a target. Cst. Cleroux could not recall whether at the briefing anything about a photograph was discussed.

After the briefing he attended 2020 Jasmine. He was asked to attend the staircase on the 8th floor and wait. The Tactical Team would perform the door knock or door kick and once they enter, anyone inside the apartment would be handed over to the D.A.R.T. officers.

Shortly after the Tactical Team entered they came out with some people who were under arrest. Mr. Justin Dufaure was brought to Cst. Cleroux on the stairway where he remained. Cst. Cleroux place Justin Dufaure under arrest. Cst. Cleroux asked the Tactical Team if there were any weapons in the apartment and was told there was nothing visible at this time but they told him that there were drugs and Cst. Cleroux placed Mr. Dufaure under arrest for drugs.

Cst. Cleroux did not learn whether or not there was child pornography seized in relation to Mr. Dufaure on November 11, 2010. He did not believe that he had a conversation with Det. MacKillop at the scene. He did not have any notes of that.

Cst. Cleroux testified that he probably found out about the child pornography found on a computer in the apartment through the office a couple of days later. He testified that he probably heard about it from Det. Hassan.

Cst. Cleroux was never inside the apartment. When he took custody of Mr. Dufaure, he walked down to the 5th or 6th floor where he read Mr. Dufaure his rights, which he understood. He searched Mr. Dufaure and did not find anything on his person. He brought Mr. Dufaure down to his cruiser and transferred custody to Cst. Walrond. That was the end of Cst. Cleroux's involvement on November 11, 2010.

He denied having any conversation with Ms. Seguin. He does not know what her name is. He did not speak to other young people or any other family members.

Cst. Cleroux testified that he was shown the photograph of the firearm on the C.I.'s cell phone on May 6, 2010. He testified, "That's correct (that the image was on a cell phone), which was provided to me from a Facebook picture." He agreed that he received information that the Facebook page was that of Joshua Dufaure.

Cst. Cleroux testified that he submitted the report when he returned to the office on May 6, 2010. His report would have been sent to the Intel division where it then gets disseminated. He did not take any steps himself to try to capture the image from the Facebook page. He was not aware whether anyone else would have. He did not access Facebook to obtain the photo. He was not sure whether anyone else did. He did not request anyone to do it. Cst. Cleroux testified that he does not have a Facebook. He never had a physical copy of the photograph of the weapon.

Cst. Cleroux recalled receiving an email from Det. Hassan asking whether he had ever gone back to the unit. He advised Det. Hassan that he never went back to the unit after that incident. He testified that after the November 11 to 20 time period, after the incident he has been back to the apartment buildings but he did not recall at the specific address, to the Dufaure residence.

Cst. Cleroux indicated that he answered Det. Hassan's email that during the period specified, November 11 to the 20, 2010 he had not been back to the apartment. He testified that he checked his notes and after the incident on November 11, 2010 he had not been back to the apartment.

Cst. Cleroux denied having a conversation with Mr. Dufaure's mother.

Cst. Cleroux was presented with a document and asked whether he recognized it. He testified, "It's a business card from the Ottawa Police Service, with the Direct Action Response Team".

He agreed that that was his team. He identified the extension number written on the card as 894. He identified his name on the back of the card with his cell phone number, 316-4690. He agreed that that is his cell phone number. He was asked whether he recalled the card to be his. He testified, "I have cards like this, yeah. Yeah."

Cst. Cleroux was told that Ms. Seguin would testify that he gave the card to her at a point after the take down. Cst. Cleroux asked, "Who is Ms. Seguin?" He was told that Ms. Seguin is Justin Dufaure's mother. Cst. Cleroux testified, "I don't recall being there". He agreed that it was his card and that it had his cell phone number on it.

It was put to Cst. Cleroux that he had testified earlier that he had no conversations with Ms. Seguin on November 11, 2010. He testified, "I don't believe I did…I didn't have a conversation."

He could not give an explanation as to why his cell phone number is on the card. He stated, "I don't know. I give out a lot of cards to people when I deal with them, that's how I build informants, that's how I build contacts through the community and stuff and I…"

Cst. Cleroux identified the writing, his cell phone number as his writing.

