COURT FILE No.: 0611-998-19-1171 DATE: November 2, 2021

ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

simon williams

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on September 23, 2021 Reasons released on November 2, 2021

Counsel: Mr. Chris Presswood ........................................................................................... for the Crown Ms. Alexandra Mamo...................................................................................... for the Defendant

SCHWARZL, J.:

CHARTER RULING

[1] This matter is subject to publication bans made pursuant to section 517(2) and 486(4) of the Criminal Code.

1.0: INTRODUCTION

[1] The defendant, Simon Williams, stands trial for charges of possessing child pornography on May 6, 2019 and on September 5, 2019 contrary to section 164.1(4) of the Criminal Code.

[2] The triable issues revolve around allegations that the defendant’s right to be free from unreasonable searches and seizures as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms (Charter) were violated by actions of the investigating officer, Det. Cst. Lee (Lee). The defence makes two core allegations. One is that the search warrants are not valid due to the Informations to Obtain (ITOs) being misleading. The other is that they allege that Lee failed to file two Reports to a Justice (RTJ) as soon as practicable. They submit that if I find that the defendant’s constitutional rights were violated in any manner, the evidence gathered in execution of two search warrants ought to be excluded.

[3] Both parties agree that if I exclude the evidence, both charges must be dismissed. They also agree that if I do not exclude the evidence, verdicts of guilty must be entered on each charge.

2.0: AGREED FACTS

[4] On May 8, 2019 Google observed that a single image of child pornography had been uploaded to Google on May 6, 2019 by a user named “Simon Williams.” Google preserved the image as well as information about the associated account. Google blocked the image from being accessed by anyone.

[5] Google then sent a report to the National Centre for Missing and Exploited Children (NCMEC). That report noted that the image was uploaded from an Internet Protocol (IP) address in Orangeville and the Internet Service Provider (ISP) was Bell Canada.

[6] The NCMEC report was forwarded to the OPP and on June 26, 2019 Lee was assigned to investigate. On reading the report and viewing the image, Lee believed that the image met the definition of child pornography. That same day, Lee sent a request to Bell Canada regarding the IP address associated with the image. Bell Canada confirmed that they were the ISP and that the IP address on May 6, 2019 and the associated account were in Shelburne, just north of Orangeville.

[7] On July 16, 2019 Lee applied to a Justice of the Peace and received a Production Order directing Bell Canada to disclose the account holder information for the IP address as it was on May 6, 2019 at the time the image was uploaded (Exhibit A-1). Bell Canada informed Lee that the IP address belonged to Denise Williams of 126 James Street North, Shelburne. Background checks revealed that Denise Williams is married to the defendant and that they have lived at that address since 2012.

[8] When police drove past the residence on August 21, 2019, they saw vehicles registered to Denise and Simon Williams parked in the driveway. They also noted that there were no insecure wireless internet connections available at that house.

[9] On August 29, 2019 Lee submitted an ITO (ITO #1) to search the defendant’s house based on grounds to believe that the offences of possessing child pornography and making it available had both been committed on May 6, 2019 by somebody in the Williams’ household. That ITO is 24 pages long and contains 84 paragraphs (Exhibit A-2).

[10] On August 30, 2019 a Search Warrant (Warrant #1) was issued by a Justice of the Peace authorizing a search of the Williams’ home on September 5, 2019.

[11] On September 5, 2019 Warrant #1 was executed. Police seized an Apple iPad Model A1416 from the house. They also seized an Apple iPhone model A1549 from the defendant who had arrived at the home during the search. The police sealed the phone pending judicial authorization to re-seize and search it.

[12] On September 12, 2019 Lee prepared and filed a Report to a Justice (RTJ #1, Exhibit B) relating to the computer and phone seized on September 5, 2019.

[13] On September 23, 2019 Lee submitted an ITO (ITO #2) to search the defendant’s phone based on grounds to believe that on May 6, 2019 and again on September 5, 2019 the defendant had been in possession of child pornography. That ITO is 25 pages long and contains 84 paragraphs (Exhibit A-3).

[14] On September 23, 2019 a Search Warrant (Warrant #2) was issued by a Justice of the Peace authorizing a search on October 1, 2019 of the defendant’s iPhone seized by police during the execution of Warrant #1 on September 5, 2019.

[15] On October 1, 2019 Warrant #2 was executed.

[16] On October 17, 2019 Lee prepared and filed a Report to a Justice (RTJ #2, Exhibit C) relating to the defendant’s phone.

[17] Forensic examinations revealed 1,039 images of child pornography and no videos on the defendant’s iPad and 12 images of child pornography and no video on his iPhone.

