WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

486.4 (3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Contents

• I. OVERVIEW
• II. FACTUAL BACKGROUND
• III. THE FIRST WARRANT - REASONABLE AND PROBABLE GROUNDS
• IV. EXECUTION OF THE FIRST WARRANT
• V. SEIZURE FROM THE FIRST WARRANT OR OVER-SEIZURE
• VI. THE RETENTION OF PROPERTY AND THE RETURN TO JUSTICE
• VII. THE SECOND WARRANT
• VIII. SECTION 24(2)
• IX. CONCLUSION

I. OVERVIEW

[8] This is an Application made by the Defendant, Andrew Wichert (the Applicant), stating that his rights pursuant to s. 8 of the Charter were violated, and he seeks the exclusion of evidence seized by the police.

[9] The primary issue on the Application is whether or not the police, in executing a Search Warrant at the Applicant's residence on January 20, 2010 (the First Warrant), exceeded the scope of their authority, by seizing and examining various CD's and DVD's.

[10] The Applicant submits that there are also five subsidiary constitutional issues that arise in this case. In chronological order of the facts underlying these issues occurring, they are as follows:

a. Did the police have reasonable grounds to obtain the First Warrant?

b. Did the police violate section 29(1) of the Criminal Code and/or the Applicant's s.8 Charter rights by failing to show and/or leave him a complete copy of the First Warrant, particularly the amended Schedule with the various handwritten revisions?

c. Did the delay in filing the Report to a Justice until February 2, 2010 result in any violation of the Applicant's s. 8 rights?

d. With respect to the Search Warrant obtained by the police in March, 2010 (the Second Warrant), should anything contained in its associated Information to Obtain (ITO) be excised and, if so, could the Second Warrant nevertheless have been issued?; and

e. Did the police "overhold" any of the items seized, by virtue of the fact that they held the items seized beyond the three month maximum period of detention (where no charges are laid, and no extensions obtained)?

[11] If the Court finds one or more violation of the Applicant's rights has been established, the Court must then consider whether or not the evidence obtained by the police either via the First Warrant and/or the Second Warrant ought to be excluded pursuant to s. 24(2) of the Charter.

II. FACTUAL BACKGROUND

[12] Mr. Andrew Wichert was a former member of a Polish dance troop, which he remained involved with for many years and during the time of the investigation. He took charge of the youngsters on performance trips abroad and domestically. He also took his digital camera on those trips and took many photographs.

[13] Peel Regional Police received an anonymous Crime Stopper's Tip on Sept. 1, 2009 which was forwarded to the Special Victims Unit. This tip named the Applicant as being possibly involved in sex crimes with minors. A second more detailed tip was received October 28, 2009.

[14] Two investigators, Constables Emery and Armour, began to interview the children referred to in the tip in late 2009. The officer in charge was Constable Emery. The investigation began at least two months prior to applying for the First Warrant.

[15] The seventeen dance students interviewed talked about all the trips the Applicant took them on, which included multiple trips to New York City, Montréal, Poland, Toronto, Niagara Falls, Ohio, Utah, China, and Europe, and other places.

[16] On January 19, 2010, Police Constable Emery and Police Constable Armour appeared with a draft application to search before His Worship Justice of the Peace Dudar.

[17] Police Constable Emery was the affiant on the ITO. The more technical aspects were drawn or adopted from a template drafted by the ICE Unit (Internet Child Exploitation Unit).

[18] That hearing was transcribed and presented as evidence on this Application. The Issuing Justice edited the draft warrant as indicated in Appendix 1 to this ruling.

[19] On January 20, 2010, five officers from Peel Regional Police met near the residence to be searched for a short briefing at 5:15 p.m. They then attended the Applicant's nearby residence in Toronto and conducted the search commencing at 5:25 p.m. Constable Armour was the exhibits officer, and all the officers brought items seized to her to be logged.

[20] The officer who seized the Montréal 2009 CD was Constable Britton. It was located in one of two drawers in the computer desk.

[21] Police seized the silver digital Canon camera, which had been pointed out to them by the Applicant, and had been described by the children interviewed. They also seized the Silver Nikon camera from the bedroom, and a digital camcorder.

[22] Materials were not looked at inside the Applicant's condominium apartment. The officers indicated the reasons involved time constraints, officer safety issues, and respect for the person present for the search and the time spent in their house. Police took all seized items back to their division, where they were looked at. Constable Emery indicated it took two weeks for Constable Armour to go through a lot of material. Constable Armour described a long, tedious process to review the material to determine what they wished to analyze and what would be returned. She did not watch any videos.

[23] Some of the seized material was returned by Constable Armour to the Applicant in person at the police station on January 22, 2010, and he signed for it.

[24] The Return or Report to a Justice was prepared and delivered to the Court on February 2, 2010.

[25] Thereafter, Constable Emery had time off work for a medical issue, and Constable Armour became the officer in charge of the investigation. Constable Armour was the affiant for the Second Warrant application on March 10, 2010.

[26] Constable Armour did the Report to a Justice for the Second Warrant on March 10, 2010.

III. THE FIRST WARRANT - REASONABLE AND PROBABLE GROUNDS

Did the police have reasonable grounds to obtain the First Warrant?

[27] The Respondent correctly submits that a warranted search is presumptively valid. The Applicant bears the burden of proof to demonstrate that aspects of the search of his residence was unreasonable. As Justice Durno held in R. v. Colbourne:

[T]here is a constitutional presumption of validity with respect to a search conducted pursuant to a search warrant and the information to obtain sworn in support of the issuance of the warrant. Therefore, the applicant bears the evidentiary burden on the balance of probabilities to establish the unreasonableness of the search by attacking the information to obtain, or the search warrant itself.

[28] The question for a reviewing judge is not whether he or she would have issued the warrant, but whether, on the permissible record before him or her, the issuing justice could have properly issued the warrant. Justice Watt in R. v. Mahmood, described the standard of review as follows:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, [2000] 2 S.C.R. 992, at paras. 54 and 59; R. v. Garofoli, at p. 1452 S.C.R.; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-74 S.C.R.

[29] The Applicant indicates in his submissions:

Many of the key facts are not in serious dispute. The search warrants and associated Informations to Obtain are exhibits on the Application and speak for themselves. The proceedings before Justice Dudar leading to the issuance of the First Warrant have been transcribed (also an exhibit). Many of the peripheral facts are largely uncontested. Ultimately, this Court is required to make findings of facts primarily relating to the actions of Officers Armour and Emery over approximately 48 hours, between January 19 and 21, 2010. (para. 8)

The Meaning of Reasonable and Probable Grounds:

[30] The Applicant succinctly states that:

The test for determining whether or not the police have a sufficient basis to obtain a warrant is well established. Specifically, the police must establish to the issuing justice that there are, among other things:

a. "Reasonable grounds to believe" that an offence has been committed;

b. "Reasonable grounds to believe" that certain items will be found at a particular place; and

c. "Reasonable grounds to believe" that those items will afford evidence with respect to the commission of an offence."

These requirements are statutory (section 487(1) of the Criminal Code) and correspond with many constitutional pronouncements of the Supreme Court of Canada and the Ontario Court of Appeal. In the seminal case Hunter v. Southam Inc. ("Hunter"), the Supreme Court wrote (at para. 43):

Reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure.

[31] In determining whether reasonable grounds exist for a search or authorization, the appropriate standard is one of "reasonable probability" based on the "totality of the circumstances." In Debot, Justice Wilson stated that:

The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J. A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case." The phrase "reasonable belief" also approximates the requisite standard.

[32] In the search warrant context, Justice Hill defined reasonable and probable grounds in the following terms:

Section 487(1) of the Code requires reasonable grounds as the standard of persuasion to support issuance of a search warrant. Judicially interpreted, the standard is one of credibly based probability: Baron v. Canada [cites omitted].

Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case: R. v. Debot; Illinois v. Gates; Texas v. Brown [cites omitted].

The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.

[33] Justice Hill points out in Sanchez that a common sense practical approach must be taken in drawing reasonable inferences and in assessing whether reasonable grounds exist. He indicates that some deference should be paid to the practicalities of an investigation and to inferences drawn by a trained police officer:

A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence, and, that the things in question will be discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: R. v. Lubell; United States v. Wuagneux [cites omitted]. In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person: United States v. Cortez (cited with apparent approval in R. v. Simpson (Ont. C.A.) [cites omitted]. Probable cause does not arise, however, from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (S.C.C.) [cite omitted].

[34] The Crown submits that the question in the present case is whether a substantial chance existed that offence-related evidence would be found in the Applicant's residence in January of 2010.

[35] In order to determine whether or not reasonable grounds existed to issue the warrant, the results of the search are irrelevant and no ex post facto reasoning is permitted. Accordingly, a warrant could only have been obtained if it was reasonably open to the issuing justice to conclude, based on the sworn information provided in the (First) ITO that:

a) There was a "credibly based probability," as opposed to a mere suspicion, that the photographs supposedly taken by the Applicant of the boys running on a beach would constitute "child pornography"; and

b) There was "credibly based probability," as opposed to mere suspicion, that any such images remained in existence at the time and be found in the Applicant's residence.

[36] The Parties disagree as to whether the grounds in the ITO contain sufficient factual foundation to establish reasonable and probable grounds to believe that the photos would be found at the Applicant's residence, and that those photographic images would afford evidence with respect to the commission of a child pornography offence.

Grounds to Believe that Images Were "Child Pornography"

[37] To make a legal determination as to whether an image is "child pornography," the analysis is contextual, and Courts must rely on the totality of the circumstances and employ reasonable inferences.

[38] The Respondent submits that the issuing Justice could be satisfied that police had more than a mere suspicion that the images would be child pornography based on the following information available to the Issuing Justice in the ITO of the First Warrant:

a. Information about the Applicant:

• The Applicant is male born in 1953;
• The Applicant is the long-term director of the Lechowia Polish Folk Dance Company;
• The Applicant holds a "very powerful position" in the Polish Fold Dance community, and is respected in the community.

b. Information demonstrating a significant power imbalance between the Applicant and all of the children mentioned in the warrant:

• None of the children described in the warrant are biological children of the Applicant;
• All the children are under the care of the Applicant as his dance students;
• The Applicant would take children on many trips away from the children's homes - a few times each year in Canada, the U.S., Europe, South America, and "all over the world". While on these trips, the Applicant was the guardian of the children: he would be the only adult in a hotel room with the children, and on the Polish trip in particular, there was only one other adult to assist in supervising the 24 students;
• While on trips, if the children did not comply with his demands to wash naked with the others, the Applicant would threaten them with the withholding of future trips or fun activities;
• The Crime Stoppers tipster told police that the Applicant holds a "very powerful position" in the Polish community, and because of this, the concerned mothers of the children don't want to report his behaviour and "rock the boat and be labelled as snitches in the Polish community of Mississauga".

c. Information tending to show that the Applicant repeatedly engaged young boys in a sexually invasive and inappropriate manner leading up to and including Poland 2009:

(i) In October of 2004, there was an anonymous complaint to the Toronto Children's Aid Society regarding the Applicant. The caller was a student in his dance company, and had been for 8 years. He advised that:

• The Applicant had the children at his dance school engage in activity which was "inappropriate and disturbing";
• The Applicant would have the children expose themselves or become naked in front of the group.
• In 1994 while on a trip to Poland, the Applicant had the children take showers while he pulled the curtains open, exposing their nudity;
• The student attended the Applicant's apartment and was exposed to "pornographic videotapes and pornographic material" (no other information was provided);
• The children were made to wear tights and t-shirts to dance in, which made them uncomfortable;
• There were rumours jokes spreading around the dance company that the Applicant was a "pervert" or "pedophile";
• In one particular dance, the children were made to face each other's crotches and mimic sexual acts; and
• In 1993, the Applicant stayed in a hotel room with an 11-year-old boy;

(ii) In September of 2009 a second tipster anonymously contacted police about the Applicant, and advised:

• On a trip to Poland, and on previous trips, there was inappropriate behaviour by the Applicant towards boys in the group;
• He would force all the boys to do their morning wash naked in a common bathroom;
• While the boys were naked, he would compare all the boys' private parts and make comments on the growth of hair, size of each individual penis, and how large the penis will be once they get older;
• During the night, the Applicant would check all the boys in their beds and pull down each and every boys' pyjama pants claiming that they cannot sleep in their underwear and he would check to see if they had them on;
• On "previous trips", the Applicant would sleep in the same room as some of the kids "to save money".

(iii) In October of 2009 the same anonymous tipster gave a second tip, providing a list of names of children in the company;

(iv-ix) The account of all of the children interviewed by the officers.

d. Information demonstrating that the Applicant had a history of taking photographs of the children:

• The student in the Children's Aid call said that the Applicant would take photos of any dancing events that the children were involved in;
• Many of the boys told police about the Applicant taking the subject photos on the beach in 2009;
• Child D.L. said that the Applicant brought the same silver digital camera to trips to New York, in November of 2009.

e. Information relevant to the nature of the photos themselves:

(i) Child L.R:

• In July 2009 while in Poland the boys were on a beach and the Applicant told them to take off their bathing suits and run naked to the tree and back (100m). The Applicant was taking pictures of the boys while they were running. "D." was the other boy;
• The Applicant told L.R. he took two pictures but when the child went to look at the pictures, the Applicant said he could not find them.

(ii) Child A.O.:

• While in Poland, the Applicant had the boys remove their swimming suits and had them run back and forth to a pole, which was 100m away. While they were running, the Applicant took pictures of them with a silver digital camera;
• The Applicant said he would never show anyone else the photos and that he would erase the photos;
• A.O. felt uncomfortable because of the incident.

(iii) Child D.L.:

• In Poland on the beach, the Applicant asked four boys, including D.L. to remove their swimming suits and run around naked on the beach. While they were running around naked, the Applicant took pictures of them with a silver digital camera;
• D.L. did not know why he was taking the photos;
• The Applicant showed the boys the pictures and said he would delete them;
• There were also pictures on the camera of the boys standing naked, side-by-side on the beach.

(iv) Cst. Emery, the Affiant:

• Digital photos can easily be manipulated in the camera or otherwise, including cropping and zooming;
• The affiant himself has reasonable grounds to believe that the photos in question will constitute child pornography, as outlined in the definitions section of the warrant.

[39] In Poland in 2009 while on the beach, Mr. Wichert asked the boys to strip naked. He then asked the boys to run to a tree and back. He watched them run, and took multiple pictures of the naked boys. He showed one boy the pictures. While looking at the camera, the boy also saw photos of other boys posed side-by-side naked on the beach, which means that there was an earlier second session of naked pictures taken of the boys. The Applicant told the boys who were made to run on the beach that he would delete and/or not show anyone the pictures, which the Respondent submits generates the strong inference that the photos are of such a nature that (i) he should not be in possession of them, (ii) they are inherently private, and/or (iii) they are morally culpable or even illegal.

[40] Therefore, she submits it is obvious that the Applicant was taking photos of naked boys for a sexual purpose, and that the dominant characteristic of those photos would be the private areas of the children.

[41] Given these circumstances, the Respondent submits that there is an overwhelming inference that the Applicant was taking photos, of which the dominant characteristic was the private areas of the boys, for a sexual purpose.