Cst. Cleroux did not recognize the writing of the second phone number that appeared on the card and did not know what the number, 613-824-60 was for.

The card was entered as Exhibit A.

Cst. Cleroux testified that he had never been in the apartment at any time.

Cst. Cleroux was asked whether he ever worked with a female officer who has very vivid highlights in her hair at some point subsequent to the November 11, 2010 take down. He was not sure, but no. He denied ever having a picture that he used to attend at Jasmine Street.

In cross-examination, Cst. Cleroux provided a copy of his business card and agreed that it was quite different from Exhibit A, see Exhibit 14. It was clean and white, larger than Exhibit A. He testified that his business cards have always been the size of the card he provided. He agreed that Exhibit A looked as ¾ to a ½ inch of the card had been cut off. He agreed that filters put into marijuana joints would be of heavy paper or cardboard similar to the business card type.

Cst. Cleroux agreed that prior to the briefing he had information and knew of the existence of a Facebook picture. He agreed that he could not remember if the picture was mentioned in the briefing but that could mean that it was mentioned and he didn't remember. He testified, "Could be. I was aware of the involvement of the picture, not the picture, but the well, yeah, the photo from Facebook but I haven't – during the briefing I was never shown a picture per se."

He was asked whether he remembered a picture of anything being shown at the briefing. He stated, "I don't recall that day, but normally there's a picture of the house, of the dwelling and where we're going to for Tactical purposes, not that I would partake in that side of the discussion or anything."

He agreed that if a photo of the gun, that was believed to be inside the residence had been shown that would be something he would recall.

He testified that he knew his role in the search was to stand by and be one of the arresting officers. He was not involved in the search.

He did not know where Justin Dufaure was living after November 11, 2010. He was aware that Joshua Dufaure was arrested on November 11, 2010. He was told after that Joshua was charged after but did not know what he was charged with. He was not involved with the investigation. He was not involved in any investigation of Justin or Joshua Dufaure or Ms. Seguin after November 11, 2010.

Exhibit A was admitted as Exhibit 15.

Ms. Ghislaine Seguin

Ms. Ghislaine Seguin, the mother of Justin, 26 years old and Joshua, 23 years old, Dufaure, testified that she lives at 2020 Jasmine Crescent, apartment 818. She lives there with her youngest son, Alex.

In November 2010 all three boys lived with Ms. Seguin in the apartment.

Ms. Seguin testified that on November 11, 2010, police arrived at her door around 3:00 or 3:30 p.m. She remembered a loud knock at the door. She looked through the peep hole and thought Justin's friends were playing a joke and she opened the door. A woman grabbed her out by the chest and that was when she saw all of the other police officers come through. She remembered that she screamed that there were kids in the house. She and Alex were handcuffed and put up against the wall. Ms. Seguin did not get the name of the officer who handcuffed them. She, Alex and two friends of Justin's, Matt Aubin and Jay McKinnon, were walked down the stairs. Ms. Seguin testified that Justin was walked past them and then they, Ms. Seguin and Alex, were taken outside for a while. Ms. Seguin testified that while outside she saw Joshua coming. Joshua was yelling. He had been out shopping with his girlfriend. Joshua started coming out from the back of the building with an officer and he started to yell and scream, "Uncuff my mom and my brother" and the police did. The police car pulled up and the police let them, Ms. Seguin and Alex, get into the cruiser. After a while, Ms. Seguin and Alex were allowed back into the apartment. Ms. Seguin testified that police were still inside the apartment "throwing stuff around" when they brought her back in. Ms. Seguin testified that police kept Alex in the hallway and that is when she heard Det. Hassan say that there's child pornography and where were the guns again, and she said that she didn't know. She said that Det. Hassan told her that he had grounds to call the CAS on her because of the state of her house. She testified, "'So, where are the guns?' and then she just went on begging him not to take Alex but there was nowhere I could tell them to look."

