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 — (1) 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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 04 27 COURT FILE No.: Halton 19-1137

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RYAN PATTERSON

Before: Justice Ann-Marie Calsavara

Heard on: April 21st, 2021 Reasons for Judgment on: April 27th, 2021

Counsel: Harutyun Apel, counsel for the Crown Edmund Chan, counsel for the accused

CALSAVARA J.:

Reasons for Ruling 24(2)

[1] Mr. Patterson is charged with two counts of possession of child pornography. The Crown proceeded by Indictment. Mr. Patterson elected to have his trial in the Ontario Court of Justice. The defendant seeks the exclusion of an Ipod Touch, Samsung tablet, and Dell laptop [1] at trial. The police seized these items from 303 McNabb Crescent in Milton on March 27, 2019 during the execution of a search warrant.

[2] The Crown alleges that an examination of these computer devices revealed more than 2143 images and 61 videos of child pornography and wishes to adduce this evidence at trial to prove the offences.

[3] On April 15th, 2021, I issued a Ruling reported at 2021 ONCJ 233, providing my Reasons on the Garofoli application reviewing the warrant authorizing this search. I concluded that the warrant was overbroad and invalidly obtained as there were insufficient grounds to support the belief that the items listed in Appendix A—the things authorized to be searched for—will afford evidence of the offence of possession of child pornography as set out in Appendix B.

[4] A tip from the National Child Exploitation Coordination Centre (NCECC) prompted the investigation. From the tip, the police learned that a user of a smartphone messenger application, named KIK, uploaded an image containing child pornography from a specific IP address. The tip included the precise date and time of the upload which allowed the police to pinpoint the subscriber of the IP address by obtaining the subscriber’s name and address [2] through a Production Order. The offending upload occurred using the internet service two and half months prior to the search warrant, but MTO records queried by the affiant showed someone with the same name and address as the subscriber of that internet at the time of the upload was—at the time of the affiant’s MTO search—licenced with that address.

[5] As detailed in the Information to Obtain [ITO], the tip revealed: one single upload using the ‘KIK’ application, of one image of child pornography, on one occasion from that subscriber’s internet service which turned out to be [3] at 303 McNabb.

[6] The affiant defined ‘KIK’ as a smartphone messenger application that lets users connect with their friends the world around them through chat. Users can send text, pictures, videos and more all within the application. KIK is free to download and uses an existing Wi-Fi connection or data plan to send and receive messages. KIK Interactive is located in Ontario, Canada and as such is governed by Canadian law” [emphasis added].

[7] The affiant sought and was authorized to search for a list of broadly defined items, including, “(a)ny computer system, as defined by 342.1(2) of the Criminal Code, capable of accessing the internet. Including, but not limited to, desktop computers, laptops, netbook computers and cell phones …” and “(a)ny data storage device or media capable of holding data, as defined by 342.1(2) of the Criminal Code; including, but not limited to, DVDs, CDs, hard-drives, and memory sticks” [emphasis added].

[8] Despite this expansive Appendix A, no other information is supplied in the ITO as to whether or not this KIK application can be used by other devices or computer systems, aside from a smartphone. Similarly, there were no reasons articulated for the affiant’s belief that evidence of this upload from a smartphone device using this IP address would be found on any other type of computer device. The affiant does not articulate or provide sufficient evidence upon which one could infer that she had the belief, based on reasonable and probable grounds, that other devices would provide evidence in respect of the offence.

[9] The affiant did include the clause, “I know that digital data can be easily downloaded and transferred onto multiple external storage devices. Information that was originally created on a computer system may have also been transferred and saved onto an external storage device(s). Thus these devices may be required to fully analyze information created by the computer system”, and still to this date maintains that this clause informs her belief—of which I have more to say later in my 24(2) analysis. I held, however, that this clause without further explanation in the factual context of this case—one upload, one image, one occasion from a smarthphone—did not establish a link based on reasonable and probable grounds between the other computer devices and the offences. Reading the ITO as a whole did not fill this void. The same deficit applied to the affiant’s belief that any of the items listed in appendix A (aside from a smartphone) could show who the owner of the KIK account was or owner/user of the (smartphone) device used to access the KIK application. The general language used in the clauses supporting the officer’s belief that the items in Appendix A will afford evidence were not adapted or applied to the specific evidence in this case as set out in the ITO.