[42] The Applicant submits that in addition to summarizing the evidence of the children interviewed, the Affiant added the following paragraph to explain why a warrant was sought:

In my experience it is common knowledge that a digital camera has the ability to zoom in on the whole picture and focus specifically on certain areas of the picture. Therefore it is possible to manipulate the picture by zooming in on parts of the picture. The manipulation of the picture can occur before, during or after the picture has been taken either by using the camera itself or, in my experience, more commonly, by manipulating the picture after it has been downloaded to a computer.

[43] It is Mr. Bytensky's position that this final paragraph demonstrates precisely the difference between "credibly based probability" and mere speculation. It is evident by the above-comment, that Cst. Emery was aware of the "dominant characteristic" requirement for an image to constitute "child pornography." This is the only reasonable explanation for his decision to discuss the possibility ("it is possible") that the pictures were manipulated by "zooming" in on "parts of the picture." There are, of course, dozens of other "possible" ways that a photo could be manipulated. Moreover, he says that there was absolutely no basis to believe that any of the photos have been manipulated at all.

[44] Furthermore, he argues that the fact that Cst. Emery chose to speculate about the possibility of "zooming in," is an implicit acknowledgement by him that, most likely, without such "zooming in" the images probably constituted nothing more than mere "child nudity," and that the officer relied on mere "possibilities." Although the Applicant asserts that the police did not provide any facts to the issuing justice upon which one could reasonably conclude that the pictures taken by the Applicant likely came within the definition of "child pornography" as opposed to mere possibility, it is a possible reasonable inference the Issuing Justice could make.

[45] The question is not whether this Court would have issued the warrant, but whether the Issuing Justice could have done so. The affiant's experience is relevant to informing the issue, rather than engaging in mere speculation.

[46] The children knew that nude photos were taken, and retained for some time. I find that in all the circumstances outlined in the affiant's grounds set out in the ITO, the Issuing Justice could find credibly based probability that nude photographs taken of the children under his care may well fit within the definition of child pornography in s. 163.1 of the Criminal Code.

Grounds to Believe Images Would be in the Residence

[47] The ITO outlined that:

• The Applicant has a history of taking photographs of the children in his care;
• The Applicant was seen with the same camera two weeks prior to the drafting of the warrant on a different dance trip to New York with some of the same boys;
• One of the boys who ran naked on the beach saw the beach photos on the Applicant's camera;
• The same boy who saw the running beach photos also saw photos from a previous session on the Applicant's camera of naked boys standing side-by-side on the beach. The Respondent submits this is direct evidence that the Applicant chose to not delete those images, but instead retain them;
• Pictures taken on a digital camera can be downloaded onto a computer or other electronic device by way of a USB port or a memory card;
• Based on the affiant's training and experience, he advised that people will often:
  • transfer digital files from memory cards to personal computers for the purpose of storing or printing the images;
  • store photos on other items in addition to computers, like CD/DVDs, other electronic devices or media;
• Only the Applicant lives at the address to be searched.

[48] The fact that the Applicant told some of the children that the photos had been deleted and/or that he could not find the photos is not determinative. The Respondent suggests that there is an inference, given the circumstances, that the Applicant was hiding the offending photos from the children. In any event, D.L. saw the photos on the camera, and saw photos from a previous session that the Applicant did not delete.

[49] The Applicant's argument is largely based on the fact he told the children he would delete the photographs, or told them he could not find them, as presenting a likelihood that they were no longer in existence. The affiant could well believe these photographs remained in existence based on the logical and reasonable inference that the Applicant had a prurient interest in them.

[50] I find that there was credibly based probability that the images remained in existence at the time, and that they may be found in the Applicant's residence.

IV. EXECUTION OF THE FIRST WARRANT

Did the police violate section 29(1) of the Criminal Code and/or the Applicant's s.8 rights by failing to show and/or leave him a complete copy of the First Warrant, particularly the amended Schedule with the various handwritten revisions?

[51] The Applicant submits in written argument that:

a) Section 29(1) of the Criminal Code imposes a specific duty on the officers who execute a warrant to have it with them and to produce it on request.

b) "Candidly, it is not clear whether or not the police technically violated section 29(1) in this case. For reasons to be developed below, it is submitted that, whether or not there was an actual violation is beside the point; the police violated the spirit of this provision. In so doing, they failed in their obligation to carry out the search reasonably. In the alternative, and at the very least, this conduct is a factor to be considered on the overall section 24(2) analysis." (para. 133)

c) There is no evidence that Mr. Wichert ever "requested" to see the entire Warrant. As such, there is no evidence that the police failed or refused to provide it "when requested to do so."

[52] After the police evidence was called on the application, both counsel agreed on certain additional evidence, which included that Constable Emery showed the Applicant the front page of the search warrant when he entered. He had the entire warrant with him, and could not recall if he showed him the entire warrant when he told him what he was searching for. He left him a copy of the front page.

[53] Mr. Wichert stated he did not recall being shown the entire warrant. I am unable to put any reliance on his recall of detail of the warrant execution due to the passage of time, five years afterward, and his unfamiliarity with the documents.

[54] At no time did the Applicant request a copy of the entire search warrant be provided to him. Thus, there is no evidence that the police failed or refused to provide this to him. The officers were all professional, and did no damage in the execution of the warrant. There was no violation of s. 29(1) of the Criminal Code or s.8 of the Charter in all circumstances.

V. SEIZURE FROM THE FIRST WARRANT OR OVER-SEIZURE

[55] Generally speaking, the police who execute a search warrant may only seize those items that they are specifically authorized by the terms of the warrant. Where a Court finds that a seizure falls, in whole or in part, outside the scope of the authorization, absent 'plain view' issues, that excessive aspect of the search will be found to be unreasonable.

[56] Appendix A annexed to the ITO for the First Warrant was highly edited by the Issuing Justice.

[57] The Applicant relies on this alleged over-seizure as the crux of his s. 8 Charter argument. Mr. Bytensky submits the police here seized items that were specifically sought and rejected by the Issuing Justice.

[58] Two reported cases in Ontario consider the seizure of items that were specifically refused by the issuing justice as unreasonable, regardless of whether or not the items otherwise may have come within the plain view doctrine.

[59] In Guo, Campbell J., after determining that a number of the items seized by the police fell within the categories specifically excluded by the issuing Justice, characterized the police conduct as follows (at para. 53): "In essence, the officers exercised their own discretion to seize items that the Justice of the Peace specifically directed them not to search for or seize."

[60] He continued, by considering the application of the "plain view doctrine" as follows:

54. While the police must be afforded the opportunity to seize evidence associated with the commission of an offence, it seems to me that the parameters of s. 489(1) must be measured against the exercise of judicial discretion to order or refrain from ordering the seizure of certain items. To this end, in the absence of special circumstances, such as a situation where the public would be at risk or the opportunity to secure evidence would be lost or where the thing found is in and of itself clearly related to criminal activity, the direction given by the warrant must be followed and where necessary, the premises may be secured until further direction or authorization can be obtained to seize the items. To do otherwise would equate to transferring judicial discretion and serve to undermine the process …

56 The plain view doctrine and the provisions of s. 489(1) cannot be relied on as a mechanism to override a clear direction given by the Justice who issued the warrant. In the absence of appropriate circumstances, none of which were present here, the officers had a duty to comply with the terms prescribed in the warrant. The direction contained in the November 4, 2005 warrant was clear. In the circumstances, there was an absence of any real and pressing need to seize the items that fell within the category of items deleted by the Justice of the Piece. The police should not have taken possession of the property. Accordingly, the seizure of [those exhibits] was unreasonable.

[61] The above passages in Guo were expressly adopted by Lauwers J. (as he then was) in Caranci. In that case, as in Guo, the seizure of items that had been specifically rejected by the issuing justice rendered that part of the search unreasonable.