Ms. Seguin testified that she was begging Det. Hassan and he still didn't believe her and Det. Hassan said that they were going to come back if they had to. Ms. Seguin testified that Det. Hassan didn't believe her about the guns. Ms. Seguin testified that she had no idea what he was talking about when he asked about the guns.

Ms. Seguin testified that Det. Hassan was the first officer to say something to her about the child pornography and then another officer asked her how old Justin's girlfriend was. She testified when asked what the officer's name was, that he was a "white guy". She described Det. Hassan as black. She said that she couldn't tell the other guys because they all had – she couldn't really see anybody else's face because they had the masks.

Ms. Seguin testified that the white officer asked her how old Justin's girlfriend was and she told him, "old enough to go to Hull" and she remembered asking the same officer if Alex was on those because he was adamant that there were pictures or something and he said no Alex wasn't on there.

Ms. Seguin testified that this conversation was taking place in the door way of the apartment because she could not get in because there was so much stuff thrown all over the place.

Asked if that was the end of her involvement with police that day, she stated, "That day? Then I think – yeah, Det. Hassan gave me a card and then a piece of paper saying that they were looking for the four guns or something and then they pretty much left."

Ms. Seguin was asked whether she knew if the officers took Justin's computer, she stated, "Yeah, I think so. Yeah." Ms. Seguin testified that there were four computers in the apartment and they did not take the other computers. She testified that Joshua had a computer in the apartment. She was asked whether police accessed it and she stated, "I don't know, they've never really – I didn't see them go in his room. Like, I know they were in there but I didn't see anything." She testified that they did not take Joshua's computer that day.

Ms. Seguin confirmed that she did not speak to any officer but Det. Hassan that day.

At the time Ms. Seguin slept in the living room and Justin and Joshua each had one of the two bedrooms.

Ms. Seguin testified that Justin was taken by police that day and she did not let him return to the apartment because police were saying the child porn charge and all these other things and she was afraid, she didn't know what was happening so she didn't want him to come back.

Ms. Seguin knew that Justin was released that night but she did not let him return to the apartment.

Ms. Seguin was asked whether the police ever returned to her home. She stated, "Yes"…"I thought it was a couple of days after…a few days later 'cause there was still broken doors and stuff I was trying to sort out. And it was early in the morning and…God, it was before Alex was up so it had to be around 7:30 – 8:00 a.m. I could say".

Ms. Seguin stated:

"When they knocked, I was talking through the door at them and I asked them if they were here to wreck my place again and they said no. And then I seen the lady detective that was with him, so I thought, okay, there's a girl at least, like it's okay to open the door 'cause they promised not to wreck my house. They just wanted to talk."

Ms. Seguin remembered that she was wearing p.j.s because the male officer told her that "her p.j.s were cool". She said the officer's name was Rob. She did not know his last name at the time and did not know his last name as she testified. She testified that he was a big guy. It was put to her that a lot of them are big guys and she stated, "Well, he's really big. He's really tall". She testified that he's white. She said that his hair was "like a lighter colour, blondish. I noticed more the girl 'cause she had really cool highlights." She remembered that because she colours hair. She thought it was not even a week that went by when the two officers returned. Asked if it could have been later than that she stated, "I'm not sure". She believed that the female officer was in her early thirties as was the male officer. She did not recall whether she saw the officer on the night of the takedown.

Ms. Seguin testified that the male officer had a picture with him and the officer asked her if he could see her kitchen. Ms. Seguin stated that she went in the kitchen with him and she and the officer were both looking at the picture and it wasn't her house. It wasn't her floor and it wasn't her chair.

Ms. Seguin testified that from there the officer asked her if she knew where Justin was and she said why. The officers said that they just wanted to talk to him and convinced her that they just wanted to talk so she called Justin over at Jay's. She testified that the police officers were still there when she called Justin. She testified that Jay was present in the apartment on the night of the takedown. Ms. Seguin convinced Justin to come out 'cause they were just supposed to talk and then she guessed that they went to see him and a few hours later she received information that Justin was in jail and for the child pornography.