[10] As explained in my s.8 Ruling I did conclude, however, that the ITO would have supported a search warrant for 303 McNabb to seize items capable of accessing KIK—which from the face of the ITO, would be smartphones.

[11] The trial is scheduled to commence May 3rd, 2021. [4]

[12] Last week, in response to my ruling, the parties brought the matter back before me for a 24(2) hearing. On consent, the Crown filed the Forensic Analysis Report which listed the computer devices that were seized during the warrant and summarized the amount / type of prohibited content located on them. The Crown also called the affiant to provide evidence that other devices aside from a smartphone are capable of accessing the KIK application over Wi-Fi in an effort to show that the police had reasonable grounds despite the ITO’s deficiencies.

[13] The affiant testified that tablets, such as those made by Apple or Samsung, and Apple IPods are devices capable of accessing the KIK smartphone application. She furthermore reiterated what she testified to during the Garofoli hearing—that computer devices, broadly speaking, can access the KIK application with the use of an emulator. The defendant cross examined the affiant again at the 24(2) hearing, but did not undermine the affiant’s evidence that these other devices or computers can access the KIK application. He still argues, however, this evidence does not cure the deficiencies identified in the ITO. The defendant’s cross of the affiant centred more on why the affiant did not consider this information at the time she applied for the warrant and/or include this information in her ITO. His cross-examination revealed that the affiant misunderstood the constitutionally-mandated standard to articulate or provide sufficient evidence upon which one could infer that she had the belief, based on reasonable and probable grounds, that the broadly sought items listed in Appendix A would provide evidence in respect of the offence of Child Pornography as listed in Appendix B.

[14] During submissions the defendant argued that a 24(2) analysis should result in the exclusion of evidence citing the sanctity of the home and his high expectation of privacy in personal computer devices. Any breach touching upon these rights has a significant impact and points out that the rights of other family members, who were at home at the time of the search, were also impacted by the state intrusion. Additionally, Mr. Patterson asserts that although the affiant did not attempt to mislead the issuing Justice of the Peace, her conduct in drafting an incomplete ITO, was nonetheless negligent and a serious infringement.

[15] The Crown asserts that the defendant has failed to demonstrate that the admission of the evidence would bring the administration of justice into disrepute. He argues that the evidence at the 24(2) hearing addressed the overbreadth finding and showed that the evidence seized was discoverable, because grounds existed to support the issuance of the warrant even though the ITO fell short in outlining them. Additionally, he says, the police did not try to mislead and were not reckless. The police sought and obtained prior judicial authorization. These two circumstances place the Charter infringing conduct on the lower end of the spectrum. The Crown acknowledges that the impact of the breach favours exclusion given the privacy interests it affected, but says this should not overwhelm the analysis, given the minimal level of police misconduct and society’s interest in the adjudication of this case on its merits.

Framework for the 24(2) Grant Analysis

[16] Where evidence is obtained in a manner that infringes a right guaranteed by the Charter, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". The onus falls on the defendant to establish, on a balance of probabilities, that admission of the evidence in the proceedings would bring the administration of justice into disrepute. The purpose of s. 24(2) of the Charter is to maintain the repute of the administration of justice, in the long-term sense of maintaining the integrity of, and the public's confidence in, the justice system: R. v. Grant, 2009 SCC 32; R. v. McGuffie, 2016 ONCA 365.

