Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 04 30 COURT FILE No.: BRAMPTON 3111-998-19-1246

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ROBERT STACK

Before: Justice A. R. Mackay

Heard on: December 7 and 8, 2020 Reasons for Judgment released on: April 30, 2021

Counsel: Maria Stevens, counsel for the Crown The defendant Robert Stack, on his own behalf Jennifer Myers, Amicus Curiae

MACKAY J.

REVIEW OF WARRANT

Overview

[1] Mr. Stack was arrested on February 5, 2019 and charged with communicating with a person under the age of 16 for the purpose of facilitating sexual assault and sexual interference, failure to comply with recognizance, and failure to comply with undertaking. The charges arise as a result of an investigation by police of adult men using the dating app Grindr to lure underage boys to have sexual relations.

[2] Cst. Caroline Losier posed as “Justin”, a14-year-old boy on the app. In January 2019, Cst. Losier received a message from “Mathew51yo” (“Mathew”) who asked “Justin” (“Justin”) if he was interested in meeting “older”. Justin replied that he was 14 years old and the two exchanged several messages over the course of a month It was clear that Mathew wanted to engage in oral sex with Justin if he was willing. Mathew sent a photograph of himself in only his underwear and, at Mathew’s request, Justin sent Mathew a picture of his underwear. Ultimately, they agreed to meet on February 5, 2019 near 210 Steeles Avenue in Brampton. Cst. Faira, another undercover officer posing as Justin went to the meeting point at the time discussed and the Applicant, Mr. Stack, walked near him. Upon arrest, Mr. Stack was found to be in possession of a Samsung tablet. After a search warrant was issued, a forensic analysis uncovered the messages between Justin and Mathew and the pictures they exchanged.

[3] On the day of his arrest, DC Imber took a statement from Mr. Stack. A transcript of that statement is contained in the application record. The affiant attributes contents of that statement to Mr. Stack in paragraph 10 of the Information to Obtain (“ITO”).

[4] Mr. Stack, with the assistance of Ms. Myers acting as amicus, has brought a facial and sub-facial Charter attack on the search warrant. Ms. Myers first made an application seeking leave to cross-examine the affiant of the ITO. In an oral ruling I allowed Ms. Myers to cross-examine the affiant on two issues; (i) her characterization of the Grindr App, and (ii) the request to search for items in cloud based storage in circumstances where the affiant did not have evidence that Mr. Stack had such storage.

[5] Ms. Myers submitted that there were a number of misleading statements in the ITO that should be excised from the ITO and argued that once these items are excised the warrant could not have been issued. Counsel also submitted that the misleading statements combined with the overbreadth of the request to search cloud based storage amounted to subverting the prior authorization process. Turning first to the misleading statements.

Misleading Statements

[6] The following are the areas in the ITO which Ms. Myers argues were false or misleading.

The Nature of the Grindr App

[7] The affiant asserts knowledge of the website “Grindr” and characterizes the site as one where “individuals seek much younger partners.”

[8] In cross-examination, Ms. Myers produced screenshots of the Grindr website for Cst. Losier to comment on. The screenshots show that the website advertises as follows: “The world’s largest social networking app for Gay, bi, trans and queer people.”

[9] The website sets out its mission which include a number of lofty goals, stating: “Grindr for equality is an ever-evolving mission to help LGBTQ people around the globe. Our wide-ranging initiatives impact communities large and small on issues that matter to them the most: safety, sexual health, advocacy, and more.”

[10] Cst. Losier stated that she was not aware of Grindr’s stated mission and emphasized that her experience was on the app itself. In her experience, older men are looking to hook up with younger males. It is an aggressive place where individuals get right to their agenda, which is to have sexual encounters. She had never come across a female on the site. Cst. Losier agreed that it could be a place where transgender people seek a partner. She agreed that it could be that people go on the site to seek friendships. Cst. Losier did not think it was a place where gay or queer people “came out” or publicly stated their sexual orientation.

[11] It was Cst. Losier’s experience as an undercover officer that when she posed as a 14-year-old boy on the app she received responses from older men. She disagreed that she mischaracterized the Grindr App. She conceded that while the Grindr website may portray itself as the largest networking site for the LGBTQ community, in practice it is much different, it is a negative app. She did not think to put in the ITO that her experience on the app is limited to searching for men who may be committing criminal acts.

[12] Cst. Losier did not put in the ITO the meaning of the word “Twink” but agreed in the future she would. “Twink” means a “young, attractive gay man with a slim boyish appearance.” Mr. Stack’s profile implied he was seeking “Twink” males.

[13] Given it was Cst. Losier’s experience as an undercover police officer that the site is one in which older men look for much younger partners, I do not believe that she was intentionally providing misleading information. However, she could have added that the website states that it can be used by the LGBTQ community as a dating site. In addition, she could have added that Grindr is an app where some individuals seek much younger partners. Her grounds do not rely on her characterization of the Grindr app. The description of the app forms part of the background of her investigation (ITO, page 8). However, I would amplify the ITO to include the more fulsome description of the Grindr app as set out on their website.

The Characterization of “Justin” as a 14-year-old boy

[14] Ms. Myers submits that it was misleading for the officer to refer to simply “Justin”, a 14-year-old boy, in the ITO rather than stating that “Justin” was an undercover officer. The officer sets out in the ITO that she posed as Justin, a 14-year-old boy when first setting out the background to the investigation (ITO, page 8). Twice in the same paragraph she refers to the fact that “Justin” was, in fact, her posing as a 14-year-old boy. Again, at page 11, she states she was posing as a 14-year-old boy. I do not find the officer’s reference to Justin as a 14-year-old boy misleading. It would be clear to the issuing justice that Justin was an undercover officer.

[15] Attached to the ITO, under Appendix E, is Mathew’s profile and Justin’s profile. Justin’s profile does not have any details, rather it shows what appears to be a male on a skateboard in mid-air. The picture is taken of the individual’s back. While defence counsel submitted that adults skateboard, the image in my mind represents a young person.

[16] On January 25, Cst. Losier sent Mathew a picture of an undercover officer with a hat on facing backwards wearing sunglasses. The male appears to be much older than 14. Ms. Myers submitted that emphasis should have placed on the fact that this picture was not that of a 14-year-old boy. After reviewing the ITO and seeing the copies of the chats between the undercover officer and Mr. Stack, which are attached to the ITO. I am of the view that it would be clear to the issuing justice that Justin was in fact an undercover officer posing as a 14-year-old boy.

Cst. Losier reference to portions of the Applicant’s statement to police

[17] Counsel submitted that Cst. Losier misrepresented the contents of Mr. Stack’s statement to Detective Imber. Context of what is said is always important. The fact that he was awaiting sentencing for similar offences was an important piece of context that should be kept in mind when reviewing the statement.

[18] In paragraph 10 of the ITO, the affiant sets out, from (a) to (z), a summary of what Mr. Stack said in his interview on the day of his arrest. After having watched the video in its entirety, it is evident to me that some of the statements purported to be made by Mr. Stack were more of an acknowledgement that he was following what Detective Imber was saying as opposed to a confession. This seemed to be true for point (m) “He agrees that Justin was 14 at the time of the conversations”, and (o) that he recognizes he was speaking to a 14-year-old since early January. I find the same to be true of (s), that he agrees he was willing to participate in the sex acts that were discussed.

[19] With respect to point (w), “he understands that it was wrong what he did”. It is unclear if he is talking about the charges before the court or the charge he was awaiting sentencing on. With respect to (z), “if the young person would be here now he would tell him he is sorry, and whether he knows it or not that he’s done nothing wrong”, this passage may have referred to the teenager he had sexual relations with from the previous charge.

[20] I do not think Cst. Losier deliberately tried to mislead the issuing justice but it would have been prudent of the officer to review the video statement to determine whether in fact Mr. Stack was confessing. I will excise the above sub-paragraphs 10 (m), (o), (s), (w) and (z).

Overreaching

Searching iCloud Storage

[21] Cst. Losier sought to search not just data on Mr. Stack’s device but also to search data on a remote storage location(s) e.g.: Microsoft SkyDrive. Ms. Myers argued that making a request to search the cloud based storage was overreaching and not based on reasonable and probable grounds. The officer had no reason to believe that the applicant had cloud based storage.

[22] Cst. Losier set out her grounds for wanting to search remote storage areas as follows. In Appendix F she indicated that it is common for computer systems to use remote storage and that applications on the Internet exist that can store files offsite but are accessible from and available to the computer within the meaning of section 487(2.1) and (2.2.) of the Criminal Code. The affiant then states that if grounds exists to believe that there are such files available to the computer, the police wish to seize it and analyze it as well. In Appendix A, the affiant indicates, in the terms and conditions, that as part of the analysis of the data, police would want to locate “images” on the Samsung tablet or “on remote storage locations(s) available to the tablet, e.g. Microsoft SkyDrive” which would relate to the investigation. Further, the police would locate and analyze data on remote storage location(s) e.g.: Microsoft SkyDrive that provides evidence as to the use, ownership, access and configuration of the listed Samsung device.

[23] I tend to agree that most devices and most applications use cloud based storage. The question is whether permitting police to search remote storage locations when there is no specific information that it was employed by an accused is overreaching. A review of the principles concerning the searching of computers will assist.

Computer Searches

[24] Section 8 of the Charter protects our privacy and this expectation encompasses not only property interests but personal and informational privacy too. As Bastarache J. observed in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 16:

This Court has adopted a liberal approach to the protection of privacy. This protection extends not only to our homes and intimately personal items, but to information which we choose ... to keep confidential.

[25] The courts have recognized that computer searches are invasive and “that computers are the repository of immeasurable and infinitely variable chunks of highly private and confidential personal information — often the very epitome of the type of "biographical core" information sought to be protected by the privacy expectations underlying s. 8”: R. v. Jones, 2011 ONCA 632 at para 37.

[26] The Supreme Court of Canada has held that in order to search a computer, the police must obtain a warrant that specifically authorizes the examination of its contents. The police must satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for: R. v. Vu, 2013 SCC 60 at paras. 3, 48, 49.

[27] In R. v. Vu the Supreme Court also considered whether warrants must, as a rule, set out detailed conditions or search protocols under which the search must be carried out. While Justice Cromwell, did not find that special direction to police be considered when conducting searches of computers, he did not believe they were constitutionally required: at paras. 25 and 53. The Court reasoned that the manner of search is generally reviewed after the fact with evidence and argument from both sides. Justice Cromwell held that such a forum is better suited to developing new rules about how searches are to be conducted than is the ex parte procedure by which warrants are issued. The case law has developed and made it clear that police are to limit their searches only in relation to the crime set out in their ITO and not for evidence of other criminal behavior, such as child pornography, when investigating a fraud case. See for example, R. c. Boudreau-Fontaine, 2010 QCCA 1108 in Descôteaux c. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 889-92; R. v. Vu, 2013 SCC 60 at para. 55.

[28] The difficulty of imposing search protocols was set out by Justice Cromwell at para. 57:

………. requiring search protocols to be imposed as a general rule in advance of the search would likely add significant complexity and practical difficulty. In particular, the ease with which individuals can hide documents on a computer will often make it difficult to predict where police will need to look to find the evidence they are searching for. For example, an authorizing justice's decision to limit a search for child pornography to image files may cause police to miss child pornography that is stored as a picture in a Word document. In short, attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process. These problems are magnified by rapid and constant technological change: R. v. Vu, at para 57.

[29] Given the development of the caselaw with respect to computers, police are deemed to know that a warrant in hand does not give them carte blanche authority to scour the devices indiscriminately. The manner of their search must be reasonable: R. v. Vu, at para 61. Police are required to use available tools to tailor their authorized searches.

[30] Justice Cromwell, however, did not foreclose the possibility that the changes in technology and greater understanding of computer searches may make it appropriate in the future to impose search protocols in some circumstances: R. v. Vu, at para 62.

[31] It is commonplace for people to store their information not just on their personal device but also on a cloud based storage. Most applications also store any participant’s activity on the app in their cloud based storage. Counsel has not provided me with any cases which would suggest that police who are searching a computer for evidence of a specific crime could not search cloud based storage for evidence connecting the individual to the crime they are investigating.

[32] Counsel did refer me to R. v. Jones, 2011 ONCA 632. However, in that case the Court held that the right to search computer contents for evidence of fraud did not give the police the power to search for child pornography without a second warrant specific to that offence. There was no urgency in that case and the second warrant could easily have been obtained.

[33] In this case the evidence the officers seized was on the Samsung tablet. I do not believe police in fact searched the cloud in this particular case. Had they done so, a closer review of where they had gone in their search would have been warranted.

The Use of Boilerplate Paragraphs

[34] Ms. Myers submitted that the affiant employed many boilerplate paragraphs that were essentially pasted into the ITO without any tailoring for this specific case. The ITO was in support of the Samsung tablet that was seized from Mr. Stack. It was not in relation to a cell phone or computer. However, portions of the ITO referred to “computer system”, USB drives and mobile devices. Appendix F did not once refer to the Samsung tablet and instead referred to other devices. In cross-examination, Cst. Losier testified that tablets are considered computers. Some boilerplate language was also used in Appendix A, it referred to other devices and storage in the cloud. There was nothing in the use of the boilerplate paragraphs that would trick the reader. The use of boilerplate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. R. v. Araujo, 2000 SCC 65 at para 47. The use of boilerplate material in an ITO should be avoided where possible but it does not affect in this case, the sufficiency of the warrant.

[35] Turning now to consider whether the warrant should have been issued and the law that I must apply in reaching this decision.

The Law

[36] A search warrant authorization is presumptively valid: R. v. Sadikov, 2014 ONCA 72, at para. 83; R. v. Collins, [1989] O.J. No. 488 (Ont. C.A.); R. v. Crevier, 2015 ONCA 619, para. 66; R. v. Lising, 2005 SCC 66, at para. 30; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549.