Ms. Seguin testified that the male officer gave her his card and his phone number – he wrote his phone number down in case she had more questions. Ms. Seguin recognized Exhibit 15 as the card the male officer left with her. She testified that he wrote his name, Rob, on the card. Ms. Seguin testified that she wrote the other number on the card. She said that the last number was missing on the card. She testified that the number she wrote was the number for the jail. Ms. Seguin testified that she called the officer to ask him what was happening and he gave her the number to the jail.

In cross-examination Ms. Seguin agreed that Exhibit 15 does not look the way it looked when it was given to her. She stated, "No, I've written on it and then it stayed in the bottom of my purse and went everywhere".

She testified that it was not filed away but carried in her purse for a long time after.

Ms. Seguin agreed that she provided it to Justin's lawyer's office within the past few days. She testified that besides being in her purse it was probably on her dresser somewhere, just around her area where she stays in the living room.

Ms. Seguin agreed that she portioned off a portion of the living room with a couple of wall units and a curtain, as her bedroom. Ms. Seguin agreed that Joshua and Justin no longer live in the apartment but she had not yet moved into one of the bedrooms because they were painting it. Joshua had just moved out two weeks prior to May 28, 2013. Ms. Seguin does not have a criminal record. She was aware that Joshua has a criminal record. She agreed that the two times she described police coming to the apartment on November 11, 2010 and the week later, were not the only times police had been to the apartment. Ms. Seguin had lived in the apartment for 11 years and police had attended the apartment during that time concerning Joshua. She agreed that Det. Hassan gave her his business card when he left the apartment on November 11, 2010. She agreed that it was not unusual for a police officer to give out business cards. Ms. Seguin testified that she did not remember seeing the male officer who attended her residence a week after the takedown on November 11, 2010. She stated, "Not that I remember". Ms. Seguin testified that the male officer, who attended her residence a week later, gave her the business card and wrote his name on the card. She agreed that on Exhibit 15, there is only the name of a specific police section or unit. Ms. Seguin agreed that she did not have the name of the female officer. She disagreed that the name "Rob" that the male officer told her comes from the name "Rob" on the business card. She stated, "He told me his name was Rob". She could not recall whether the female officer introduced herself. Ms. Seguin agreed that the card was not in good shape, folded and clear that it had been handled. She agreed that other than calling the officer to find out what happened with Justin, she had no other use for the card. She had no reason to handle it. She stated, "No. Not really. I just kind of put it back in my spot where I am". She agreed that she wasn't picking it up and handling it on a daily basis. When asked whether it looked to her as thought it was handled quite a bit, she stated, "yeah, well, bottom of my purse."

She agreed that it was obvious that someone had cut the card. Ms. Seguin was asked whether she cut it. She stated, "I don't recall. I don't know". Ms. Seguin was asked if she didn't cut it, it meant that someone else handled it. She stated, "They might have". She agreed that the card had been in locations where other people had access to it, including anyone in the apartment. Ms. Seguin had no idea when the card was cut.

Ms. Seguin was asked whether she had ever seen anyone smoking marijuana in her apartment. She stated, "Have I…? Yes." She was asked whether she had ever seen someone make a joint and use a piece of cardboard to make a filter for a joint. She stated, "No". She denied that she smoked marijuana. Ms. Seguin was asked whether a person smoking marijuana in the apartment, would have smoked it in the living room. She stated, "Probably outside on my balcony". She agreed that the balcony door was off the living room. She testified that if a person was smoking marijuana and rolling a joint that would be on the balcony, "Oh yeah, not in the house". She testified, "That was just my girlfriends and it's never in the house". Ms. Seguin was asked what is never in the house and she stated, "If they do that it's always outside on my balcony". Ms. Seguin was asked whether she was saying that the only persons to smoke marijuana in her apartment were her girlfriends and she stated, "Some of my girlfriends". She was asked "And no one else" and she stated, "No". Ms. Seguin was asked whether she was aware that marijuana was found in her apartment and she stated, "Yes". She knew it was found in Justin's room. Ms. Seguin was asked whether she was saying that Justin has never smoked marijuana in her apartment and she stated, "Well, they might've. Like I'm in and out. I've smelt something but I wasn't – I wasn't sure." It was suggested that her sons or someone else smoking marijuana that it was possible that on some occasion it was smoked in the apartment and the place that the joint would have been rolled was in the living room. She stated, "Maybe, I guess. I don't – I don't know".

