Court Information

Ontario Court of Justice

Date: November 20, 2018

Information No.: 16-13074

Parties

Between:

Her Majesty the Queen

— And —

Andrew Bloch-Hansen

Judicial Officer and Counsel

Before: Justice G.L. Orsini

Heard on: October 9, 2018

Reasons released on: November 20, 2018

Counsel:

• James Boonstra, for the Crown
• James Dean, for the defendant Andrew Bloch-Hansen

INTRODUCTION

[1] This ruling is with respect to an Application brought under Sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of accessing and possessing child pornography obtained pursuant to a judicially authorized search warrant.

[2] The Applicant submits, among other things, that the warrant was issued on the basis of unfounded and misleading information contained in the Information to Obtain (hereinafter "ITO") and that the administration of justice would be brought into disrepute if the resulting evidence was admitted at the Applicant's trial.

[3] These reasons explain why I am granting the Application and excluding the evidence obtained during the course of that search.

FACTS

Background

[4] On December 12, 2016, London Police executed a search warrant on the residence of 835 Hickory Rd., London, ON, where the Applicant lived with his parents. They were looking for evidence in relation to the above-noted offences.

[5] The Applicant was present during the course of the search and told police that he had accessed child pornography through a website known as PlayPen under the username Akio34. He also admitted that child pornography would be found on his computer. A subsequent search of his personal computer uncovered those images as well as a number of child pornography videos.

[6] As a result, the Applicant was charged with accessing and possessing child pornography.

The FBI Investigation – "Operation Pacifier"

[7] In order to fully appreciate the nature of the investigation and the issues involved in this case, one needs to have a basic understanding of how internet users are identified.

[8] When individuals obtain internet services, they do so through an Internet Service Provider, such as Rogers Communications. The Internet Service Provider then assigns an Internet Protocol (IP) number to the individual customer. Internet activity can then be tracked through this number. Each IP number is unique and specific to the customer and the location from which the internet service is being used. Because it is specific to a location, it is commonly referred to as an "IP address".

[9] "Tor" is a free software program that can be downloaded to a computer. It allows the user of that computer to browse the internet anonymously by masking the IP address from which the internet is being used.

[10] Sometime prior to February 2015, the FBI became aware of a Tor-based website known as PlayPen which was dedicated to the online exploitation of children. PlayPen made it possible for individuals with Tor software to anonymously access child exploitation material posted on their website.

[11] Ultimately, the FBI was able to determine the physical location from which the site was being operated. On February 15, 2015, the PlayPen website was shut down following the arrest of its Administrator.

[12] In order to further its investigation of individuals accessing child pornography, the FBI reconstituted the PlayPen website from an FBI facility. The site was then allowed to operate between February 20 and March 5, 2015, during which time the FBI utilized an investigative technique that allowed them to work around the Tor software and unmask the IP addresses of users that had accessed the website.

[13] The project, dubbed "Operation Pacifier", has since been the subject of extensive litigation throughout the United States and elsewhere due to the scope and international nature of the investigation and questions surrounding the FBI's international jurisdiction.

[14] On June 24, 2015, the FBI forwarded an investigative package to the National Child Exploitation Coordination Centre (hereinafter "the NCECC"), which functions as a Canadian point of contact for investigations involving the sexual exploitation of children on the Internet. The package contained information with respect to Canadian IP addresses that had allegedly accessed the PlayPen website during the above-noted period.

[15] On May 31, 2016, the NCECC made a referral to the London Police Service after determining that one of those IP addresses, associated with the username Akio34, was located in London, Ontario.

The Information to Obtain

[16] It wasn't until November 15, 2016 that Constable Johnson of the London Police Service reviewed that information. It formed the basis of the ITO which she prepared and swore to in support of the warrant in this case.

[17] Paragraph 22 of the ITO summarizes the information gathered by the FBI and subsequently forwarded to Constable Johnson by the NCECC. It included the following:

(i) Individuals would access the PlayPen website with the use of a username and password;

(ii) After gaining access to the site, the user could access child pornography by clicking on a post and then a link within that post that contained the child exploitation material;

(iii) The FBI was able to determine which posts each user went to, and then the link and images accessed;

(iv) An individual with the username Akio34 was first observed accessing PlayPen on February 21, 2015 and had accessed numerous links between February 22, 2015 and March 4, 2015;

(v) Some of those links contained no images, some contained only one image while others contained many images;

(vi) The FBI provided the images accessed by Akio34;

(vii) Constable Johnson reviewed those images and believed that many of them met the definition of child pornography;

[18] As indicated in paragraph 23 of the ITO, the FBI identified the IP address being used by Akio34 on one occasion. Paragraph 23 reads, in part, as follows:

23. The IP address identified by the FBI for the user Akio34 was 99.249.125.131. This IP address was observed on February 28, 2015 at 8:52 PM UTC. IP address 99.249.125.131 returns to Rogers Communications.

