Court File and Parties

Ontario Court of Justice

Date: 2018-05-14

Court File No.: Brampton 16-13740

Between:

Her Majesty the Queen

— and —

Marcin Lebzuch

Before: Justice P.T. O'Marra

Heard on: January 9, 2018

Reasons for Judgment released on: May 14, 2018

Judgment on Application for Leave to Cross-Examine the Affiant and Sub-Affiant of the Information to Obtain a Search Warrant

Counsel:

Mario Thomaidis — counsel for the Crown

Christopher Tarach — counsel for the accused Marcin Lebzuch

P.T. O'Marra J.:

Introduction

[1] The Applicant, Marcin Lebzuch seeks an order for leave to cross-examine the affiant, Constable Martin and the sub-affiant, Constable MacDonald with respect to an Information to Obtain (hereinafter referred to as the "ITO") a search warrant of the Applicant's residence located at 56 Cowan Road, Brampton, Ontario issued by a Justice of the Peace on October 20, 2016.

[2] The search warrant was executed on October 25, 2016 and police seized eight computer devices from the residence.

[3] After the review of the devices seized from the Applicant's address, confirmed the existence of child pornography on a solid state drive of a computer device found in the basement of the residence, the applicant was arrested and charged for Possession of Child Pornography contrary to section 163.1 of the Criminal Code of Canada and Accessing Child Pornography, to wit: graphic computer files contrary to section 163.1(4.1) of the Code.

Summary of the Facts

[4] The summary of the facts are extensively outlined in the Applicant's factum at paragraphs 4-16 which is based on "Grounds for Belief" in Appendix "C" of the ITO. Since the Applicant has not introduced any additional or contradictory evidence, the Court can only consider the sworn statements of Constable Martin.

The Applicant's Position

[5] The Applicant argues that the ITO lacks information in important areas that explained the investigative process through which the police linked the computer user that utilized the suspected IP address 174.112.142.63 and the possession of the child pornography.

[6] The Applicant submits that these informational shortcomings in the ITO can only be remedied if the Court grants leave to cross-examine the affiant and the sub-affiant.

[7] If the Court grants leave, the Applicant seeks to cross examine the affiant and the sub-affiant in the following areas:

(i) The operation of the Gnutella network in conjunction with the Child Protection System (Hereinafter referred to as the "CPS"), media library and the ShareazaLE.

(ii) The operation of the Gnutella network as personal software.

(iii) The inability of Constable MacDonald to directly download files from IP address 174.112.142.63.

(iv) The relevance of the suspected IP address being a dynamic or static address, the relevance of a lack of permanency of an IP address, what type of IP address the suspected IP address was given, and how a dynamic or static IP address affects downloading on the Gnutella network and how CPS views a particular user on the Gnutella network.

(v) The information Constable MacDonald was able to see of the unknown user's files prior to attempting to directly download the files with ShareazaLE and adding files to the media library within CPS.

(vi) How Constable MacDonald was able to "add" files observed in the suspect's shared folder to the media library within CPS.

(vii) The process through which Constable MacDonald was able to acquire the hash value from the suspect IP address while not being able to directly download the file, and the relevance to it not being 100% downloaded by the suspected IP address.

[8] If the Court grants leave to cross-examine, the Applicant submits that the areas of questioning are sufficiently narrow and will provide meaningful evidence for the Court to determine if any of the pre-conditions for the issuance of the warrant existed at the time the warrant was issued.

[9] The Applicant should be permitted to cross-examine on the information provided by the sources, namely the Gnutella network, CPS and its media library, and ShareazaLE and its relation to the state of mind of the affiant and sub-affiant with respect to having reasonable and probable grounds that the suspected IP address was in possession of child pornography or some other explanation.

[10] The Applicant contends that since Constable MacDonald was required to add files observed to the CPS media library, questions should be permitted about what led to this activity, and the inability of Constable MacDonald to download any files from the unknown computer user. This information will assist in ascertaining the nexus between the suspected IP address and the officer's grounds for believing an unknown user at the suspected IP address was in possession of child pornography.

[11] The overarching principle behind the application is that since the basis of the ITO was the online police investigation that gave rise to the belief that the suspected IP address possessed child pornography, and if that belief was discredited then the factual basis of the grounds is undermined.

Crown's Position

[12] The Crown argues that the Applicant has not demonstrated a reason why cross-examination "will elicit testimony tending to discredit the existence of a pre-condition to the authorization" for the warrant and therefore, should be dismissed. The Applicant has not shown a reason why the cross-examination will elicit testimony probative to the "narrow basis upon which an authorization can be set aside".