Ms. Seguin agreed that prior to the search there were a lot of clothes in the apartment but that they had laundry baskets. She agreed that she was saying that the police threw or caused clothes to be strewn all over the place. She was asked, "And so you're saying it's impossible that a police officer going into your apartment, obviously before starting to search, they would not have been walking in and noticing clothes on the floor?" She stated, "No". She stated that it was impossible because everyone had hampers.

Ms. Seguin agreed that she was totally unable to give a day when they returned to the apartment. She stated, "That's right. I can't remember". She agreed that she had not seen the two officers since and has been unable to get their names or find out who they were. She agreed that she has not had any dealings with them since and had not seen them. Ms. Seguin agreed that she had been outside the courtroom waiting to testify that day.

It was suggested to Ms. Seguin that the officer who arrested Justin was Corey O'Neil. She had never heard of that name before.

It was put to Ms. Seguin that she was saying that Det. Hassan said something about calling CAS because of the mess in her house but she was saying that the home was not messy when he showed up. She stated, "No. No…I might not have done my dishes, I don't know".

Ms. Seguin was aware that the reason for the trial was that there were thousands of child pornography found on Justin's thumb drive and that there is a connection to his computer as well. She stated, "I've been told, yes". She was aware that it is a very serious crime and could include a lengthy prison sentence. She agreed that she did not want him to go to prison.

In re-examination, Ms. Seguin was asked whether she would lie under oath for Justin. She stated, "No". Ms. Seguin was asked whether she kept the business card Det. Hassan left her. She stated yes, that it was in her purse. Ms. Seguin produced the card from her wallet, inside her purse. The card produce has the name Direct Action Response Team with Ottawa Police on the back of the card. There is no police officer's name on the card. See Exhibit 16.

Admissions and Other Evidence

Exhibit 17 are the admissions of Det. Ramsay's evidence.

Exhibit 18 is the transcript of the interview Det. Ramsay conducted with Justin Dufaure on November 11, 2010. It is admitted as evidence of the conduct of Det. Ramsay, not for the truth of its contents or as a statement by Justin Dufaure.

It is admitted that the number to the jail is 613-824-6040.

Legal Analysis

Crown's Objection to Defence Evidence

I have considered Mr. Geigen-Miller's objections and find that the evidence is admissible and properly before the Court as part of the section 24(2), pattern of behaviour by police, that has to be considered by the Court. The Garofoli application was withdrawn and the section 8 breach admitted and therefore there was no reason to continue the application to cross-examine Det. Hassan on the Information to Obtain the warrant. However, Det. Hassan's evidence was admissible as part of the Defence case at trial and admissible as relevant to the section 24(2) argument. Defence Counsel did not cross-examine Det. Hassan on the Information to Obtain as Det. Hassan was a Defence witness. It was the Crown who was in the position to cross-examine the witness.

Concerning Det. Ramsay's evidence, the Crown was aware of the section 10(b) argument and notwithstanding that the Crown was not seeking to have the accused's statement to Det. Ramsay admitted as part of the evidence, the evidence surrounding the circumstances of the taking of the statement was relevant and admissible as evidence laying the foundation to the section 24(2) argument.

Charter Breaches

I find that there were several breaches of Mr. Dufaure's Charter rights that began with Det. MacKillop's warrantless search of the computer and thumb drive that he found when searching bedroom #2 on November 11, 2010. There was no state of confusion of the law concerning the privacy interest and the necessity of a warrant to search a personal computer found in a bedroom in November 2010. Det. MacKillop may not have known exactly what the law said, but the law was clear at the time. I find that in order to access the thumb drive, Det. MacKillop accessed the operating system of the computer and did so without any authorization.