[17] The focus must be on not just this individual case, but also overall how the admission of evidence can impact, long-term, on the administration of justice. The inquiry’s aim is not to punish the police for bad conduct or reward a given accused, but is forward looking and seeks to answer whether a reasonable person, knowledgeable of all of the circumstances, would conclude that the admission of the evidence in the proceedings would bring the administration of justice into disrepute. There is a long-term negative impact on the administration of justice if courts routinely accept and use evidence gathered in violation of the Charter; however, the exclusion of evidence can also bring the administration of justice into disrepute.

[18] In McGuffie, Doherty J.A., explained how to approach the Grant analysis to further this purpose:

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third [page660] inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, at paras. 33-34.

[63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see, e.g., Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see, e.g., R. v. Côté, 2011 SCC 46, at paras. 81-89; R. v. Morelli, 2010 SCC 8, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140.

[19] In this case, given the s. 8 Charter Ruling, there can be no real dispute that the evidence was “obtained in a manner than infringed or denied” the accused’s rights under the Charter.

[20] Before turning to the branches of the Grant inquiry, I wish to set out some further principles relating to the concept of ‘discoverability’ that are germane to the analysis in this case and which in my view are ultimately instrumental in defeating the accused’s ability to meet his burden given all the circumstances of this case.

[21] When pressed the defence took no position on the relevancy of discoverability and elected to make no submissions on the point—which I assume only reflects his position that the evidence was not discoverable. The crown relied on ‘discoverability’ in his position on the first branch, the seriousness of the state conduct; however, this is too narrow of an approach, in my view.

[22] The Supreme Court in Grant instructed that discoverability although not determinative remains alive in the new 24(2) analysis, on the inquiry of the actual impact of the breach on the protected interests of the accused: para122. The Supreme Court expanded upon this analysis in R. v. Cote, 2011 SCC 46:

68 R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, is a good example of how discoverability can, in simple language, cut both ways. There, the police searched a locker. One officer said that the idea of getting a warrant did not even cross his mind, while another said he did not consider obtaining a warrant because he thought he lacked sufficient grounds. The Court endorsed the conclusion of the trial judge that the officer who failed even to consider getting a warrant had demonstrated a "casual attitude" towards the appellant's Charter rights and that the other officer's decision to proceed with the search because he thought he did not have sufficient grounds to obtain a warrant suggested a blatant disregard for the appellant's rights which was fatal to a claim of good faith: paras. 60-61. On the other hand, this Court acknowledged that the officer probably did in fact have sufficient grounds to obtain a warrant and that the existence in fact of reasonable and probable grounds to conduct the search has on many occasions been considered as lessening the seriousness of the violation. In the end, the Court accepted that the trial judge had reasonably concluded that the breach was serious and that his assessment should not have been interfered with on appeal: see generally paras. 52-56.

70 While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry. I will describe how, in appropriate cases, discoverability may be relevant to the first two branches of the Grant analysis.

71 I turn to the first branch of the Grant test which is concerned with the seriousness of the Charter-infringing state conduct. If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. As in Buhay, a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. On the other hand, the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.

72 We come now to the effect of discoverability on the second branch of the Grant test - the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual's reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual's reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused's privacy and dignity interests protected by the Charter.

73 This is not to say, however, that in such circumstances there is no infringement of an accused's privacy interests. A reasonable expectation of privacy protected under s. 8 of the Charter includes not only that proper grounds exist but also the requirement of prior judicial authorization. Thus the absence of a warrant when one was legally required constitutes an infringement of an accused's privacy. The intrusiveness of such an unauthorized search will be assessed according to the level of privacy that could have reasonably been expected in the given set of circumstances. The greater the expectation of privacy, the more intrusive the unauthorized search will have been. The seriousness of the impact on the accused's Charter-protected interests will not always mirror the seriousness of the breach, i.e. the Charter-infringing state conduct. For instance, where the police acted in good faith in obtaining a warrant that was found on review not to disclose reasonable and probable grounds to believe that a crime had been committed and that there was evidence to be found at the place of the search, the seriousness of the Charter-infringing state conduct is reduced but the impact of the search on the accused's Charter-protected interests is greater because the search could not have occurred legally.