[37] The Applicant bears the burden of establishing on a balance of probabilities that the search in this case violated his Charter rights and that any evidence seized as a result should be excluded pursuant to s. 24(2).

[38] The test for review of a search warrant was laid out by Justice Fish in R. v. Morelli, 2010 SCC 8, at para. 40:

In reviewing the sufficiency of a warrant application, however, "the test is 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 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient 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.

[39] In order to establish reasonable grounds for a search, the appropriate standard is one of "reasonable probability". It does not require proof on the "balance of probabilities", much less "proof beyond a reasonable doubt" or a "prima facie case": R. v. Debot, at para. 54; R. v. Morelli, at para. 127; R. v. Sadikov, 2014 ONCA 72, para. 81.

[40] As Rosenberg J.A. held in R. v. Jacobson, [2006] O.J. No. 1527 (Ont. C.A.), at para. 22: "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued."

[41] In deciding whether or not there are reasonable and probable grounds for issuing a search warrant, the reviewing court must be satisfied that it was reasonable for the issuing justice to believe that the evidence will be on the premises at the time of the search not that there is merely suspicion that evidence may still exist: R. v. Campbell, [2005] O.J. No. 2369 (Ont. S.C.J.), at paras. 41 to 46. Sadikov, at para. 81, R. v. Stevens, 2015 ONSC 436, at para. 54.

[42] The central issue I must decide is whether the issuing justice had sufficient evidence before him or her as a basis to issue the warrant. I am not entitled to conduct a de novo review of the evidentiary basis for the warrant. R. v. Victoria, 2018 ONCA 69, at para. 96; R. v. Sadikov, supra, at paras. 83-84; R. v. Araujo, supra, at para 54; R. v. Morelli, 2010 SCC 8 at para 40.

[43] The question is not whether the reviewing court would itself have issued the warrant, rather, I must assess whether the record that was before the issuing justice, as amplified on review, with erroneous information excised, could have supported the issuance of the warrant.

[44] The warrant should only be set aside where the court is satisfied that there was no basis upon which the warrant could have been issued: R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 68.

[45] A sub-facial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The accuracy of the ITO is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted: R. v. Paryniuk, 2017 ONCA 87, at para 77. Although affiants may not ignore signs that fellow officers may be misleading them, or omitting material information, in the absence of some indication that something is amiss, affiants do not need to conduct their own investigation: World Bank Group v. Wallace, 2016 SCC 15, at para. 123. In the case at bar Cst. Losier was the undercover operator and the affiant, however, another detective interviewed Mr. Stack after his arrest. This, in part, likely led to some of the errors in Cst. Losier’s characterization of Mr. Stack’s statement.

[46] After allowing amplification with respect to the nature of the Grindr app, and excising the misleading information referred to above, I am of the view that it was reasonable for the issuing justice to believe that evidence with respect to the offences referred to in the ITO would be found on Mr. Stack’s Samsung tablet. The issuing justice was given a summary of the allegations but was also provided with the alleged chats between the defendant and the undercover officer.

Subversion of the pre-authorization process

[47] Turning to the final attack on the search warrant. Ms. Myers submitted that throughout the ITO there was an overstatement of the grounds and an overreaching of places to search, specifically cloud based storage. Did this amount to a subversion of the pre-authorization process?

[48] Where the reviewing judge finds that the warrant could properly have issued a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority. Subversion, in plain terms, means an abuse of the pre-authorization process by non-disclosure or misleading disclosure: R. v. Paryniuk, 2017 ONCA 87 at para 74. In order to find subversion, the reviewing judge must find that the conduct undermined, corrupted, weakened, destroyed or disrupted the process. The Court of Appeal has described it as conduct amounting to the level of an abuse of process: R. v. Phan, supra at paras 54–56; R. v. Paryniuk, supra at paras. 69–70, 74–75.

[49] Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal refused, (2011), [2010] S.C.C.A. No. 371, at para. 40. In at least one brief endorsement, this court has described the conduct necessary to engage this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v. Vivar, 2009 ONCA 433, at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.; R. v. Paryniuk, 2017 ONCA 87 at para. 62.

Conclusion

[50] After reviewing the evidence called at this hearing and the ITO, I am not persuaded that the affiant willfully attempted to mislead the issuing justice. There were some errors but, overall, the warrant set out full disclosure of the case the police had against Mr. Stack. The conduct of the police in no way could be said to have undermined or corrupted the process.

[51] I have made the determination that the warrant should have issued based on my assessment of all the facts on the same "practical, non-technical, common sense basis that was applied by the authorizing justice.": Sadikov, para. 82.

Released: April 30, 2021 Signed: Justice A.R. Mackay