What is wilful about the unauthorized search is the fact that Det. MacKillop, an experienced officer, had read the warrant and the Appendices that were clear that only the firearms, vest, and a handgun were authorized and he was aware of that going into the apartment. Det. Hassan confirmed that at no time during the briefing or in his warrant did he indicate that any photograph formed part of the search. Therefore, there is no justification, for the search of the Facebook photo on November 11, 2010. The Crown has conceded that point but submits that the breach is made palatable by the fact there would have been grounds to search for the photo if it had been included in the warrant and that the computer and thumb drive were in plain view. The fact is that no photograph, computer or thumb drive was included in the warrant and Det. MacKillop knew that. He had no basis to search the computer or thumb drive. As a result, it cannot be said that Det. MacKillop acted in good faith in searching the computer. It is inconsistent that Det. MacKillop testified that he did not search the computer for the photo of the firearm but did intentionally insert the thumb drive into the computer and search it because the fact that he did not search the computer indicates that he knew that he had no grounds to search the computer under the warrant. It is also inconsistent that he did not search any of the 4 cell phones he seized in bedroom #2 but thought that he had grounds to insert the thumb drive into a computer and search it for photographs when no photograph was listed as an item sought in the warrant. The search of the computer and the thumb drive, because he had to use the computer programs to access the images on the thumb drive, is not evidence covered by the search warrant or section 489 of the Criminal Code.

The breach is exacerbated by the fact that Det. MacKillop has limited notes about the search of the bedroom and especially of what occurs after he finds the child pornography images. He has a conversation about his authority for being in the residence, the warrant he is working under, what he has found and what he should do with Sgt. Bryden but has no notes of the conversation. There are gaps in his memory concerning the conversation. The lack of notes was a problem with Cst. Cleroux who attended the briefing before the execution of the warrant but had no notes and no memory of what was said or shown concerning the photo of the firearm.

What evidence there is of the conversation is that Det. MacKillop did not tell Sgt. Bryden that he was present in the apartment executing a warrant authorized by Telewarrant or that he had no authority to search the computer or the thumb drive. Det. MacKillop recalls telling Sgt. Bryden that he only searched the thumb drive but Sgt. Bryden reports in her Information to Obtain the warrant to search the computer and one thumb drive that Det. MacKillop told her that he had searched the computer. Det. MacKillop is told to seize the computer and the thumb drive and seizes the computer, a black thumb drive, a gray thumb drive and a flashcard. Sgt. Bryden is not informed of the gray thumb drive or the flashcard being included in the items seized. Sgt. Bryden never looks at the items seized before writing her Information to Obtain or she would have seen that there were two additional items, the gray thumb drive and the flash card. Sgt. Bryden does not include the two items in the Bryden warrant. Sgt. Bryden proceeds to the property room once the warrant is signed, takes the computer and the two thumb drives and the flash card without opening the bag to confirm that the items are all covered in her warrant. Sgt. Bryden simply passes the intact property bag to Det. Villeneuve who without reviewing the warrant or the items authorized to be searched, proceeds to search, copy, and analyze all four items, two of which there is absolutely no authority to search. While the conduct may not have been deliberate it was careless and there was no attention to detail and cannot be characterized as acting in good faith.

Sgt. Coakley reviews all of the images passed to him from Det. Villeneuve. There is no evidence that he checked the source of the items or his authority to review and classify the images.

Mr. Justin Dufaure is arrested on November 11, 2010 on drug charges and as stated above, the evidence concerning Det. Cleroux's grounds for arrest is questionable. He was told to arrest Justin Dufaure when he was brought out of the apartment by Tactical Team members. Det. Cleroux testified that he asked if firearms were found and was told none had been found but that drugs had been found. There was no evidence that Det. Cleroux inquired as to where the drugs were found or how the drugs and the knowledge and possession of the drugs related to Justin Dufaure. The evidence is that Det. Cleroux proceeded to arrest Justin Dufaure for drugs and provided him his rights in the stairwell.

Justin Dufaure was taken to the police station where Det. Ramsay, who knew about that child pornography had been found on a computer, proceeded to interview Justin Dufaure without providing him rights to silence or his right to speak to counsel, without telling him of the real possibility that he would be charged with the possession of child pornography or his change in jeopardy, and proceeded to ask him questions about ownership concerning the computer. It was a flagrant breach of his section 10 (a) and (b) rights and whether or not the Crown intended to tender the statement is of no consequence.