[19] Constable Johnson also stated in the ITO that many of the links that contained images had images which she believed met the definition of child pornography.

[20] I note that there is no information contained within the ITO as to how the investigative technique used by the FBI actually worked, whether the user was accessing child pornography when the IP address was "observed" and the period of time over which the observation was made. With the consent of the Crown, counsel for the Applicant was permitted the opportunity to cross examine Constable Johnson about the nature of Project Pacifier and how information was gathered by the FBI. Constable Johnson testified that she was unaware of the investigative technique used or what it involved.

[21] On December 7, 2016, Constable Johnson sent a Production Order to Rogers Communications. The results, received the following day, revealed that the IP address observed on February 28, 2015 originated from 835 Hickory Rd., London, ON. The subscriber was identified as David Bloch-Hansen, with a specified phone number.

[22] Constable Johnson then conducted records checks through the Ministry of Transportation. She confirmed 835 Hickory Road was David Bloch-Hansen's current address and that he had been reporting this address to the Ministry since May 1981.

[23] Constable Johnson also conducted a police records check which revealed a male with the same name and phone number residing in the same address as indicated by Rogers Communications.

[24] Finally, Constable Johnson conducted an open source search on the identified phone number using Canada 411.ca and found that it was registered to D. Bloch-Hansen residing at the same address of 835 Hickory Rd., London, ON.

[25] On December 9, 2016, Constable Johnson obtained a warrant to search the residence for evidence in support of the charges of accessing and possessing child pornography. It was executed on December 12, 2015. As indicated previously, the police seized the Applicant's personal computer which contained a number of images and videos relating to child pornography.

LAW

[26] Section 487 of the Criminal Code provides that:

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which an offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of a offence, or will reveal the whereabouts of a person who was believed to have committed an offence, against this Act or any other Act of Parliament

…may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it…

[27] Section 8 of the Charter provides that:

Everyone has the right to be secure against unreasonable search and seizure.

[28] Under the Charter, a search warrant can be issued only where the police provide "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" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 168).

[29] Once a search warrant has been issued, it is presumptively valid. Where the defence challenges the sufficiency of a warrant application, the judge reviewing the application must determine whether there was "reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 54).

[30] The reviewing judge does not consider the matter de novo. The question is not whether he or she would have issued the warrant. The question is whether there was some "credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place" (R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 40).

[31] In conducting such a review, the reviewing court is required to exclude erroneous information included in the ITO. The court must then determine whether, absent such information, grounds nevertheless existed for its issuance. There must be "at least some evidence that might reasonably be believed on the basis of which the authorization could have issued" (R v. Araujo, supra at para. 51, 54 and 58).

[32] Where information contained in the ITO appears to be misleading or unsupported, it is open to the Crown to amplify it on review in an attempt to show that the information was, in fact, true (R v. Plant, [1993] 3 S.C.R. 281).

POSITION OF THE PARTIES

The Applicant

[33] The Applicant submits that his right to be free from unreasonable search and seizure, as guaranteed by section 8 of the Charter, was violated in the following ways:

(i) The Applicant submits that the search authorized by the warrant was overly broad insofar as it authorized police to search for downloaded materials. The Applicant submits that there was no evidence in the ITO that Akio34 did anything more than view child pornography. The Applicant submits that Constable Johnson relied on broad generalizations and stereotypes of the habits of child pornography users in support of her belief that Akio34 could have saved such images. The Applicant submits that these broad generalizations and stereotypes could not form a reasonable basis for believing that Akio34 could be in possession of child pornography.

(ii) Leaving aside the scope of the warrant, the Applicant submits that there was no basis for issuing it in the first place. In this regard, the Applicant raises the following three grounds:

(a) the evidence cited in the ITO was stale and therefore incapable of forming a reasonable basis for believing that a search of the residence would reveal evidence in support of the offences under investigation. The Applicant points to a delay of 21.5 months from March 4, 2015, when Akio34 was last observed accessing PlayPen, and December 9, 2016, when the ITO was sworn;

(b) The Applicant further submits that the evidence relied upon in the ITO linking Akio34 to a specified IP address was the result of an investigative technique which, if used in Canada, would amount to a violation of the Applicant's section 8 right under the Charter. The Applicant submits that Canadian authorities should not be permitted to rely upon such evidence; that to do so would amount to tacitly encouraging Canadian authorities to circumvent the Charter by relying upon foreign investigations; and

(c) Finally, the Applicant points to what it says is the misleading and unfounded claim in the ITO that child pornography was being accessed on the PlayPen website from the specified IP address associated with 835 Hickory Rd. in London, ON.

[34] The Applicant submits that a proper balancing of the Grant factors should result in the exclusion of the evidence from the trial process.