3.0: THE REPORTS TO A JUSTICE

3.1: Reasons for the filing dates

[18] Lee testified that it took her seven days between the search on September 5, 2019 and the filing of RTJ #1 on September 12, 2019 for several reasons. She said that in that time she had to execute a search warrant on an unrelated investigation, she had some training to attend, she had other ongoing investigations to deal with, there was a weekend in between, and she had some days off duty.

[19] Lee testified that it took her seventeen days between the search on October 1, 2019 and the filing of RTJ #2 on October 17, 2019 for similar reasons. She said she had other cases she was working on, she had some days off duty, there were two weekends (one of which was the long Thanksgiving weekend), she had to execute search warrants on other cases, including one which involved travel to and from Espanola, and there was a two hour travel time to and from Barrie to consider. Lee said that there is no sitting Justice of the Peace in Orillia, forcing her to travel to Barrie. She said the length of the round trip to Barrie makes it inconvenient when dealing with all her other duties.

[20] Lee acknowledged that she could have filed each RTJ sooner but she prioritized other duties and had a number of days off duty.

3.2: Positions of the Parties

[21] The defence submits that Lee took an unacceptably casual approach to filing the RTJs, focussing on other duties and personal convenience without any effort to expedite their filing. They say this especially true of RTJ #2, which was filed seventeen days after the phone was seized by warrant.

[22] The Crown submits that Lee was attentive to her duties to file the RTJs and was expeditious in the circumstances given that she had to balance her obligation to file against other duties such as executing warrants on unrelated investigations.

3.3: Applicable Legal Principles

[23] Section 489.1 of the Criminal Code requires a peace officer to make a report to a Justice as soon as practicable. This is necessary to permit the court to supervise the detention, or return, of a thing in which the person has subsisting privacy interests following seizure. Failure to file a report deprives the court of its gatekeeping function and can lead to injustice to an accused person: R. v. Gracia-Machado, 2015 ONCA 569; R. v. Canary, 2018 ONCA 304, [2018] O.J. No. 1786 (C.A.).

[24] The assessment of whether a report was filed as soon as practicable is case-specific and depends on all the evidence, including reasons as to why the report was filed when it was: R. v. Canary, supra, at para. 47.

[25] In R. v. Neill, 2018 ONSC 5323, [2018] O.J. No. 7024 (SCJ), two of the reasons for delaying filing of the RTJ were because the officer was working on other cases and his shift schedule did not permit him to file the RTJ within 7 days of a warrantless seizure of a cellphone. The court found it unreasonable to delay the report because (a) there was no need for the seizing officer to personally prepare or file the report when other officers could have done so, and (b) a warrantless seizure requires faster reporting.

[26] In R. v. Kift, [2014] O.J. No. 4215 (OCJ) the trial judge held that a delay of 35 days in making a report was reasonable given the complexity of the investigation, the number of items seized, and the officer's own work schedule and obligations. The trial judge also found it unlikely that the things seized would have been returned in timely fashion in any event. The Court of Appeal upheld these findings that the report was made as soon as practicable: R. v. Kift, [2016] O.J. No. 2626.

[27] The meaning of “as soon as practicable” in driving cases with breath testing is apposite. In R. v. Vanderbruggen, 2006 ONCA 339, [2006] O.J. No. 1138, the Ontario Court of Appeal held that the question to ask is whether, upon reviewing the whole chain of events, the police acted reasonably promptly in the circumstances.

3.4: Legal Principles Applied

[28] With respect to both reports, I find that Lee filed them as soon as practicable in the circumstances.

[29] Regarding RTJ #1, there was a weekend between the seizure and the report, reducing the possible filing time to five days. She did not ignore her duties towards this case. Her other duties, including executing an unrelated warrant and training, restricted the prospects of her filing the report right away. There was no evidence that another officer could prepare or file the report. Even if there was, there is no doubt that the computer would not be returned as it was awaiting a forensic analysis at the time of the RTJ. Given the officer’s explanation and the whole chain of events, I find that Lee acted reasonably promptly in filing RTJ #1 seven days after the fact.

[30] With respect to RTJ #2, there were two weekends, including one with a holiday, between the seizure of the phone and the filing of the report reducing the potential reporting time from seventeen to twelve days. Lee had to execute warrants in other investigations, one of which involved travel to Northern Ontario. She also had other cases to attend to. As an investigator into child abuse, it is not surprising that she might focus investigating such matters instead of immediately filing the RTJ. The fact that she had to travel to Barrie did not amount to a neglect of her duty. Arranging her trip to court to file the report was a relevant factor in meeting all of her police duties including those to this and other cases. At no time was she negligent or careless in her duties here, but unavoidably had to make choices to prioritize other matters of equal or greater importance. As with RTJ #1, there was no evidence that another officer could have dealt with its preparation and filing sooner than was done here. There also is no doubt in my mind that if a report had been filed immediately for the phone, it would have been detained for quite some time while it awaited forensic examination. I find on the evidence that Lee acted expeditiously in filing RTJ #2.