I do not find Ms. Seguin's evidence concerning the return by officers unknown to her, other than the name "Rob", after November 11, 2010 reliable. Ms. Seguin could not recall whether it was two or three days or a week after and was not able to identify or even describe the officers in any meaningful way. Ms. Seguin admitted that Det. Hassan would have provided his card on November 11, 2010. I accept Det. Hassan's evidence that as of November 11, 2010 when the firearms were not found, the Dufaure case was closed for him, other than the drug charges. He was never consulted concerning the drug charges and had no further involvement in the case. It is curious that Det. Hassan had searched RMS and listed November 17, 2010 as the date Justin Dufaure was arrested on the pornography charges when in fact it was December 9, 2010. However, I have no further evidence concerning what happened on November 17, 2010 or whether on that date a police officer did in fact attend the apartment and if so the name of the officer. I accept Det. Cleroux's evidence that he had not returned to the apartment between November 11 and November 20, 2010. He did not know who Ms. Seguin was and Ms. Seguin could not identify any of the officers who were in and around the Courtroom waiting to testify as the officer who would have returned to her residence.

I find that the Charter breaches in this case were multiple and each one more serious than the last because the breaches were due to carelessness, negligence and/or a wilful or flagrant disregard for the law and established Charter standards. Searching a computer and a thumb drive without any authorization, failing to take details notes of the search and the conversation with Sgt. Bryden, failing to investigate further the circumstances of the seizure of the computer and what items were actually seized, failing to include two of four items seized and subsequently searched without authorization as a result of the subsequent warrant failing to mention two of the four items, and failing to provide section 10(a) and 10(b) rights before questioning Mr. Dufaure as to the ownership of the computer the goal of which could only have been to further the on-going investigation of the possession of the child pornography that Det. Ramsay knew about.

Impact of the Breaches

The impact of the Charter breaches was that Mr. Dufaure's was arrested, handcuffed, detained at the station, questioned in violation of his Charter rights and released. His privacy interests, i.e. a personal computer, flashcard, and two thumb drives, found in his bedroom in his home, were violated by the unauthorized search. They were further violated when the second warrant failed to list the flashcard and the gray thumb drive, yet the two devices were seized, searched, copied, analyzed and reviewed with no authority. His mother, Ms. Seguin, was informed of the child pornography found on the computer and would not allow Justin Dufaure to return to the apartment. Mr. Dufaure was arrested on December 9, 2010 on the child pornography charges and detained in custody until May 2011 when he was released on strict conditions. The drug charges were withdrawn which was the basis of his arrest on November 11, 2010. There is no evidence before the court as to whether he was ever charged with possession of weapons that was the object of the Hassan warrant.

Section 24(2) Analysis

I find that the seriousness of the breaches, the impact of the breaches and the pattern of reckless or deliberate conduct by the police in this case, militate in favour of exclusion of the evidence.

I find the evidence is relevant and reliable and that the Crown's case will fall if the evidence is excluded. It is not questioned that child pornography cases are some of the most serious cases that come before the courts because of the vulnerability of the victims and the harm done to the children in the making and viewing of the images. The images live in perpetuity. However, society's interest in the search for the truth must be balanced with the societal interest in the maintenance of the long-term integrity of the justice system as stated in R. v. Grant 2009 SCC 32 and other section 24(2) cases.

As stated at paragraph 84 of R. v. Grant, supra:

"It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps, J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226);

'In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yes, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) 'operate independently of the type of crime for which the individual stands accused' (para.51).'"

And as Lamer J. observed in R. v. Collins:

"[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority' (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high."

Having considered the circumstances and number of breaches, the seriousness of the breaches and their impact on Mr. Dufaure, I find that the admission of the evidence would bring the administration into disrepute, notwithstanding the seriousness of the charges and the impact excluding the evidence will have on the Crown's case and society's interest in seeing a determination on the merits of the case.

The images are therefore excluded.

Released: October 7, 2013

The Honourable Justice C. Kehoe