74 The lawful discoverability of evidence may thus be a relevant consideration when a court must determine whether to exclude evidence pursuant to s. 24(2) of the Charter. When relevant, courts should assess the effect of the discoverability of the evidence under the first and second Grant lines of inquiry in light of all of the circumstances.

[23] The distinction is important and not purely academic here as, I will explain, discoverability is relevant to both the first two branches of the Grant analysis.

[24] Had the affiant included in the ITO the evidence that computer systems and other devices aside from smartphones are capable of accessing the KIK application over WiFi, the warrant with the Appendix as it is would have been validly issued.

[25] The starting point is that the ITO as written supported the issuance of the search warrant for the 303 McNab residence, but the grounds were not laid out to support the seizure of any device aside from a smartphone. All that was needed was an explanation of the types of devices that could access the KIK application given the nature of the tip and the way KIK was defined. Once there was evidence to support the belief that various types of computer devices inside 303 McNabb could have accessed the KIK application and hence was responsible for the upload, it would be reasonable –and constitutionally sound – for the police to broaden the scope of the search to accommodate all the devices within the home.

[26] Although that may be a given in many warrants, particularly those related to child pornography investigations, it was not on the particular facts of this case; and the police must be more careful in turning their minds to the applicability of routine, broad based lists of items to be searched to the evidence in a given case.

[27] Justice Di Luca comprehensively explains this type of shortcoming as illustrated in his review of a warrant in a drug case, in R. v. Otto, 2019 ONSC 2514:

[100] There may be cases where it is obvious that any and all electronic devices seized will contain evidence of the offence in question. There may also be cases where the police only have grounds to search a particular device and no others. However, there may also be cases where police have grounds to believe that evidence will exist on a device, but two such devices are seized and the police are unable in advance of the search of the devices to determine which device contains the evidence, though they believe that evidence will be on one or the other. In such a case, the police will likely have sufficient grounds to search both devices as the standard for the search only requires reasonable probability that evidence will be found. If the standard required that police believed on a balance of probabilities that evidence would be found in each device, they would be unable to get a warrant for either device. This nuance is well captured in Hutchison’s Search Warrant Manual 2015: A Guide to Legal and Practical Issues Associated with Judicial Pre-Authorization of Investigative Techniques, 2014 Thomson Reuters Canada Limited, where the learned author states at p. 59: The importance of the exact nature of this standard can be seen in the problem of simultaneous searches. There are circumstances where investigators have grounds to believe that an item they wish to seize may be in one of a number of different locations. For example, suppose an investigator has learned that the owner of a business keeps a secret set of records with the true affairs of the company in a notebook computer which he or she moves between two business locations and the home, but nowhere else. The investigator may wish (or more likely, need) to obtain three different search warrants to search simultaneously these three separate locations for the notebook. If the requirement of reasonable grounds means that the investigator had to be at least 51% satisfied that the notebook was at one of these locations as opposed to the others, the investigator would probably not be able to get even one warrant, let alone successive warrants, as there is simply no evidence suggesting that it is any more likely that the secret records are at one location over the other. However, as noted, the weight of the authorities to date states that reasonable and probable grounds does not require this type of certainty or probability.

[104] The difficulty in this case is that on the basis of the ITO, there is no way for the issuing justice to assess why the affiant’s belief that all the devices contain evidence of the offences under investigation was objectively reasonable. I accept that once police establish grounds to believe that a cell phone or a computer belonging to a target will contain evidence of a criminal offence, it may not take much more to establish that all cell phones or all computers found at a certain location will afford evidence, but that is a step that should be taken in order to maintain the constitutionality of the search. Similarly, the police should be required to provide a basis for extending that search into other electronic devices, such as USB keys and portable hard drives. Again, it may not take much to establish the connection, but there should be something.

[28] Although in a different context, Di Luca J.’s dissection of the issue in Otto is apt here.