[62] Therefore, the Applicant's position is that the seizure of items other than the camera, memory card(s) and computer, fell clearly into the list of items that had been specifically rejected by the Issuing Justice.

[63] The Respondent submits the Court must examine the original Appendix A, pre-excisions, in order to interpret the Issuing Justice's comments, and the beliefs held by the officers about what they were entitled to seize. Ms. Ward submits the officers did not over-seize, but seized only those items authorized in the search warrant.

[64] Ms. Ward contends that the intention of the Issuing Justice in amending the Appendix as he did was to make a distinction between photographs, computer, and videos. The Crown argues that he did not intend to make a distinction between the types of media used to store photographs.

[65] Further the Respondent submits the Issuing Justice did not tell the police that they were only entitled to seize memory cards, nor did he say they were only allowed to seize photographs from Poland.

[66] The Respondent submits that the offending material was located on a homemade CD, not a DVD, and that CD ought to be included as authorized in clause 4 of Appendix A.

The Original Appendix A before the Excisions and Comments of the Issuing Justice

[67] For the sake of convenience, Appendix A is set out below:

Appendix A – Items being sought

1) Any and all electronic devices which are capable of analyzing, creating, displaying, converting or transmitting electronic or magnetic computer impulses or data. These devices include, but are not limited to computer systems, computer components, computer peripherals, word processing equipment, modems, monitors, printers, platters, encryption circuit boards, optical scanners, external and internal hard drives, connecting cables, couplers and/or ribbons, cellular phones, and other related electronic devices.

[No Inspection of computer without a further warrant.]

2) Information and/or data stored in form of magnetic or electronic coding in computer media or on media capable of being read by a computer or with the aid of computer related equipment. This media includes but is not limited to floppy diskettes, fixed hard disks, removable hard disk cartridge, tapes, laser disks, and any other media which is capable of storing magnetic coding.

3) Instructions or programs stored in the form of electronic or magnetic media that are capable of being interpreted by a computer or related components. These items seized include but are not limited to, operating systems, applications software, utility programs, compilers, interpreters, and any other programs or software used to communicate with computer hardware or peripherals either directly or indirectly via telephone lines, radio, or other means of transmission.

4) Digital Cameras or other photographic equipment and the associated media for storing, sending and downloading of photographic images.

5) Video tape or DVD recording and playback equipment, including video tape cassettes, video tape, DVDs, and recordable DVDs and accessories used for recording video or DVDs.

6) Computer files or printed documents including but not limited to log files showing image and video files of child pornography being distributed over the Internet.

7) Any catalogues or other lists that describe videotapes, still pictures, or computer generated images depicting child pornography.

8) Images and or videos depicting child pornography or children involved in sexual acts, including but not limited to electronic images, printed images and the video tapes or DVDs in all formats.

[68] On all the evidence of the police witnesses involved with drafting the First Warrant, Appendix A was imported from boilerplate in previous ICE Unit search warrants. Most of the groundwork of drafting in this area was done by Constable Armour for the affiant Constable Emery. It was Constable Armour's first child pornography search warrant application. She either relied on the assistance of the paperwork managed in the ICE Unit, and/or may have spoken to an officer working in that unit.

[69] It is clear that both officers relied upon others for the technological nomenclature used in the warrant.

[70] The Crown characterizes Appendix A as creating categories or themes to the items sought. These are as described below:

The theme of each of the clauses is described below:

Clause One: the computer, and it's drives and peripherals;

Clause Two: data on computer-related media;

Clause Three: Software/instructions/programs for the computer;

Clause Four: Photographs;

Clause Five: Videos/DVDs;

Clause Six: Computer files or printed computer logs;

Clause Seven: Lists generated from the computer;

Clause Eight: Catch-all clause, specifically for child pornography. [Emphasis in Original]

[71] Ms. Ward argues that clauses one, two, three, and six are clearly affiliated with the computer itself and are more technical in nature than clauses four, five, seven, and eight. As such, there are bound to be repetition in the clauses. For example, the basket clause eight contains duplication of some items in the remaining clauses, including images in clause four.

[72] Constable Emery testified in his first cross-examination that the cross-outs reflected duplication rather than limitation. He maintained that position even after the transcript of the ex parte hearing had been obtained. The transcript evinced a very different interpretation, and the officer's intransigence was significant.

[73] Clause Four reads: "Digital cameras or other photographic equipment and the associated media for storing, sending, and downloading of photographic images".

[74] The Crown interprets this as including other media commonly used to store, send and download photographic images like USB/flash drives and CDs/DVDs. The Applicant says all the Issuing Justice was permitting to be seized was the camera, and any SD cards which may include deleted files.

[75] Ms. Ward asks the Court to keep in mind the state of technology in 2010, when interpreting Clause Four.

The Proceeding before the Issuing Justice

[76] The application was made ex parte in this case, which is the typical procedure. His Worship asked if a draft order was submitted and Constable Emery replied in the negative. The justice then stated he was "overwhelmed with work" that day but nevertheless was likely to be able to address the matter.

[77] When the officers returned, Justice Dudar explained what he was permitting in plain language, as follows:

Essentially what I'm doing is restricting – and yes, actually I make a note to this – after this. Essentially, there was no nexus at all for anything other than a digital camera, just nothing to suggest DVDs, videos, anything. So I think anything that is not a digital camera is a real reach and so I've excised those from your warrant request…. Okay and all of the other ancillary stuff.

[78] Justice Dudar then explained that he was permitting the police to seize the computer(s), but not to inspect it/them. What he said in this regard also clearly demonstrates the limits of what he was permitting the police to actually examine. The next relevant passage is as follows:

So my inclination quite candidly at this point is to simply say you get the computer but you can't do anything with it. I would be of the view that if you executed the warrant and you in fact find stuff on the memory card that then you've created a nexus to – access the computer itself.

[79] Justice Dudar then invited a response, and the following exchange occurred:

EMERY: My response to that would be that the card on the camera, because of the time duration that's elapsed since the pictures were taken, it's common practice to load that into your computer and then delete the card and take new pictures with that card rather than keep buying new cards.

THE COURT: Well, okay, that may be … I would say I understand that you can still inspect that card anyway to find deleted files on it using most technology so to the extent – concern, I think you can still address that.

[80] After Cst. Armour joined the discussion to attempt to persuade Justice Dudar that the police "technical support team" will only be looking for specific files, the Issuing Justice decisively ended the debate by stating as follows:

… So the proverbial language is, this is a fishing expedition. This is awful close to that because you're dealing with information that's at least a month old. I don't have anything specific that – in the house. So, I'm stretching to get – this, just so you understand.

[81] Both Emery and Armour then immediately acknowledged that they understood.

Interpreting the Justice's Excisions and Accompanying Comments

[82] The language of the written Appendix was prepared by the police, which is almost always the case in these types of applications. The workload at the intake Justice of Peace office was said to be overwhelming that day. In the result, the Issuing Justice did not handwrite or type his own list of items to search for; rather he simply used a copy of the appendix submitted with the ITO and made his own edits to that document to attempt to show what he was permitting the police to search for.

[83] The Applicant submits an ex parte hearing imparts a special duty on the police, as the sole litigant before the Court, to be fair. This is consistent with the police obligation to be "full, frank and fair" in preparing the ITO.

[84] The Crown urges the Court to look to the record as a whole to interpret the intentions of the Issuing Justice. She argues that the oral comments came after his amendments, and are not binding. It is the Respondent's position that the officers were entitled to rely upon the written order, and where it conflicted, if it all, with anything the Issuing Justice said, the ambiguity should be resolved in favour of the police executing the warrant.