The Respondent

[35] The Crown submits that the Applicant has failed to discharge the burden of demonstrating that there is no basis upon which the issuing Justice could have issued the search warrant in question.

[36] The Crown points to cases where search warrants have survived similar challenges with respect to both staleness and breadth.

[37] The Crown also says, in the circumstances of this case, the Charter does not apply to actions in a foreign jurisdiction and Canadian authorities are therefore entitled, if not obligated, to rely on foreign-gathered evidence.

[38] The Crown says that there is credible and reliable information contained within the ITO upon which the issuing Justice could reasonably conclude that the individual associated with the IP address observed on February 28, 2015 was accessing child pornography on the PlayPen site. The Crown points to the fact that, unlike other websites, PlayPen is solely dedicated to the online exploitation of children.

[39] Finally, in the event that the court finds a breach of Section 8 of the Charter, the Crown says the Applicant has failed to establish that the admission of the evidence seized would tend to bring the administration of justice into disrepute under section 24(2) of the Charter. The Crown says that Constable Johnson was acting in good faith pursuant to a judicially authorized warrant and that she did not deliberately mislead or misstate any information contained within the ITO.

ANALYSIS

[40] For the reasons enumerated in R v. Porter, [2016] O.J. No. 4654 (ONSC), I am not satisfied that the warrant was overly broad or that the information contained within the ITO was stale. I note that the affiant in that case was also Constable Johnson and that the information contained in the Porter ITO was more dated than is the case before me.

[41] I also reject the Applicant's argument with respect to the extraterritorial application of the Charter. In my view, R v. Hape, [2007] 2 S.C.R. 292, is dispositive of the issue.

[42] As indicated in Hape, the first step in determining whether the Charter applies to a foreign investigation is to ask whether the activity in question falls under section 32(1) of the Charter. That can only be the case where the foreign investigation involves the participation of a Canadian state actor. That was clearly not the case here. Accordingly, the Charter cannot be applied to the actions of FBI in this case, which occurred in the United States without the participation of a Canadian state actor.

[43] This leaves the argument that the ITO contained misleading and unfounded statements which, if excised, would result in an absence of grounds to justify the issuance of the warrant.

[44] The ITO is replete with references to the username Akio34 accessing the PlayPen website between February 21, 2015 and March 4, 2015. It also indicates that between February 22, 2015 and March 4, 2015, Akio34 accessed many images within links on the PlayPen site which met the definition of child pornography. Three specific images are described in graphic detail.

At the same time, it is clear that some of the links accessed by Akio34 contained no images whatsoever while some contained only one image. Moreover, there is no information as to whether the images that met the definition of child pornography were accessed on each day during the above-noted period. There is, for example, no suggestion that Akio34 accessed child pornography on February 21, 2015 when it was first observed on the PlayPen site, or on February 28, 2015 when it was "observed" to be operating from the Applicant's residence.

[45] The ITO leaves open the possibility that at any given time:

(a) Akio34 accessed the PlayPen site without clicking on any links within a given post;

(b) Akio34 accessed links which contained no images of child pornography;

(c) Akio34 accessed links which contained images of child pornography.

[46] Again, there is no evidence that Akio34 accessed any images, let alone images which met the definition of child pornography, on February 28, 2015, when the IP address attached to the Applicant's residence was "observed". For that matter, there is no evidence as to how long Akio34 was accessing the PlayPen site on that occasion. The only evidence in the ITO is that the IP address was observed on that date at 8:52 PM.

[47] Most importantly, there is a total absence of evidence as to the location from which Akio34 was accessing the PlayPen site on any other occasion. The Crown conceded as much in its submissions. No attempt to amplify the warrant was sought.

[48] In spite of this, Constable Johnson asserts within the ITO that Akio34 was repeatedly accessing child pornography from the IP address associated with 835 Hickory Rd. This occurs at the following paragraphs:

22. Between February 22, 2015 and March 4, 2015 the user Akio34 visited the PlayPen website on the Tor network and accessed numerous links to child pornography. The IP address used by the user Akio34 was 99.249.125.131 (emphasis added)

23. Between February 22, 2015 and March 4, 2015 the user of Akio34 visited the PlayPen website on the Tor network and access numerous links to child pornography using the Internet service at 835 Hickory Rd., London, ON (emphasis added).

24. Between February 22, 2015 and March 4, 2015 the user of Akio34 visited the PlayPen website on the Tor network and access numerous links to child pornography using the Internet service at 835 Hickory Rd., London, ON (emphasis added).

25. I believe based upon the above-noted facts that David Bloch-Hansen or an unknown person, used a computer device and the Internet service at 835 Hickory Rd., London, ON and accessed numerous images of child pornography on the PlayPen website

[49] These paragraphs incorrectly state that child pornography had been accessed from the identified IP address on multiple occasions when, in fact, it had only been observed accessing PlayPen on one specific occasion with no mention as to whether any child pornography was accessed at that time. Simply put, there was no factual foundation for any of these assertions.

