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(1) 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(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

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.

Ontario Court of Justice

Date: February 10, 2021

Between:

HER MAJESTY THE QUEEN

— AND —

JACOB OLMSTEAD

Before: Justice Robert S. Gee

Heard on: January 26, 2021

Ruling on Accused’s s. 8 Charter Application released on: February 10, 2021

Counsel: A. Minelli, counsel for the Crown P. Dinis and M. Stuckey, counsel for the accused

Gee J.:

[1] On November 5, 2018 the Brantford Police were granted a search warrant for the residence of the accused, Jacob Olmstead. The police believed Mr. Olmstead to be in possession of child pornography and the search warrant they obtained authorized them to enter his residence and search for and seize computers and other electronic devices that may contain any child pornography images. Several devices were seized, and a number of images alleged to be child pornography were located on them. As a result, Mr. Olmstead has been charged with possession of child pornography.

[2] In this pre trial application, Mr. Olmstead has alleged that the search warrant ought to never have been granted and that as a result, the search of his home and the seizure of the devices has resulted in an unreasonable search and seizure violating his s. 8 Charter right. As a remedy for this alleged breach, pursuant to s. 24(2) of the Charter he seeks the exclusion of all evidence seized by the police in the execution of the warrant.

[3] Mr. Olmstead’s attack on the warrant comes from three sides. He alleges first that the warrant was overbroad and allowed police too much latitude to seize the devices they sought, second that the Information to Obtain (“ITO”) sworn to support the issuance of the warrant did not disclose a sufficient basis for the warrant to be issued and third, that Officer Balbir Singh, the affiant of the ITO made material misrepresentations and omissions in his drafting of the ITO rendering it incapable of supporting the issuance of the warrant

[4] These reasons will explain why although I find that the ITO was perhaps not a model of well written legal prose, the fact that it could have been written better, does not mean it suffered the flaws Mr. Olmstead alleges. I find when read as a whole, the ITO did provide a sufficient basis for the Justice of the Peace to grant the warrant he did and as such, Mr. Olmstead’s Application will be dismissed.

Scope of Review

[5] In this case, the defence sought, and the Crown consented to the cross examination of the affiant on the ITO. As such this review takes place based on the ITO as amplified by the evidence of that examination.

[6] The scope of review is narrow. Justice Watt in R. v. Sadikov, 2014 ONCA 72 discussed this scope in paragraphs 83-88 and the following principles can be extracted from that decision and the cases he cites therein.

[7] The starting point of any review is the presumption that the warrant is valid. The onus to establish invalidity falls upon the person alleging it. Next, as noted, the scope of review is narrow. It is not a hearing de novo of the ex parte application. As well, the reviewing judge does not substitute his or her view for that of the issuing justice. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could, not would, have issued.

[8] Warrant review is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained are explored. It is not the reviewing judge’s role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. See also R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at par. 40, R. v. James, 2019 ONCA 288 at par. 19 and 52, and R. v. Araujo, [2000] S.C.R. 992 at par 58.

Accused’s S. 8 Application

[9] The accused’s Charter Application listed two grounds to support his challenge to the issuance of the search warrant. The first was that the search warrant issued based on the ITO was overly broad and authorized the search for and seizure of too much. The search warrant authorized the police to search the accused’s residence and seize all electronic devices such desktop and laptop computers, cell phones and tablets as well as any digital storage media. This, the accused argues, gave the police too wide a net especially considering the fact he was not the only resident of the house.

[10] The second ground alleged by the accused is related to the first ground. Here, the accused claims there were insufficient grounds to authorize a search of all the electronic devices at the accused’s residence.

[11] As noted above, the Crown consented to the accused’s Application to cross examine Officer Singh on the ITO. In doing so the accused attempted to demonstrate that Officer Singh made material misrepresentations and omissions when drafting the ITO. In argument this led to a third basis to challenge the warrant in that had these misrepresentations not been made or the omitted material included, there would not have been sufficient grounds for the issuance of the warrant.

[12] The ITO is approximately 40 pages long and is broken down by several different headings. There are sections on investigative sources and definitions, persons involved and the background to the investigation amongst others.

[13] It delves into aspects of the internet unfamiliar to most. It explains what is known as the BitTorrent Network, which is apparently a method of downloading files using a “distributed peer to peer file sharing system.” Programs used to download the files are referred to as “clients” and go by names such as Shareaza, uTorrent, Vuze, and Delug. The BitTorrent network breaks up large files into hundreds of smaller pieces and users can download different pieces of a file from different users at the same time. This makes the downloading of large files very fast and it also allows for users to share files, before the file is downloaded in its entirety. These reasons make it a very common tool for downloading large amounts of data.

[14] The BitTorrent network is not only used by persons engaging in harmful criminal activity. It can be used for sharing all kinds of large data files. According to Officer Singh it is commonly used by persons to share music and as well, an example in the ITO demonstrated how it can be used to download television programs such as Game of Thrones (the ending of which though some may classify as criminal, but I digress).

[15] These technical aspects of the ITO make it a difficult read, especially if the reader is not literate in all thing’s technology related. It could have been written in a manner that was simpler and easier to understand by those less technically savvy. That being said though, when given a careful, considered and thorough reading, the basis upon which the warrant was sought and ultimately granted is apparent.

[16] The Brantford Police have available to them a program called the Child Protection System or “CPS.” What the CPS does is by using several automated detection processes, it identifies and logs huge quantities of worldwide IP addresses that are identified as involved in the possession of and distribution of child pornography. Police, such as Officer Singh can use CPS to identify IP addresses in their local jurisdiction that are suspected to have engaged in the downloading of child pornography.

[17] On September 6, 2018, Officer Singh used CPS to identify IP addresses in the Brantford area that were recently identified as being involved in child pornography on the BitTorrent network. The CPS identified an IP address later determined to belong to the accused. In the ITO, Officer Singh stated the CPS had browsed the publicly shared folder associated to this IP address and identified at least 248 files of suspected child pornography. The timeframe for the accessing and/or downloading of these files had been from at least February 12, 2018 to August 10, 2018 when this IP address was last seen on the network.

[18] In the ITO Officer Singh states he then used the CPS software to generate a historical report that showed the dates and times that a computer connected to the IP address was logged onto the BitTorrent network and the hash values for the suspected child pornography images and videos that were being shared by the computer. Hash values or info hash are like a unique fingerprint for each file or piece of file shared on the network.

[19] In addition to this information the report also associates the title given by the user or creator of the file being shared. Without going into detail the titles, from the historical report associated to the accused’s IP address in this matter, if one assumes they accurately describe the video or picture they are naming, would leave no doubt that their content was child pornography. Several of the titles reference sex acts with children as young as 5 or 7 years old.

[20] As noted earlier, one of the programs used to download files from the BitTorrent network is Shareaza. There is a modified version of this program used exclusively by police called ShareazaLE with the “LE” referring to law enforcement. This program allows law enforcement users to download files either directly from a particular computer or generally from the BitTorrent network. The difference between Shareaza and ShareazaLE is that ShareazaLE downloads the file but unlike Shareaza, does not allow it to be shared with other users. When the program is used to download from the network in general as opposed to a specific IP address, it is called a Download Magnet.

[21] Officer Singh through his work in this area has created his own database of child pornography images and videos. None of the files in the historical report generated in this matter were in his database. As such, he took the hash values from several of the files and using ShareazaLE as a download magnet, he searched the network, for these files. On September 19, 2021 he received the results of this download magnet and confirmed four of the files met the definition of child pornography. In the ITO he stated as a result of this search “I can say with certainty that the user in question is very likely in possession of the four files…”

[22] After this confirmation, Officer Singh took steps to determine the owner of the IP address associated with these files. He determined it to be the accused who resided at an address in Brantford. He then ultimately prepared the ITO and obtained the search warrant. When executed at the accused’s residence several computers and other devices were seized which when searched, resulted in the charge before the court.

[23] Dealing first with the accused argument the warrant was overbroad and granted the police too much latitude in what devices to seize and what to search on those devices, I find it was not so. The defence argues the ITO made it clear the accused was the person suspected of downloading the child pornography. However, the warrant issued granted the police authority to search for and seize all electronic devices including desktop or laptop computers, in the house, cell phones and other media storage devices. It then authorized them to search these devices for evidence of child pornography. The warrant was not limited to the search and seizure of these devices, it also authorized police to seize other documents and correspondence that could assist in proving who occupied the residence and had control over the devices seized.

[24] I disagree that the search warrant in these circumstances was overly broad. The police, when granted a search warrant are not necessarily limited to the search for evidence that can be demonstrated is connected only to their suspect. A search warrant authorizes the search of a place for evidence of the commission of an offence. It may be that the police have a suspect and that may inform the basis for granting the search warrant. However, the search warrant may result in the uncovering of evidence that other persons in addition to the suspect are involved or that the police were mistaken, or it may confirm the involvement of the suspect.

[25] In this case Officer Singh set out in the ITO a rational basis for framing the request as he did. He explained in his experience investigating these types of offences, that individuals who possess child pornography tend to not delete it but to keep their collections. Once downloaded the files can be easily transferred to other devices like USB drives, SD cards, cell phones, external hard drives etc. He also indicates even when files have been deleted, they can often be recovered.

[26] This I find is a logical, rational, and reasonable basis for the request to search for and seize the devices sought in the warrant. Even though the police had a suspect, that is not a basis to limit the search here to only those devices directly connected to him. It is reasonable for the police to seize from the place to be searched any device capable of accessing the internet through the IP address identified. It is also I find reasonable to authorize a search for other evidence that will connect persons to the devices seized. It is reasonably connected to the seizure of the devices and could assist in providing evidence of who was the one downloading and possessing any child pornography found.

[27] It is for these reasons the accused’s argument that the ITO authorized an over broad search warrant fails. The ITO articulated a reasonable and rational basis upon which the issuing justice could rely to grant the search warrant for all the items sought.

[28] The accused’s next argument is that the ITO contained material omissions and material misrepresentations and that when the omissions are corrected and if the material misrepresentations excised, what remains does not provide a reasonable basis for the issuance of the warrant.

[29] Again, on a careful review, and reading the ITO as a whole as I must I find this argument by the accused also fails. The crux of this argument focusses on what Officer Singh said about and the use that could be made of the CPS historical report generated by him on September 6, 2018.

[30] One error in the ITO has to do with the timestamp in the CPS historical report. One of the columns in the report is titled “timestamp” and provides a date and time. In the ITO Officer Singh stated this timestamp referred to the date and time when whomever was using the computer was accessing the child pornography files. Officer Singh learned later, after the issuance and execution of the warrant that the timestamp actually referred to the point in time which the device or computer in question had downloaded and was in possession of the child pornography file.

[31] This error I find was unintentional and made in good faith. Officer Singh learned of his misunderstanding of the timestamp column after from speaking with a colleague and immediately notified the Crown and prepared a willsay correcting his error. As well, this error is not material in the overall context of the investigation and the ITO. I find it could not alter the basis upon which the warrant could issue. Both interpretations provide a reason to believe that at a given point in time, illegal activity was taking place associated to a certain IP address, either the accessing of child pornography or the possession of child pornography.

[32] The accused also alleges the Officer Singh omitted to clearly explain in the ITO what can actually be inferred from the CPS historical report. The accused position is that the report infers that the files listed in the report will still actually be found on the computer as of the date of the ITO. This inference is incorrect and comes from Officer Singh’s failure to adequately explain what the historical report is meant to show. What the CPS report shows, is a snapshot in time. It tells what files were downloaded to the shared folder and available to the BitTorrent network on the computer associated to a particular IP address at a given point in time.

[33] When Officer Singh did his CPS search September 6, 2018 and produced the historical report it showed a time range starting from February 2, 2018 and ending with the last download to the shared folder on August 10, 2018. The fact that there was nothing from August 10, 2018 to the date of the search of September 6, 2018 means that as of the date of the search there was nothing in the shared folder associated with the computer. The CPS historical report only showed what was in the folder at a time in the past, since nothing was dated after August 10, 2018, there was nothing in the folder at the time of the search.

[34] The accused argues that this was not explained explicitly in the ITO and creates the impression that all files in the historic report were currently on the computer as of the date the ITO was prepared, when in reality they may not have been. They could have been deleted or moved to other folders in the computer that the CPS does not see. The accused’s argument is that by the time the ITO was prepared on November 5, 2018, the information about child pornography downloaded to the computer was stale dated, it was approximately three months old. This undermines the inference that there will be evidence still available at the place to be searched, that being the computer.

[35] I agree with the accused that Officer Singh could have explained the workings of the CPS and the historical report more clearly. It would have been better had he provided a clear explanation of how it works at the time he first discussed it in the ITO. However, on a careful and fair reading of the ITO in its entirety, the failure to provide this type of explanation does not render the ITO misleading.

[36] At other parts of the ITO Officer Singh speaks of his reasonable grounds to believe the suspect “had” downloaded child pornography files and in the same paragraph (par 4, pg. 27 of ITO) speaks of how they can be easily transferred to other storage devices. Then in the next paragraph he talks of how in his experience individuals who possess child pornography do not tend to delete it. This speaks to downloading in the past tense and provides explanations why the files would likely still be found, but could be in different places on the computer or on different devices.

[37] Then later in the ITO Officer Singh again talks of how the CPS determined the subscriber of the IP address “was in possession of the 4 child pornography files; two on July 20, 2018 and two on August 10, 2018.” So again, this speaks of the CPS information in the past tense. (par. 7, pg 30 of ITO)

[38] These explanations also address any issues related to the accused’s allegation the information generated by the CPS is stale dated. Officer Singh provided reasons why even though the child pornography files were downloaded up to three months prior, they were still likely to be found in the places he was requesting to search.

[39] The accused has also alleged the ITO is misleading because Officer Singh did not explicitly point out that a significant number of the files in the CPS historical report were duplicates. The CPS report indicated there were 360 files in the shared folder associated with the accused’s IP address of which 298 were suspected to be child pornography. The accused points out a careful review of these 298 shows that, approximately 120 were duplicates, meaning the same file was listed more than once.

[40] Again, it could be said it may have been better if this was pointed out more explicitly but not doing so does not detract from the reasonable grounds that were before the justice issuing the warrant. It seems to me it is a distinction without significant consequence. Even if the accused’s review is accurate, it shows two things. First, the fact there were duplicates is apparent on a close review of the historical report and second, even accounting for duplicates this was still a significant amount of child pornography suspected to be downloaded to the accused’s computer.

[41] One further factor the accused alleges undermines the grounds for the issuance of the warrant, is that of the suspected 298 child pornography files alleged to have been downloaded, only four were verified as child pornography by Officer Singh. This is another argument I find without merit. Context is important. This is an application for a search warrant. The test that the judicial officer had to apply at the time of the ITO review was whether there were reasonable and probable grounds to believe that an offence had been committed and that there is evidence to be found at the place of the search. See: Hunter v. Southam Inc., [1984] SCJ No 36.

[42] As noted earlier, this is not akin to evidence at trial. Officer Singh is not obligated to provide proof beyond a reasonable doubt. Here the CPS produced a report indicating a large quantity of files were downloaded to a computer associated to the accused’s IP address. The titles on these files as mentioned earlier were explicit and alone were often indicative of child pornography. Four of the files were retrieved and viewed and confirmed to be child pornography. The fact more were not retrieved and viewed is of no moment considering the entirety of the information in the ITO and the test the judicial officer had to apply.

Conclusion

[43] As noted earlier this ITO could have been better written. However, simply because it could have been better written does not mean it was not capable of supporting the purpose for which it was written. When given a careful, considered and thorough reading, I find that there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. As such the issuance of the warrant was proper. The arguments of the accused and the alleged flaws in the ITO the accused submit were revealed by the examination of Officer Singh, whether viewed alone or as a whole, do not undermine this finding. As such the accused’s Application is dismissed.

Released: February 10, 2021 Signed: Justice R. S. Gee