ONTARIO COURT OF JUSTICE

CITATION: R. v. Hart, 2015 ONCJ 831
DATE: 2015·01·29
COURT FILE No.: Brampton 13-10873

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PAUL HART

Before Justice D.F. McLeod

Heard on January 27, 28, 2015
Reasons for Judgment released on January 29, 2015

M. Stevens ............................................................................................. counsel for the Crown
W. Schultz .................................................................................... counsel for the accused Hart

McLEOD J.:

[1] Mr. Hart is charged with one count of possession of child pornography to wit graphic photos and videos contrary to section 163.1(4) of the Criminal Code of Canada.

[2] Mr. Hart brings an application alleging that the officers acted outside of their judicial authority when they decided to search and seize contents of a computer located within his home allegedly belonging to him.

Applicable Facts

[3] On August 16, 2013, PRP officer Hilary Hutchinson of the Child Exploitation Unit received a telephone call from the applicant’s estranged spouse, Rosanna Commisso, reporting that she had found child pornography on the applicant’s computer located in the basement of their home. Rosanna Commisso and Mr. Hart have been married for 10 years and at the time were living in the same residence with their children.

[4] Their daughter was to celebrate her birthday on August 18, 2013 and she requested a karaoke game for her gaming system. As a result of her request Mr. Hart agreed to download a series of karaoke songs from the internet to his personal computer.

[5] On August 16, 2013 Ms. Commisso checked Mr. Hart’s computer for the status of the downloads and observed an “N” drive; this drive was not familiar to her. Upon further examination of the unfamiliar drive, she observed files within the drive that were indicative of child pornography.

[6] Ms. Commisso opened a file titled “Ped” and observed images of adults receiving sexual acts from children. Ms. Commisso would later describe the children as having no hip development, no breasts, and no pubic hair, referring to a pre-pubescent female.

[7] Ms. Commisso contacted Cst. Hutchinson shortly before 3 o’clock and explained to her that she had found what she believed to be child pornography. She went on to advise the officer that the computer is located in the basement and is normally password protected but was currently open and running in the house. Ms. Commisso also advised the officer that she expected her husband to arrive home at approximately 5:30 in the evening.

[8] Ms. Commisso, whilst being asked questions, indicated that she was not sure if Mr. Hart’s computer was encrypted and also mentioned a sharing program known as “Soulseek.”

[9] Cst. Hutchinson advised that she went to the Technical Crime Unit to get some information as this was a new area of investigation for her in terms of her level of experience in this particular area of policing. She was advised to take an external drive with her in light of several factors such as a potential for loss of power to the computer, or remote access successfully being attempted which could trigger the evidence shifting to an encrypted space which would lead to a loss of evidence.

[10] Cst. Hutchinson did remain at the division for just under an hour and attended to other duties as well as waiting for another officer who could join her as a partner. Cst. Parkins was eventually available, and at 3:52pm, both officers attended at the residence arriving there at 4:18pm.

[11] Upon arrival both officers spoke with Ms. Commisso with respect to the allegations. Ms. Commisso advised the officers that she was not familiar with “Truecrypt,” however she did recall seeing it for the first time that day. Ms. Commisso also advised that she did not know if the computer was encrypted, but was aware that it was password protected. Ms. Commisso also advised that her husband uses cloud computing and is computer savvy.

[12] Eventually the officers were lead down to the basement and Ms. Commisso moved the mouse to show the officers the files. At that time, Cst. Hutchinson saw the TrueCrypt screen ‘N’ drive and a list of folders. Ms. Commisso then clicked on a file that contained a picture of an adult male inserting his penis into the exposed vagina of a prepubescent girl, fitting the description of child pornography.

[13] In light of what was witnessed by Cst. Hutchinson and the advice she had received back at the division, the officers proceeded to copy the files to a police storage device.

[14] The applicant returned home while the officers were in the basement copying the files. The computer equipment was then seized by the officers and the applicant was arrested.

[15] Based on the information provided to Cst. Hutchinson at the station coupled with the belief that the computer had encryption software on it, Cst. Hutchinson believed that the contents of the computer needed to be preserved. In light of the fact that the evidence was in a decrypted state, Cst. Hutchinson believed the best course of action was not to acquire a warrant but rather to copy the materials. Eventually the materials were copied to a police storage device.

[16] Further, the police seized the computer, an external hard drive, and a network attached storage device. After obtaining a warrant some 4 months later the police proceeded to search the contents of the material seized from the applicant’s home. The search revealed a collection of child pornography comprised of 250 movie files and 4370 images on the external drive. The desktop also contained 110 images of child pornography.

Applicant’s Position

[17] The applicant submits that Officer Hutchinson should have applied for a warrant to search and seize the applicant’s personal computer prior to attending at the applicant’s residence.