[50] This, in my view, is significant in light of the portability of devices capable of accessing the Internet. The device used by Akio34 could have been a laptop, a "notebook" computer, a smartphone or iPhone or iPad. Viewed in this light, there is no evidence that Akio34 is necessarily synonymous with the specified IP address observed on February 28, 2015. While that may be the case, it need not necessarily be so.

[51] The question which must be asked is whether, in the absence of the erroneous paragraphs enumerated above, the authorization could have issued. Standing alone, was the link between Akio34 and the specified IP address associated with 835 Hickory Rd on one occasion, some 21 months earlier, and without any evidence of having accessed child pornography at that time, enough to justify the issuance of a search warrant.

[52] In my view, the answer to this question is "no". It is not reasonable to assume, without more, that Akio34 was at all times accessing the PlayPen website from the IP address associated with 835 Hickory Rd. Given the portability of computer devices, and the privacy issues at stake, I am of the view that the balance tips in favor of individual privacy over government intrusion in this case.

[53] Had there been evidence linking Akio34 to the specified IP address over the course of several days, as opposed to on one occasion, the balance may very well have tipped the other way. The same could be said if there had been some evidence that child pornography was accessed on February 28, 2015.

[54] Accordingly, after considering the ITO in the absence of erroneous paragraphs noted above, I find that there were no reasonable grounds to issue the warrant in this case. The search violated the Applicant's section 8 Charter right to be free from unreasonable search and seizure.

SECTION 24(2)

[55] The question remains as to whether the evidence obtained in violation of the Applicant's s. 8 Charter right should be excluded from the trial process. This requires an assessment of the impact of admitting the evidence on public confidence in the administration of justice, having regard to the seriousness of the Charter infringing conduct, its impact on the Charter-protected interest and societies interest in adjudicating cases on their merits (R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353).

[56] The Charter infringing conduct in this case was a search of the Applicant's home and the seizure of his personal computer. It was the direct result of misstatements contained within the ITO.

[57] Although unwarranted, the Crown submits that the officers were nevertheless acting in good faith pursuant to a warrant.

[58] In my view, the seriousness of the Charter infringing conduct in this case favors exclusion of the evidence. The unfounded claims that gave rise to the issuance of the warrant were serious. They were not the result of mere inadvertence or inexperience.

[59] As indicated in the ITO itself, Constable Johnson had considerable training and investigative experience in relation to Internet child exploitation. She had been assigned to the Cyber Crime Unit of the Criminal Investigations Division since November 2011 and had been the affiant of 138 Criminal Code search warrants in relation to Internet-based offences. It is difficult to imagine how someone with her experience and training could have "assumed", that each and every contact made with the PlayPen website by Akio34 came through the IP address associated with the Applicant's residence. If not a deliberate misstatement, it was certainly a matter of extreme carelessness. In either case, the officer cannot be said in my view to have been acting in good faith. Given the absence of any evidence that child pornography was accessed from the stated IP address on February 28, 2015, the impugned paragraphs were without any factual foundation.

[60] I find that the impact of the breach on the Applicant's Charter protected interest is serious and also weighs in favor of exclusion. As indicated by the Supreme Court in R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para 105 and 106:

105 "…it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

106 It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused than occurred in this case"

[61] I note that Morelli was not a case of deliberate misconduct on the part of the officer who swore the Information. It was a case of, at best, an improvidently and carelessly drafted ITO as is the case here.

[62] The third factor to be considered is society's interest in the adjudication of the case on its merits. The evidence obtained as a result of the search is reliable, and excluding it would effectively "gut" the Crown's case. The truth seeking function of a trial would be seriously undermined. This factor favors inclusion of the evidence.

[63] In balancing these factors, I remind myself that the seriousness of the offenses, and the reliability of the evidence obtained in this case, should not overwhelm the s. 24(2) analysis. To do so "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'" (para. 150). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences" (R v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para 40).

[64] As indicated in Grant at paragraph 84, "while the public has a heightened interest in seeing a determination on the merits where the offense charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high".

[65] The case law also supports the proposition that if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favor of admissibility: (R v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R v. Morelli, supra at paras. 98-112; R v. Ritchie, 2018 ONCA 918)

[66] In my view, the seriousness of the breach in this case and its impact on the rights of the Applicant are such that admitting the evidence flowing from the search would significantly undermine public confidence in the administration of justice. The search was of the Applicant's home and his personal computer located therein. It was based on information which the affiant knew or ought to have known was false and misleading.

CONCLUSION

[67] For these reasons, the evidence obtained pursuant to the search of the Applicant's residence will be excluded from the trial process.

Released: November 20, 2018

Signed: Justice G.L. Orsini