[85] Although the Crown submits the record does not adequately reveal the chronology of events in terms of when the comments and amendments were made, counsel did not flesh this out when examining or cross-examining the witnesses. It would be an error to apply hindsight reasoning to the verb tense employed by Justice, and extrapolate that to postulate when the cross-outs were made.

[86] The Respondent characterizes the comments of the Issuing Justice as explaining some of the corresponding amendments on the Appendix, and not binding.

[87] The Crown further submits that the Justice's real concern related to videos and the computer, not photographs, and that it was never the intention of the Issuing Justice to only allow police to search for and seize a digital camera and the associated SD card.

[88] The position of the Applicant is that the actual (governing) Order is the one made by Justice Dudar orally, as reflected in the transcript. If, and to the extent that, there are any inconsistencies between the oral Order made by the Justice and the written order as reflected in the signed First Warrant, the Applicant submits the terms as reflected in the Transcript, and not in the written Appendix, must govern the conduct of the police.

[89] One reason is the provision of s. 3.1 of the Code which states as follows: "Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing."

[90] Secondly, it was within the Issuing Justice's discretion to issue the warrant, to refuse to issue the warrant, or to issue the warrant on such terms as he deemed appropriate. Any written order evidencing the decision was obviously intended to reflect the discretionary order already made by the Court.

[91] Section 487(3) of the Code states that the warrant issued by a justice "may be in the [prescribed] form". While use of the standard form is customary, it is not mandatory. In this case, the face page of the warrant is in standard form, but the key portion dealing with the extent of the items to be searched for is incorporated by reference to an Appendix, and is clearly not in a form prescribed by statute.

[92] While there is no case law specifically deciding whether or not the oral ruling by a Justice on a search warrant application governs over the written order; however, there is case law which has considered this issue in the context of bail orders.

[93] In Ontario, there is authority that "a recognizance is entered into orally before a magistrate, and the written record of the recognizance may be made at a subsequent time." The principle dates back to at least 1892 in Ontario and to 1838 in England.

[94] As the Applicant submits, these cases are all rooted in the long standing common law principle that a Court Order "speaks" at the time it is made. That principle is codified in s. 3.1 of the Code.

[95] In the Applicant's submission, where a party hears the Court say one thing, but reads the written recording of that ruling a different way, it is, at best, inappropriate to proceed on the contrary written term. He submits at worst, this is "sharp practice". At the very least, the party should clarify with the Court what the ambiguously written terms actually mean.

[96] In the Applicant's submission, the scope of the permitted search, as explained by the Issuing Justice was clear. He told both officers there was "no nexus at all for anything other than a digital camera". He explained that he intentionally excised from the warrant request all references to "anything that is not a digital camera" because all those items – the "DVD's, videos and all the ancillary stuff" – were all "a real reach". At the end of the proceeding, both police officers present stated that they understood.

[97] I agree that the discussion where the Issuing Justice referred to the (permitted) search of memory cards clearly shows that everyone in the room understood (at the time) that only a search of the cameras and the actual items that go inside the cameras to store the pictures – was permitted.

[98] Both Cst. Emery and Cst. Armour demonstrated on the witness stand that they understood the manner in which pictures "migrate" from a camera to other potential storage locations. Each clearly understood that memory cards were the only primary locations where photographs taken by a digital camera would be stored. Neither believed that DVD's could be placed directly into digital cameras. They understood that computers would be a "secondary" place – that is, the images would be transferred electronically from the (primary) memory cards to the computers. They also understood that items such as DVD's, CD's or other places would be "tertiary," in that the images would typically migrate there from the "secondary" computer locations.

[99] This is consistent with the Issuing Justice's reference only to memory cards in the exchange with the officers when they inquired about looking for files on the computer (a "secondary" storage location) since those original images may have been moved by the time of the search. Importantly, no one present raised the possibility of examining "tertiary" locations such as DVD's, CD's or otherwise, in trying to locate these transferred images.

Simply put, from that exchange, it must have been obvious to all persons in the room that if there were no grounds to search "secondary" locations (like a computer), there could not possibly be any basis to search "tertiary" locations either, as these would only have the transferred information if it was further transferred from a computer.

[100] Accordingly, it can be accepted that the Issuing Justice intended to rule, and clearly did orally rule, that the police were permitted to seize and examine only digital cameras and the memory cards that are used inside the cameras.

[101] I agree with the Applicant that the words of the Issuing Justice are binding on the officers.

[102] Additionally, the clear language in the discussion between the affiant and the other officer with the Justice demonstrates his intention was restrictive and limiting, rather than expansive.

[103] The police were required to limit their search to the narrow focus clearly expressed orally by the Issuing Justice. The Order literally and figuratively "spoke" from that moment, and was in effect right from that moment, regardless of anything that may have been left in the written Appendix.

[104] As a result, the police conduct in seizing and examining numerous other items (specifically including many "disks" – CD's, DVD's and so on) exceeded the scope of the spoken Order made by the Issuing Justice.

The Written Appendix A

[105] Even if the Court decides to measure the seizure against the terms as written, the Court comes to the same conclusion, namely, the police exceeded the scope of their authority in executing the First Warrant.

[106] As initially drafted, Appendix 'A' contained eight paragraphs which outlined the scope of what the police wished to search for. Of these eight, six were deleted entirely. Paragraph 1, dealing with the computer devices, was partially edited. Paragraph 4, dealing with cameras, was left fully intact.

[107] The Applicant suggests that Paragraph 4, the key paragraph for this Application, on its face, permitted seizure (and examination) of "digital cameras or other photographic equipment and the associated media for storing, sending and downloading of photographic images".

[108] The pivotal evidence here was discovered on a compact disk (CD). Obviously, a CD (or DVD for that matter) is neither a "digital camera", nor is it "photographic equipment". As such, whether or not the seizure of these items comes within paragraph 4 of the Appendix depends on whether or not they come within the definition of "associated media for storing, sending and downloading of photographic images".

[109] The position advanced throughout the application by the police officers was that paragraph 4 of the Appendix, specifically the "associated media" clause, allowed them to seize anything conceivably "capable" of storing digital photographs.

[110] The adjective "associated" bears a common definition, "associated" is "connected" or "Joined." The term connotes a close connection, not some tangential relationship or one that is far removed.

[111] The Applicant says that the police position, the seizure of anything capable of storing photographs, completely ignores the inclusion of the term "associated" in Paragraph 4. Rather, the police interpretation essentially rewrites the paragraph by replacing the words "the associated" with "any" or "all".

[112] Mr. Bytensky submits that the police interpretation greatly broadens the scope of the provision. That conclusion is reached by simply looking at the words themselves. Moreover, he states that the police position also ignores the fact that many parts of the initially drafted Appendix were intentionally deleted by the Issuing Justice.

[113] The Respondent submits that the Court must look at the whole of the record in interpreting the Issuing Justice's excisions and comments. I agree.

[114] The timing of the written amendments, whether penned before the officers returned, while they were present, or a combination, is a red herring here. They form part and parcel of the verbal directions of the Justice which are binding on the police.

[115] Ms. Ward also takes the position that there is no express exclusion of CDs in Appendix A. She submits that the failure to do so allows for the seizure of CDs. The doctrine of expressio unius, exclusio alterius is a construct of statutory interpretation, and has no direct application to interpreting a search warrant ITO. The police ask to seize certain items. The Issuing Justice then decides if he or she has reasonable grounds to believe that those items will afford evidence with respect to the commission of an offence.

[116] Further she extracts the Justice's comments "anything that is not a digital camera is a real reach and so I've excised those from your warrant request" to mean that he excised everything he had a problem with. The 'overwhelming workload' the Justice referred to may have caused sloppiness to the cross-outs in this case, in part because the police did not provide a draft Order. His verbal comments clearly indicate that he was not authorizing anything other than a digital camera (and the SD card which stores the images).