[31] I conclude that there was no breach of the Defendant’s section 8 Charter rights caused by the timing of the RTJs.

[32] If there was a breach, I would not exclude the evidence based on delays in filing the RTJs. The delay in filing either RTJ did not interfere with either the court’s ability to supervise the detention or return of either the computer or the phone nor did it impact in any way on the Defendant’s rights and interests. If there was a breach it was minor, and exclusion would bring the administration of justice into disrepute. At its highest, this situation was not one of negligent non-compliance, but a reasonably based delay in compliance: R. v. Neill, supra, paragraphs 97 to 110.

4.0: VALIDITY OF THE ITOs

4.1: Voir Dire Evidence of the Affiant, Det. Cst. Lee

[33] Lee stated that Google preserved the uploaded image and the account information associated with the upload but was unaware whether Google removed the image from their platform. She understood that preservation in this context meant two things: first, that should the Google account be closed the information concerning the image and the account would not be lost; and second that if the user tried to delete or remove the image that the image and the user information would still be available to Google and to investigators.

[34] Lee was aware that most internet platforms shut down accounts in similar circumstances. However, she was not sure if Google shuts down accounts their report said that they may, or may not, do so. Had she known that Google did, or did not, deactivate the account she would have included that in the ITO.

[35] Lee was not aware if Google ever deactivated the user account nor did she ever follow up as she did not consider the account status at the time of the ITO to be important.

[36] Lee agreed that she did not disclose in ITO #1 that the image was probably no longer accessible by anybody, including the user, on that Google platform after May 8, 2019. She said she never considered it was relevant to include because she had disclosed that she believed the image was there on May 6, 2019, which is the date of the alleged offence.

[37] Lee did not know if the uploaded image was accessible by others but doubted Google would allow anybody to access or view an image they tagged as child pornography. Nevertheless, Lee was concerned that the uploader still had the image at the time of the application for ITO #1 but she did not mention this in the ITO.

[38] Lee testified that it was relevant for an issuing Justice to know if the user still had access to the image at the time of the application for a warrant. Lee added that all she could say was that the person probably could not access the image through that account.

[39] With respect to paragraph 32 of ITO #1, Lee stated that she believed there are two ways for a person to upload an image, both of which involve wilful acts: first, by uploading it from a user-controlled device, or second by the user accessing it on the internet then copying and transferring it. In either case, the image would be saved on their device, even temporarily, to share it. She testified that a forensic examination would probably, though not definitely, find evidence that the image had been on, or passed through, the uploader’s device on May 6, 2019.

[40] Lee stated that once an image is uploaded to the internet, the image need not necessarily remain on the user’s device, but she believed that if an image passes through a device, it leaves a thumbnail, or impression, on the device which may, or may not, be accessible to the user.

[41] Lee testified that she believes from her experience that people who upload child pornography often have more than one image and keep them.

4.2: Positions of the Parties

[42] The defence says that ITO #1 should not have been issued for three reasons.

[43] First, they submit Lee made misleading omissions. They argue that the officer left out that it was improbable that the person who uploaded the image had access to it on Google at the time of the ITO and thus undermined reasonable grounds to believe the person would be in possession of it at the time of the search. Lee never explained in the ITO that the image was either still on a device to be searched or that she believed that the image may have passed through the device. They submit that that the issuing justice was misled by these omissions of relevant information into thinking the image, or evidence of it, was still on an internet-capable device at the Defendant’s home at the time of the proposed search.

[44] Second, the defence submits that ITO #1 fails to disclose reasonable grounds to believe that evidence of the purported offences would be found at the place to be searched.

[45] Lastly, the defendant submits that the ITO contains a speculative inference that the person who uploaded the image was a collector and keeper of child pornography. They submit that this inference was misleading in the circumstances.

[46] The defence submits that Warrant #1 should not have been issued. This warrant led to the seizure of the computer and of the phone at the Defendant’s house. They argue that if the search of the house was unlawful then, by extension, the seizure of the phone by Warrant #2 was also unlawful. The result they seek is an exclusion of the forensic analyses of the computing devices.

[47] The prosecution contends that nothing in the ITOs misled the issuing justice into believing that the image was still on a device at the Defendant’s home after Google had acted. They submit that the ITOs provide sufficient and reasonable grounds to believe that someone at the Defendant’s house uploaded an illegal image on May 6, 2019, and that it was reasonable to believe that evidence of this transaction would be found on a computing device in the house at the time the warrant was requested. The Crown further submits that in presenting the ITO, Lee avoided any stereotyping of propensity to collect and keep images.