[13] The Crown points out that the Applicant has not stated there were any errors or omissions, whether made through advertence, inadvertence, good or bad faith by the affiant or sub-affiant.

[14] Since the Applicant has not demonstrated that there is a reasonable likelihood that the cross-examination can assist in discrediting any of the pre-conditions to the issuance of a warrant, the Applicant cannot simply speculate that the cross-examination of the various computer programs will yield evidence that in some way will be relevant to the narrow inquiry before the Court.

The Law

[15] The Supreme Court of Canada has made it clear that there is no automatic right to cross-examine an affiant. (See: R. v. Garafoli, [1990] 2 S.C.R. 1421 and R. v. Pires and R v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343). Leave must be sought and can only be granted when the applicant has demonstrated that cross-examination will afford evidence that tends to discredit a pre-condition of the authorization of the warrant. (See: Pires and Lising, supra. Paras. 10 and 38.)

[16] There is a constitutional presumption of validity that applies to the search warrant of a home. The Applicant bears the burden of proof in this application to establish the unreasonableness of the search on a balance of probabilities. (See: R. v. Colbourne, [1998] O.J. No. 5913 (S.C.J.))

[17] With respect to the application at bar, the Court must determine the following question: whether or not the warrant application contains any basis upon which the justice could have granted the warrant? If the proposed cross-examination is not likely to assist in the determination of this question, cross-examination should not be permitted. The Court is not to replace its own view for that of the issuing justice. The court is not permitted to conduct a de novo hearing of the warrant application.

The Merits of the Application

[18] On the basis of the record before the Court, the Applicant has failed to demonstrate that the proposed areas of cross-examination of the affiant or sub-affiant point to a reasonable likelihood that it will elicit testimony of probative value that will tend to discredit the basis for the authorization of the warrant.

[19] The Court is not satisfied for the following reasons:

(1) The Applicant has not established an evidentiary basis for doing so to undermine the integrity of the reasonableness of the issuing of the search warrant.

(2) The Applicant has not adduced any meaningful or cogent evidence, but relied on general statements in its factum and submissions. There was no evidence led by the Applicant that undermines the credibility of the affiant or sub-affiant which is a factor that the Court takes into consideration. In R. v. Washington, [1997] O.J. No. 4163 (C.A.) the Ontario Court of Appeal states at paragraph 10:

"Again, defence counsel called no evidence to support its motion for leave to cross-examine the affiant and the sub-affiants. This was a factor which the trial judge stressed when she noted that there was no evidence which undermined the credibility of the affiant and the sub-affiants"

(3) The Court's overall impression is that even if cross-examination was permitted the Applicant cannot provide any examples of what the evidence will be. There is no sense as to what testimony will result. The requisite areas that are being sought for cross-examination are open rather than narrow and focused. For example:

(i) The request to cross-examine about all aspects of the operation of the Gnutella network as personal software, and how it interfaces with the CPS, media library and ShareazaLE is too broad. Furthermore, it is unclear as to how any evidence elicited would tend to discredit a pre-condition of the authorization of the warrant.

(ii) The relevance of the suspected IP address being dynamic, static, its lack of permanency and its effect, if any, on the downloading on the Gnutella network, was never demonstrated how it would have affected the validity of the search warrant. The request to cross-examination in this area seems equivalent to a discovery.

(iii) Since the warrant application involved a file on the suspect's computer between July 6 and August 22, 2016, it is indistinct how cross-examination on the fact that Constable MacDonald was unable to directly download files from the suspect IP address on September 28, 2016 or what he was able to observe on the unknown user's file prior to his efforts to both download the files with ShareazaLE and adding the files to the media library within CPS, could elicit testimony that could tend to discredit a pre-condition of the warrant.

(iv) Finally, there were two discreet areas advanced by the Applicant for leave to cross-examine: Firstly, how Constable MacDonald was able to add files in the suspect's shared folder to the media library within CPS? Secondly, what was the methodology that Constable MacDonald used to acquire the hash value from the suspect IP address while not being able to directly download the file? The answers to foregoing questions are contained in the ITO at paragraphs 8 and 13 of the "II. Definitions" section and paragraphs 2 (e) to (m) of the "V. Grounds to Believe an Offence has been Committed" section of Appendix C.

[20] For these reasons above leave to cross-examine the affiant and sub-affiant is refused.

Released: May 14, 2018

Signed: Justice P.T. O'Marra