[29] With these findings and principles in mind, I turn to the application of the Grant inquiry to the facts in this case.

(i) the seriousness of the Charter-infringing state conduct

[30] The police conduct in this case was not flagrant or deliberate. “Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen.” R. v. Rocha, 2012 ONCA 707 para 28. Moreover, the affiant did not obtain the warrant through the use of false or misleading information. However, the absence of bad faith does not equate to good faith. The officer was careless in meeting Charter standards. This breach is not due to indifference or intentional conduct but, as the evidence demonstrates, it is founded on the officer’s misunderstanding of the constitutionally mandated requirement to articulate how items sought will afford evidence.

[31] It was clear during the officer’s evidence that she theorized that those involved in possessing child pornography are collectors and believed grounds existed for the expansive Appendix A on that basis—when here there was only evidence of one picture uploaded on one occasion. There is an absence of other evidence to base this theory on, such as, evidence capable of inferring the existence of multiple images or multiple incidents or some other reason to believe the uploader is a collector, all of which might have been capable of supporting the grounds to believe those items will afford evidence on the officer’s theory. She testified in her experience, in child pornography-related investigations, the police commonly find child pornography on more than one device and that it is ‘common’ for offenders to transfer and store images. This could not support the issuance of the warrant as requested on the evidence in this case, and was likely not included in the ITO for good reason.

[32] Overall the officer’s explanation for the failure to include the evidence in the ITO about how other computer devices can access KIK – again keeping in mind the evidence of a one-time upload -- shows she failed to appreciate the constitutional requirement that the issuing justice must be put in the position to be able to independently assess the affiant’s belief that the items sought will afford evidence. This places the police conduct as approaching moderate along the spectrum of state culpability even though I find the affiant was well-intentioned and sincere.

[33] That said, given the affiant did apply for a warrant and one that was supportable but for overbreadth and one that could have issued as authorized if she explained how non smartphone devices could access KIK, the seriousness of the state misconduct is considerably attenuated: Cote, R. v. P.W., 2020 ONCA 301 para 28-29, R. v. O’Brien, 2020 ONSC 6755 para 21-22.

[34] On balance, this branch favours admission of the evidence.

(ii) the impact of the breach on the accused’s Charter-protected interests

[35] As rightly pointed out by the defendant, two of the areas where an individual's right to privacy is paramount is in their home and in their electronic devices. Computers often contain intimate correspondence. They contain the details of one’s financial, medical, and personal situations. They also reveal one’s specific interests, likes, and propensities, recording in the browsing history and cache files the information one seeks out and reads, watches, or listens to on the Internet: R. v. Morelli, 2010 SCC 8 para 105; R. v. Adler, 2020 ONCA 246 para. 33.

[36] Undoubtedly, an unjustified intrusion into these Charter protected interests would heavily favour the exclusion of evidence.

[37] Nonetheless what is different here is the limited extent the breach impacted upon these highly protected rights. The intrusiveness is mitigated by the fact that the police on the basis of the information they did include in the ITO had grounds to search the defendant’s home and further had the grounds—although not outlined in the ITO at the time—to seize all the devices they did.

[38] The impact was blunted somewhat by discoverability: Cote para 72-73. Although a discoverability argument was recently rejected by the Ontario Court of Appeal in R. v. West, a case also involving a KIK upload and a NCECC tip but that is because the police did not have the grounds for the warrant at all. Importantly the police, unlike here, did not have the precise IP address that was used to upload the child pornography: R. v. West, 2020 ONSC 3150, para 38-39. In discounting the applicability of discoverability in that case for that reason, the Court did accept that discoverability could diminish the impact on the heavily guarded privacy rights of one’s home and electronic devices, noting, “[t]he seriousness of a breach resulting from an unreasonable search will reflect the level of privacy to which the individual was entitled to reasonably expect in the circumstances. Pursuant to the concept of discoverability, however, the impact of an illegal search on an individual's privacy and dignity will be lessened where the police could have demonstrated to a judicial officer that they had sufficient grounds to conduct a valid search” [cites omitted]: West, para 34.