[117] Lastly, the Respondent submits that if the Issuing Justice's comments are binding, his real concern was that the officers not take videos or examine the computer, rather than photographs. One can't speculate in this area, particularly as the Issuing Justice described the request as "thin" and verging on a fishing expedition.

Police Understanding of the Language of the Warrant

[118] The Applicant takes the position that the police did not themselves understand the language of the warrant at the time. It is clear that this was "boilerplate" language that neither Constables Emery nor Armour was personally involved in drafting. The Court acknowledges that standard terminology and boilerplate is not usually a problem in search warrant applications. Nevertheless, it is critical that the affiant, and then the officers briefed to execute the warrant, understand what that language refers to.

[119] The Respondent states that the police officers' understanding of what they could take upon execution of the warrant was both correct and reasonable. The Court has found their interpretation was not correct, but must consider whether it was reasonable in all of the circumstances.

[120] The original intent of the police when drafting the warrant was to look for photographs as opposed to videos or other media. Quaere why then in the boilerplate search request they asked for all of the above.

[121] The officers did not seize the VHS tapes in the Applicant's kitchen cupboards, but parenthetically they did seize an item marked Chicago DVD, which may have been the Hollywood movie. The officers' interpretation of what could be seized was fluid.

[122] The Respondent points to the uniformity of the interpretation by the police of what they could seize, as some indication of reasonableness. If a mistake is repeated and agreed upon, that does not give it more weight.

[123] The submission of the police interpretation of the hearing before the Issuing Justice has some attraction in the absence of the audiotape and transcript from the hearing. As I have found, the Issuing Justice was direct in ordering what could and could not be seized, when he had dialogue with the officer in charge.

[124] Ms. Ward emphasizes that both main officers exercised constraint, as they understood that, although Clause Four allowed for seizure of "any form of media that are capable of storing, sending, or downloading photographic images", they understood the term to mean commonly or typically used media, such as CDs, DVDs, and USB/flash drives. This is distinct from the technological officer's evidence that 'any media that is capable of storing' means "pretty much every computerized item in the world".

[125] Although the Applicant urges the Court to find that there was no discussion among the five executing officers about the scope of their search resulting from the edited Appendix A, the evidence is not that far reaching.

[126] The briefing before the search was exceedingly brief considering that all the officers, including three unfamiliar with this warrant, had to read it, become familiar, sign the front page, receive background information and instruction, and be knocking on the door of the residence, all within the space of ten minutes.

[127] The fact the search warrant was "edited down" is very important, and the three officers not present at the hearing before the Issuing Justice would not have heard his oral comments. The meeting had to discuss the edits specifically, and I cannot be so satisfied.

[128] In addressing the question of whether the seizure of the Montréal CD amounted to over-seizure, the Respondent notes that it became quickly apparent that the Applicant stored his photos on homemade disks. One cannot impute after-the-fact discovered evidence as enlightening the draft ITO at the time of the hearing before the Issuing Justice.

[129] I agree with the Applicant that the police position that the meaning of Clause Four to the Appendix authorized seizure of "anything capable of storing photographs" is not reasonable, as it ignores the English definition of "associated".

[130] Their interpretation ignores the pronoun "the" immediately before "associated". As the Applicant submits, "Even if the broadest possible definition of "associated" is used, the police position would be supported only if "the" was replaced with "an" or "any" [as in "an associated media" or "any associated media"]. The specific pronoun "the" demonstrates that only the direct media associated with the camera (i.e. the memory card) was contemplated."

[131] The fact that the Issuing Justice clearly interpreted the expression "the associated media" to be limited to the memory cards coming from inside the camera(s) is made clear by the Transcript. He referred only to memory cards in the discussion about what could be analyzed. He told the police that "everything else" was without nexus. He edited all the other paragraphs to reflect his intentions. The fact that he didn't edit paragraph 4 makes it clear, given his other comments and edits, that he intended paragraph 4 to be limited.

[132] The fact that Constables Emery and Armour interpreted it the same way as Issuing Justice at the time they appeared before him is also captured by the Transcript, and in particular their exchange with the Justice about the migration of images to the computer.

[133] The Applicant states it is also important to note other paragraphs of the Appendix, most particularly paragraphs 2, 5 and 8, which were crossed out by the Justice.

[134] The fact that each of these other paragraphs were deleted by the Issuing Justice clearly confirms his intention and Order that those items could NOT be seized.

[135] Paragraph 2, fully deleted by the Issuing Justice – listed the following items sought to be seized:

"Information and/or data stored in form of magnetic or electronic coding in computer media or on media capable of being read by a computer or with the aid of computer related equipment. This media includes but is not limited to floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes, laser disks, and any other media which is capable of storing magnetic coding."

[136] Paragraph 5, also fully deleted by the Issuing Justice, listed the following:

Video tape or DVD recording and playback equipment, including video tape cassettes, video tape, DVDs, and recordable DVDs and accessories used for recording video or DVDs."

[137] Finally, paragraph 8, again, fully deleted by the Justice, sought:

Images and or videos depicting child pornography or children involved in sexual acts, including but not limited to electronic images, printed images and videotapes or DVD's in all formats.

[138] Mr. Bytensky submits that these three paragraphs, explained in plain language to a nontechnical expert, could only be understood to have referred to the following:

a. Paragraph 2 – various items which store data that is read by a computer. Obvious examples are CD's, DVD's, external (thumb) drives and so on.

b. Paragraph 5 – DVD's and videos

c. Paragraph 8 – images in every format, including in printed format and in every electronic format (including on DVD's in all formats), depicting child pornography.

[139] The police witnesses made it clear that they thought they were justified in seizing any item if it was "capable of storing images." Cst. Armour explained the police approach fully in the following passage, which began with a question from Ms. Ward about why a specific DVD was seized:

Q. Okay. The one I'm concerned about is number 29, it says "Chicago Movie DVD."

Why would you seize a Chicago movie DVD?

A. 'Cause we don't know what's on it. The honest truth is we didn't know what was on any of those CD's and without taking it back and looking on it, it could be an item that is disguised to be something other than what it actually is.

Q. What do you mean by that?

A. It could be listed as being something of a, of a - it could either not have any label on it at all, or it could be a label to misguide anybody from knowing that there's child pornography on it or child, like, pictures of naked boys on it. They're not - these type of items are not going to be labelled.

Q. What type of items?

A. Any type of CD's or DVD's or any type of device with photographs on it that have naked children on it, that have child pornography on it, they're not going to be labelled as that. At the time we didn't know what is on any of these CD's or DVD's or USB drives or media cards. We seized them, took them back and reviewed them.

If a movie came up, I stopped it right away and all videos, anything that had to do with any video was given back to Mr. Wichert.

[140] Cst. Emery gave similar evidence about the decision to seize over 100 disks. He explained "we were taking all the things that could store pictures… and then once I saw how many CD's there were, I knew there could be other pictures on them. But because I didn't know what was on each one, we seized them all."

[141] The passages above makes it clear that each of the items were seized so they could be reviewed in search of images of child pornography. This is exactly what was contemplated by the terms of paragraph 8. That term was intentionally deleted by the Issuing Justice.

[142] If the Issuing Justice had truly deleted most of the Appendix due to "duplication", focusing on the excised portions would be of limited use. However, "duplication" had nothing to do with the restrictions placed on the search by the Issuing Justice.

[143] However, if the police had the authority to seize CDs, I agree with the Crown that they would be able to take disks labeled with titles other than "Poland" to review, because homemade labels could be applied stating certain contents, which were not on the CD. This is not unusual. For instance if a credible tip in a drug warrant stated that the subject is known to store cocaine in a Cheerios box, it would not be over-seizure to look at other cereal boxes in a pantry.

[144] Many other issues were raised in argument as to whether certain photographs or categories of photographs amounted to over-seizure. I need not deal with these issues in light of the finding that the CDs themselves ought not to have been seized in this case.

[145] I also agree with the Respondent that the police had articulable reasons to decline to bring technological equipment to a search site in a situation like this one. They proceeded in a reasonable fashion to do as they did with the CDs, and the large volume of material. One must keep in mind that the Issuing Justice only gave a seven hour window of opportunity, and the police had to proceed expeditiously while exercising due care.

[146] It is somewhat disconcerting that notwithstanding the heavy editing or cross-outs by the Issuing Justice, both Constables Emery and Armour testified that nothing changed with respect to the expected scope of their search, and that they could still get everything they wanted to.

[147] This myopic view is likely the product of rationalization after the fact, because the transcript of the hearing definitely does not support that.

VI. THE RETENTION OF PROPERTY AND THE RETURN TO JUSTICE

Did the delay in filing the Report to a Justice until February 2, 2010 result in any violation of the Applicant's s. 8 rights?

[148] Section 489.1(1) of the Criminal Code provides as follows:

489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1). [Emphasis added.]

[149] Section 489.1(1) applies to both warrantless common law seizures and seizures pursuant to a warrant: R. v. Backhouse, 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 113, and 115.

[150] Section 489.1(1) is the gateway to s. 490. As Rosenberg J.A. explained in Backhouse, at para. 112:

Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1(1) (b) there is an obligation on the justice to supervise its detention. The section also sets out an elaborate scheme to facilitate the return of items seized to their lawful owners.

[151] If a peace officer fails to file a report under s. 489.1(1), the property seized is not subject to judicial supervision during the investigation under s. 490. The real importance of s. 489.1(1) is its link to s. 490.

[152] The Respondent spent a considerable effort arguing that Section 8 is not engaged at the post-seizure stage. Since the time of the submission of the written submissions, the Ontario Court of Appeal has clarified that area of the law in the decision of Garcia-Machado.

[153] The Associate Chief Justice agreed with the trial judge in that case that the Constable's failure to file a timely report breached s. 8 of the Charter, but disagreed with the decision to exclude the evidence.

[154] The issue then is whether the Return was filed "as soon as is practicable." I resolve this factual determination in the affirmative.

[155] Given the nature of the materials seized, one cannot expect an instantaneous or quick turnaround. There is no evidence of intentional or negligent delay on the part of the police, merely the systematic processing of a large quantity of material. This included referral to the ICE Unit for assistance.

[156] Similarly, Justice Paciocco found no breach of s. 8 arising from a seven day delay in the filing the Reports to a Justice in a similar case: see: R. v. Butters, [2014] O.J. No. 2159.

[157] In another case, Justice Deluzio found that the Report to Justice filed 35 days after the search warrant was executed was "as soon as practicable" taking into account the complexity of the investigation, the number of items seized, and the Detective's own work schedule and obligations.

[158] The next issue is whether a breach of s.489.1, if any, renders the otherwise valid search unlawful and unreasonable. As I have not found any breach, it is not necessary to determine this in this case.

[159] Constable Armour acted reasonably in all of the circumstances.

Did the police "overhold" any of the items seized, by virtue of the fact that they held the items seized beyond the three month maximum period of detention (where no charges are laid, and no extensions obtained)?

[160] Under s. 490(1), the justice to whom a report is made under s. 489.1(1) (b) is required to order the return of the property to the lawful owner or a person lawfully entitled to possession of the item unless the justice is satisfied that detention of the item is required "for the purposes of any investigation or a preliminary inquiry, trial or other proceeding." In that case, the justice may order the item detained for up to three months.

[161] Under ss. 490(2) and (3), if the justice is satisfied that, "having regard to the nature of the investigation," the detention of the item for a further period is warranted; the justice may extend the detention for successive periods, but not for more than a year in total. Importantly, notice of each application to the justice for further detention must be given to the person from whom the thing detained was seized.

[162] Section 490(3) requires an order from a judge of a superior court to detain the item for more than a year, unless proceedings have been instituted in which the thing detained may be required.

[163] In the circumstances of this case, a Return, or Report to a Justice, was filed on February 2, 2010 before a Justice of the Peace, other than the Issuing Justice. On the same date, the Justice of the Peace ordered the items seized be detained in the custody of Constable Armour until "dealt with according to law." In so endorsing, the judicial officer crossed out the finite time limitation in the draft Order of Detention.

[164] The Information charging the Applicant with possession of child pornography was sworn on April 25, 2010, with a replacement information sworn on May 21, 2010.

[165] The passage of time from the date of the seizure to the date the information was sworn is 96 days inclusive. The result is approximately 6 days more than indicated standard three month initial detention period.

[166] The officers did not apply to extend the detention for a successive period not exceeding three months. The officer should have known that the Criminal Code did not allow for the form of the order endorsed. However, it was reasonable for the police to rely on the Justice of the Peace to make the correct order, and to assume he knew the law of retention.

VII. THE SECOND WARRANT

With respect to the Search Warrant obtained by the police in March, 2010 (the Second Warrant), should anything contained in its associated Information to Obtain (ITO) be excised and, if so, could the Second Warrant nevertheless have been issued?

[167] When the Issuing Justice signed the First Warrant, he specifically indicated that a Second Warrant would be required to search the computer data. The propriety of this step of specific authorization was confirmed more than two years later by the Supreme Court of Canada in R. v. Vu, [2012] 2 S.C.R. 411.

[168] In light of the findings that the seizure of the Montréal Feb 2009 CD was outside the authorization of the First Warrant, paragraphs 7 to 10, of the ITO Grounds all stemming from the examination of the Montréal disk, would have to be excised.

[169] The images found on the SD card seized were also mentioned, but would not be considered child pornography. Dr. Collins' opinion derived in large part from the reported images on the Montréal CD, and would be substantially redacted from the ITO as well. This disk was the sine qua non link to reasonable and probable grounds to believe the computer would contain extant or deleted child pornography.

[170] In conclusion, the Second Warrant could not have been issued with those redactions. This would not entitle the police to examine the hard drive of the seized computer, nor to compare those files with the Montréal CD.

VIII. SECTION 24(2)

[171] Having found a breach or breaches of s. 8 of the Charter, a Grant analysis is necessary. This involves consideration of all the relevant factors in assessing the seriousness of the breach and the impact of the breach on the Charter-protected interests of the Applicant.

A. The Seriousness of the Charter-Infringing Conduct

Any breach relating to the grounds for issuance of the warrants

[172] The Court did not find a breach relating to the grounds for the issuance of the First Warrant. Although the Issuing Justice indicated the grounds were "thin," he found them sufficient. His decision is entitled to some deference.

[173] The Second Search Warrant was to access the computer hard drive. The Second Warrant, when the over-seizure of the CD and its analysis is redacted, cannot stand, and the warrantless search resulting is a serious breach of the constitutional standard, favouring exclusion. I do, however, expressly consider that the initial search was authorized by a warrant, which allowed for the camera and SD card, inter alia, to be seized. It also allowed for the computer to be seized but not analyzed unless a further warrant was obtained to do so.

Any breach relating to the seizure of the Montréal 2009 disk

[174] The breach involves governmental intrusion into the privacy interests of the Applicant. Of that, there is no doubt. It is for that reason that the pre-requisites for police to search a residence include review by a Justice to determine if a search warrant should issue, and on what terms.

[175] In the unusual circumstances of this case, the police were informed orally of the redactions to the warrant, written editing or amendments were made, and the limitations were clearly explained. The failure to follow clear direction amounts to a serious breach of the Applicant's s. 8 rights.

[176] I am mindful of the evidence of Constable Armour that, after the issuance of the First Warrant, she sought some advice from the ICE Unit, perhaps Constable Lancaster, and from Crown counsel Ms. Allison, who was imbedded in Derry Road police station assisting Special Services. Unfortunately she had no notes of any such consultation, and it would be difficult to have a distinct independent recollection of the timing of any such discussion five years later.

[177] Constable Lancaster's agreed evidence was no recall of consulting with Constable Armour, no notes of any such consultation, and no recall of ever seeing the edited Appendix A.

[178] Neither counsel called the Crown Ms. Allison to give evidence on this voir dire.

[179] The Court cannot be satisfied that any consultation took place between the time the Issuing Justice signed the warrant for pick up, and the time the briefing was held near the residence of the Applicant.

[180] If such a consultation did take place it would attenuate the breach somewhat as it exhibits good faith, but it had the potential to compound any confusion or misinterpretation of the oral directions of the Issuing Justice, if the officers did not digest what they were being told. Reading the cross-outs alone would not suffice as a basis for advice.

[181] The police sought judicial authority to seize various items (all of which they knew would be highly personal, private and subject to a high expectation of privacy). The issuing Justice plainly told the police officers that everything except one specific item was "a real reach" and was not granted. The officers failed to take any steps to clarify any misunderstanding regarding the scope of their authority and told the Issuing Justice they understood. According to their testimony, they each treated the numerous deletions as making no difference whatsoever to their intended search. They then attended the Residence and seized the very items the Issuing Justice ruled could not be seized. In doing so, they ignored the discretionary ruling of Issuing Justice and, as discussed in Guo and Caranci, transferred the discretion to themselves.

[182] The breach in this case is not minor or technical. The seriousness of the infringing state conduct weighs heavily in favour of exclusion.

Any breach relating to the detention of post-seized property

[183] The Court has not found a breach of s. 8 by virtue of filing the Report to a Justice thirteen days after the execution of the First Warrant.

[184] I accept the evidence that Constable Armour was careful in her analysis of the large volume of seized items. She required the assistance of the ICE team to isolate items on media which could infringe s. 163.1 of the Criminal Code. The officer also returned any material seized not required for the investigation promptly to the Applicant before making the Report to a Justice. These steps were entirely reasonable in order to know what evidence she wanted authorization to keep or detain, and to report what things that had been seized were already returned.

[185] Based on the totality of circumstances, the Feb. 2, 2010 Report fell within the definition of "as soon as is practicable."

[186] If there was any breach of s. 489.1(1) in that the report was more than a week after the seizure, it was "a case of delayed compliance, not of complete non-compliance", and was minor or technical in nature.

[187] The Court has found a technical breach by virtue of noncompliance with s. 490. The officers either should have sworn the information by April 20, 2010 or applied for an extension of detention.

[188] The Constable had not acted in bad faith, or with wilful or reckless disregard for the law. Moreover, she was entitled to rely on the official imprimatur of the Justice.

[189] In addition, the Justice of the Peace would inevitably order detention of the evidence on any extension request. This breach would not favour exclusion.

B. The Impact of the Breach on the Applicant's Charter-Protected Rights

[190] The Supreme Court of Canada has commented that "it is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search or seizure of a personal computer": R. v. Morelli, [2010] 1 S.C.R. 253, at para. 2.

[191] Personal digital storage devices, such as DVD's, CD's and flash drives involve similar privacy issues as computers and attract a similarly high degree of protection of privacy.

[192] The infringement of s. 8 by seizing items prohibited by the First Warrant has great impact on trial fairness. It allowed the police to obtain evidence they were not lawfully entitled to obtain, which is critical to the prosecution. This favours exclusion.

[193] Although the complete failure to comply with the statutory obligation to file a Report to a Justice would be unacceptable because it compromises the ability of courts to maintain control over powers of seizure, any breach in failing to comply strictly with ss. 489 to 490 of the Criminal Code had no real impact on the Applicant's Charter-protected rights. Had the Justice made the detention authorized for only three months, the police could have applied for an extension, which in all likelihood would have been granted given the complex investigation when analyzing computer and media material. If that were the only breach involved, it would favour inclusion.

C. Society's Interest in Adjudication on the Merits

[194] All of the sections of the Criminal Code that set out the various authorizations that may be granted were designed to assist police in their investigation of criminal activity. Those sections ought to be interpreted in a manner that facilitates such investigations balanced against the recognized requirement that the police demonstrate good reason for the infringement of any person's privacy.

[195] Society's interest in adjudication on the merits favours admission of the evidence. Investigations of child pornography cases are complex. The crime itself is very difficult to detect. The computer images and deleted files are real evidence are not conscripted. This factor favours inclusion of the evidence.

D. Balancing the Factors

[196] I am driven to conclude that society could be appalled that the police would either purposefully seize material in a residence search, which the Issuing Justice had expressly forbid; or mistakenly and negligently misinterpret the limits of their authorization.

[197] Overall, although the evidence obtained was real evidence and very important to the Crown's case, the manner the evidence was obtained is a significant invasion of privacy outside the purposes for which the warrant had been issued, and should be excluded. The police had a duty to comply with the direction of the Issuing Justice. To do otherwise would "equate to transferring judicial discretion and serve to undermine the process…"

IX. CONCLUSION

[198] The ultimate officer in charge of the investigation in this case was conscientious and diligent; nonetheless some serious issues arose with the execution of the warrant and items seized. Unfortunately, the errors were not minor, as they go to the heart of the limits imposed on the execution of the First Search Warrant.

[199] One of the first things the police did upon execution of the First Warrant was to view the Montréal CD, which contained the pornographic images. The Issuing Justice expressly prohibited seizure of these types of storage devices in the First Warrant.

[200] The images found on that CD largely formed the basis for the issuance of the Second Warrant to conduct a forensic investigation of the Applicant's computer. When that information is excised from the Second Warrant, it would not have issued. This warrantless search is prima facie unreasonable, and is not constitutionally sound.

[201] The warrantless searches here cannot withstand constitutional scrutiny and infringe s. 8 of the Charter. The evidence would not inevitably be discovered, nor was it in plain view, but for the right to enter a private residence and seize specific items authorized by the Issuing Justice.

[202] In all the circumstances of this case, the infringement of the Charter right is serious. The gravity of the breach is exacerbated by the police officers' applying their own subjective interpretation of the editing changes made by the Issuing Justice, after the search warrant was signed, and after any ambiguity was already clarified by that Justice, and which did not accord with the officers' view of the modifications.

[203] It is compounded by the vague testimony about the pre-execution briefing, which may well have imparted an erroneous instruction to seizing officers in light of the amendments made by the Issuing Justice.

[204] Although perfection is not the standard in cases of search by warrant, the less than punctilious paperwork completed and the mistaken detention of property without seeking an extension of time, evinces a casual indifference to the need for precision. The breach, while technical in nature, must be considered cumulatively with the over-seizure.

[205] The Photo Albums, CDs and DVDs seized pursuant to the First Warrant will be excluded from evidence. This includes the Montréal 2009 CD.

[206] The Second Warrant and the subsequent forensic examination of the computer would not have issued following any redaction or excision of the description of the Montréal CD contents. Therefore, the search of the computer hard drive falls outside of a lawful search and is prima facie unreasonable.

[207] In all the circumstances of this case, the Applicant has met his burden of both establishing the aspects of the searches were unreasonable, breaching s.8 of the Charter, and demonstrating that the admission of this evidence would tend to bring the administration of justice into disrepute.

[208] The four photographs the prosecution relies on are accordingly not admissible into evidence.

[209] The charge therefore will be dismissed.

Released: December 4, 2015

Justice N.S. Kastner

Ontario Court of Justice