[18] The applicant suggests that no new information was received after the phone call on August 16, 2013 from Ms. Commisso prior to Officer Hutchinson getting a warrant to search the applicant’s computer issued on December 5, 2013. All of the details from the phone call from Ms. Commisso should have been provided to a justice and a warrant should have been applied for prior to any search being done on the applicant’s personal computer.

[19] Further, there were no exigent circumstances which would have necessitated the evidence having to be dealt with in an expedited fashion. The officer could have requested a tele-warrant in the event that time was of the essence. Cst. Hutchinson had all of the relevant information needed to make such a request but did not do so because she had never turned her mind to such a possibility.

Respondent’s Position

[20] The respondent contends that the seizure of the computer and storage devices was lawfully done. The common law recognizes exigent circumstances as a basis for searching property without a warrant where the police possess reasonable ground to obtain a warrant.

[21] PC Hutchinson’s actions both during and subsequent to the downloading of the evidence suggest that the level of urgency was not paramount but rather the officer never turned her mind to getting a warrant in the first place.

Exigent Circumstances

[22] The central feature of this matter is the interpretation of exigent circumstances and whether or not the actions that were undertaken by the officers in this matter were necessary under the circumstances.

[23] The circumstances as they present themselves with respect to this issue are as follows:

(a) Cst. Hutchinson is made aware on the 16th of August that there is potentially child pornography on a computer located in the basement of a home shared by Ms. Commisso and Mr. Hart;

(b) Cst. Hutchinson is made aware of the potential for materials being housed on a computer to be encrypted without any warning. Cst. Hutchinson points to the possibility of a natural disaster, sudden power loss, as well as remote access as being eventualities that could cause the loss of evidence which is currently on the computer;

(c) Cst. Hutchinson also indicated that she did not believe that she could avail herself of a tele-warrant, because in her mind the data could be encrypted at a moment’s notice;

[24] Justice Rosenberg in R v. Kelsey 2011 ONCA 605, [2011] O.J. No. 4159 CA, defines exigent circumstances as having been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.

Imminent Risk or Loss or Destruction of Evidence

[25] It was the belief of Cst. Hutchinson that the evidence currently on Mr. Hart’s computer could be lost at any moment, thus in some respects significantly halting the investigation. This belief in large measure was premised on the information provided to her by the officers in the Technical Crime Unit.

[26] Cst. Hutchinson, in many respects, was not only new to this detachment but based on her evidence this case was going to be the first of its kind for her. Naturally her reliance on the collective experience of her colleagues was going to be key and would act as a backdrop for the manner in which she conducted the investigation.

[27] When inquiring about the software on the computer and the realization that TrueCrypt was also found, Cst. Hutchinson believed that the possibility of the materials being encrypted was a real and plausible one. Further, the notion of remote access was also discussed in that if the software was organized on the computer in such a way that it could be accessed and then encrypted off-site this would again raise the specter of lost evidence.

If time permitted could the police have obtained prior authorization?

[28] Based on the information provided to Cst. Hutchinson with respect to what was seen on the computer by Ms. Commisso, the fact that the officers themselves were able to see the image and believed it to be child pornography, from a computer that belonged to Mr. Hart and was equipped with the TrueCrypt software indicates to this that a warrant could have been obtained based on the information the officers had to this point in the investigation.

Rosenberg in R v. Kelsey - states in my view, the premise underlying the exigent circumstances doctrine where there is an imminent risk of loss or destruction of evidence is that, if time permitted, the police could have obtained prior authorization, usually in the form of a search warrant. Ordinarily, this means that the police would have had reasonable grounds.

[29] I further find that the fact that the officers, after seizing the information and downloading it to another receptacle, did not at that time take the opportunity to search the materials as a less intrusive procedure.

[30] The search of a personal computer gives police officers access to an almost limitless universe of information that users cannot control, that they may not even be aware of, may have tried to erase, and which may not be, in any meaningful sense, located in the place of search R v. Vu 2013 SCC 60, [2013] SCJ No. 60

[31] The officers in the Hart matter in the course of their investigation do as is stipulated in R v. Vu in that the computer is seized and the officers subsequently do what is judicially required in order to secure a separate warrant in order to search.

s. 487.11

[32] Although not strenuously argued I do find that the officers acted within their common law powers to search for evidence in exigent circumstances. 487.11 of the Criminal Code authorizes a warrantless search by a police officer if the conditions for obtaining a warrant under s. 487(1) or 492.1(1) exist “but by reason of exigent circumstances it would be impracticable to obtain a warrant.”

Waterfield Doctrine

[33] This court believes that the conduct of the officers on the day in question with respect to the computer and the seizing of materials was within the general scope of their duties imposed by statute.

[34] Further this court believes that conduct was indeed justifiable.

[35] In light of the above the Court does not need to move to the step of a section 24(2) analysis and the application will be dismissed.

Released: January 29, 2015

Signed: “Justice D.F. McLeod”