[39] The warrant, moreover, included terms and conditions which limited the search of these devices. Not significantly, but this also somewhat mitigated the intrusion into Mr. Patterson’s sphere of privacy.

[40] On balance, I find this line of inquiry marginally supports exclusion.

(iii) society’s interest in the adjudication of the case on the merits

[41] Society undoubtedly has an interest in an adjudication of these serious charges on the merits. The evidence found on the devices is real and reliable. Its admission will enhance the truth-seeking function of the trial.

[42] As well, the real and cascading effect of child pornography is well documented. Child pornography, including a ‘mere possessory’ offence continues to contribute profoundly to the sexual exploitation of children: see R. v. Inksetter, 2018 ONCA 474 at para 22.

[43] The loss of this real evidence would put an end to the prosecution.

[44] The circumstances favour a societal interest in the case proceeding on its merits.

[45] In summary, the balancing of the three branches of the Grant test leads me to the conclusion that the evidence pertaining to the seized computer devices from 303 McNabb Crescent must be admitted.

[46] The police conduct was non-intentional. While not minor or inadvertent the officer’s action were far from flagrant. The affiant did not mislead the Justice of the Peace or misstate the evidence. The affiant sought and was granted judicial authorization and although the warrant was overbroad, the police had the grounds for its issuance. The Charter protected rights engaged by the search involve areas which one has an exceptional high expectation of privacy over – the home and personal electronic devices. The impact of the breach on these highly regarded rights though is diminished by the fact that the warrant would have been valid to search this residence but for the overbreadth issue and secondly because the police could have demonstrated to a judicial officer that they had sufficient grounds for the warrant they did obtain. So while this second branch supports the exclusion of the evidence, it does so just marginally. Finally, the evidence from the electronic devices is real and essential to a prosecution on the merits of the case.

[47] Consequently, exclusion viewed reasonably and from a long-term perspective, would have a negative effect on the repute of the administration of justice.

[48] Accordingly, the defendant’s application to exclude evidence is dismissed.

Released: April 27th, 2021 Signed: Justice A. Calsavara

Notes

[1] Three other computer devices were seized (another IPod, an HP Laptop, and a Samsung phone), however they did not contain images or videos of child pornography.

[2] In my s. 8 ruling, in error, I referred to the subscriber as ‘Ryan Patterson’ in multiple passages instead of ‘Raymond Patterson’ – however this had no bearing on my analysis. An MTO search by the affiant of the subscriber’s name revealed a driver’s licence for a person with the same name (Raymond Patterson) and address.

[3] The police obtained a Production Order to obtain from the Internet Provider the subscriber of the IP at the date/time of the offending upload to the KIK account.

[4] A day after the 24(2) hearing, the OCJ issued the following notice: COVID-19 Pandemic – Update re Criminal Proceedings: adjournment of out-of-custody trials and preliminary inquiries between April 26 and May 7, 2021 (April 21, 2021) In light of the recent increase in COVID-19 cases and its impact on hospital resources, and in order to reduce the number of people (including parties, counsel and court staff) who must leave their home to attend court proceedings, the Ontario Court of Justice is suspending all criminal trials and preliminary inquiries involving out-of-custody accused persons scheduled between Monday April 26, 2021 and Friday May 7, 2021, subject to a judge seized with a continuing matter ordering otherwise. This applies to both in-person and virtual trials and preliminary inquiries. Other criminal matters involving out of custody accused persons, such as case management appearances, pleas/resolutions and judicial pre-trials, may proceed as scheduled. All criminal matters involving accused persons who are in custody, including trials and preliminary inquiries, may proceed as scheduled. The health and safety of all court users remains a top priority for the Ontario Court of Justice as it continues to provide meaningful access to justice despite the challenges of the COVID-19 pandemic. For more information, see Chief Justice Maisonneuve’s Message re COVID-19 (Updated April 8, 2021)