4.3: Applicable Legal Principles

[48] When reviewing the issuing of a search warrant, the scope of the judge is narrow. It is presumed that the warrant is valid. The reviewing judge does not decide whether he or she would have issued the warrant, but must determine whether the ITO, as excised and amplified, provides sufficient credible and reliable evidence upon which the issuing justice could, not must, be satisfied there were reasonable grounds to issue the warrant.

[49] The standard is whether the authorizing justice, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched. The inquiry begins and ends with an assessment of whether the record, whether amplified or not, contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, R. v. Morelli, 2010 SCC 8; R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.); R. v. Mackey, [2020] O.J. No. 3111 (C.A.) at para. 54; R. v. Cusick, [2019] O.J. No. 3281 (C.A.) at paragraphs 89 and 90.

[50] Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review: R. v. Sadikov, supra, at paragraph 87.

[51] Without evidence, a conclusion or inference that someone has propensity to hoard child pornography is an error of law: R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273 (S.C.C.).

4.4: Principles Applied

[52] For reasons I will set out, I respectfully disagree with the defence in this case.

[53] ITO #1 addresses the offences of possession and making available child pornography on May 6, 2019. The offence was not said to be a continuing one. As such, there was no need for the ITO to address the question of the image being in possession at the time of the search months later. Nothing in the ITO stated or inferred that the image itself would be present. Therefore, the omissions complained of were irrelevant and thus not misleading when deciding whether to issue the warrant.

[54] The ITO was required to provide a clear basis to reasonably believe evidence of the uploading on May 6, 2019 would be found on the date of the search, being September 5. Reading the entirety of the ITO shows many places where reasonable grounds existed to believe that evidence concerning the events and uploading transaction of May 6, 2019 would be at the place to be searched.

[55] Contrary to the submission of the defendant, Paragraph 32 was not misleading, but was fair and helpful in describing two ways to upload an image: either by sending an image already saved on the device, or by searching it on the internet and then sharing it. In each case, the ITO was clear that each involves an overt, or deliberate action by the person uploading the image. An easy and logical inference from this is that the person who uploaded the image on May 6, 2019 had knowledge of, and control over, the image at the time they put it on Google. This paragraph in no way implied that the image would still be on the computer at the time of the search.

[56] Paragraph 33 of the ITO reasonably states that by choosing to upload the image to Google, they did so to make it available for other to see it. Making child pornography available was one of the offences to which the warrant related. It is irrelevant that this offence is not now before this Court for trial.

[57] Paragraphs 45 to 58 set out that when a person performs any action on a computing device, there is a log of the date and time of that action. Paragraph 60 describes that data relating to actions taken and data stored, such as transferring an image either from the device or from the internet by means of that device, may be retained on the device for years, even if the user has deleted it since taking that action. In her evidence, Lee amplified the ITO by stating that while deleted information is not always found, it usually is. Her evidence was a fair summary of what was already in the ITO.

[58] At paragraph 62, the ITO states that an examination of the device can provide a link between the crime and the person committing it. At paragraph 67, it states that a history search of the computer both before and after the date and time of the alleged crime can show possession and control of the image over a period that includes the alleged offence date.

[59] Upon reading the whole of the ITO, I find that it was open to the issuing justice to believe that evidence of the offence in May would be found on a computing device in the Defendant’s house in September.

[60] Lee’s further evidence about a thumbnail, or impression, being left on the device was not in the ITO. This was relevant evidence that she omitted without any intent to mislead. Had this been included, it would only have enhanced the grounds to believe evidence of the offence would be found during the search. By contrast, its omission did nothing to mislead or undermine the credibly-based probability that evidence would be found at the place to be searched.

[61] With respect to the submission that the ITO impermissibly inferred that the uploader was a saver or collector of pornographic images, I disagree. In her voir dire evidence, Lee stated that many uploaders of child pornography do have a propensity to collect and save these images. Had she included this in the ITO without evidence to connect the user in this case with such propensity, that would have been wrong and would have had to excised. However, Lee did not include this in the ITO and no common sense reading of it would cause any reasonable person to infer such a propensity.

[62] For these reasons, I affirm the validity of ITO #1. As such, the subsequent ITO #2 is also affirmed.

5.0: CONCLUSIONS

[63] For the reasons set out herein, I find that the defendant’s claims that his Charter protected rights were violated must be dismissed. Accordingly, the evidence regarding the finding of over 1,000 images of child pornography on the Defendant’s computer and his cellphone will not be excluded.

[64] My verdicts are therefore guilty on both counts.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice