Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: August 16, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NATHAN JOHNSON

Before: Justice S.R. Shamai

Heard on: July 6, 2022 Reasons for Judgment released on: August 16, 2022

Counsel: Kevin Doyle, counsel for the Crown David S. McFadden, counsel for the accused Nathan Johnson

Reasons for Judgment

SHAMAI J.:

[1] Mr. Johnson elected trial before this Court on charges contrary to the Criminal Code. The charges are: child luring (s. 172.1(1)), communicate with anyone under 18 for purposes of obtaining sexual services, s. 286.1(2); and distribute sexually explicit material to a person under 18 years of age (s. 171.1(1)(a)). His election followed the Crown election to proceed by indictment.

[2] The Court has heard two motions, one by way of voluntariness voir dire, the other a Charter application related to lost evidence, seeking a stay of proceedings as relief under section 24(1) of the Charter for a breach of Section 7, and Section 11(d).

[3] It was agreed that the motions and the trial evidence would be heard in blended fashion. After calling the evidence, counsel agreed that the Crown had demonstrated voluntariness of the alleged statement, but Crown indicated that the statement was not part of its case, subject to the voir dire only in the event that it was required for cross-examination of the Accused.

[4] However, no evidence was called on behalf of Mr. Johnson, and counsel asked the Court to determine the Charter application for a finding of breach and remedy by way of stay, prior to dealing with the trial issues, in the event the stay not be granted.

[5] By way of overview, the Crown’s case relies on the testimony of then - D.C. Wohlert (now retired) of the Ontario Provincial Police. An officer since 1987, Wohlert had been assigned to the Child Porn section of the OPP since early February 2006. He described the mandate of that section as the investigation of internet-based child exploitation and trafficking, the making and distribution of it, and child luring. He provided information to other officers and lectured on the topic. In August 2019 he travelled from his home near headquarters in Orillia to Peterborough on a joint investigation with the Peterborough Police Service for online investigation of persons involved in child exploitation. The investigation was slated to take place from August 27 to 29, 2019.

[6] Wohlert had set up a profile on a dating site, Plenty of Fish (POF), posing as username “ellieboobear11”. Ellieboobear stated her gender as female, her age as 18, her intent “to date but nothing serious”: “Just trying not to be bored on my last days before high school starts next week”. The profile stated particulars about her physical description and background.

[7] Wohlert testified that he was aware the platform did not permit persons under 18 years of age to set up a profile, and that he knew from experience that the platform would automatically shut down if a profile showed a DOB for a person under 18, having made the mistake of entering such a DOB in another investigation. He testified that he used a number of assigned devices on this project, and was using a Samsung tablet at the time he received a message related to this investigation.

[8] From a username “howarya2019” one message stood out: “hey$$$$$”. This indicated to the officer that the sender was going to pay for something. The officer changed his profile to show a 16-year-old. He described himself in the chat on the dating platform as being a curious person, younger than listed.

[9] Because the content of the chat on the tablet and his laptop were no longer available to him, the witness refreshed his memory by reference to the bail synopsis, which he had prepared on August 29, 2019, when the POF chat was still available to him. He candidly told the Court that he took direct quotes at the time, but did not have the log, so he could not relate the entirety of it to the Court. He testified that “to the best of [my] recollection, ellieboobear offered “a blowjob for $100 and if he [howarya2019] likes my body we would have sex”. She stated she was 16, and understood he was 26, both from the Lindsay area. Further messages after the age of 16, grade 11 student was established included a further exchange that he (howarya2019) hoped she “was good with big ones… I mean I have a big penis”. The witness testified that the chat continued a bit longer then went to email.

[10] A meeting time and place was set up. In due course, with further emails exchanged between the two, a man admitted to be Mr. Johnson attended at the approximate time and place and was arrested on the charges before the Court. His phone was seized at the time of the arrest, and he was held in custody for show cause hearing.

[11] The emails were tendered to the Court as an exhibit. The chatlog from POF could not be filed as an exhibit however. This is the nub of the lost evidence issue.

[12] DC Wohlert continued this investigation in preparing a bail synopsis and an interview with Mr. Johnson after his arrest on August 29, then continued his tour of duty that day in relation to another investigation. The following day, August 30, when he tried to download the chat from the tablet to an independent hard drive or some durable medium, he discovered that the profile had been “banned and deleted”.

[13] The officer testified that he believed that all the POF chats were on the phone seized from Johnson, so that once it was submitted to digital forensics, they would have the ability to extract that information. Without any further explanation of the officer’s assertion, I do not understand how he could expect that material which had been deleted from his tablet could still exist within the phone of the accused. However, this was not explored in the record.

[14] The application to seize the phone under search warrant for submission to digital forensics was not made until December 12, 2019. The submission in due course to digital forensics in fact confirmed on December 31, 2019 that nothing by way of that chatlog could be found on the device.

[15] On January 30, 2020, the officer sent a preservation request to POF for the subscriber account. Next, the officer applied for a production order, which was made by Justice D.D. White on February 13, 2020. POF responded on February 19, 2020 that they had deleted the chatlogs for that account, and the chatlogs were not recoverable. The officer advised that at that time, he was told that data is deleted after a 30-day period of inactivity, which is what had happened on the account “howarya2019”.

[16] The significance of the chatlogs to this prosecution is clear: only within the chatlog does the officer change the information shown on the recorded profile of “ellieboobear” from an 18-year-old high school student to a 16-year-old Grade 11 student. That change brings the alleged communications to alleged offences, amounting to luring, communicating and distributing sexually explicit material with a person under 18 years of age. There is no question that these exchanges ought to have been disclosed by the Crown. Their significance to the Crown’s case, and the ability of the Accused to make full answer and defence is plain. Although the officer testifies that he used “direct quotes” from the chatlogs in preparing the bail synopsis hours after they were alleged to have been made, by referring to the tablet which still contained the chats, he testified that not 24 hours later he found that the chats had been deleted from his device.

[17] Wohlert was an officer with thirteen years experience in investigating internet-based offences involving children and pornography with the specialised unit of the Ontario Provincial Police. He had responsibilities in the field, setting up profiles, conducting chats and setting up meetings in the context of alleged criminal conduct. He had used the POF platform previously for this purpose, and was aware that the company was self-policing, in the sense that an underage person using the dating platform would be barred from setting up a profile. Once the profile user indicated that she was 16, not 18 as the account information stated, it would be closed down.

[18] The officer was on a day off when he attempted to preserve the evidence the day after he received it. He did not take any further step at that time on August 30 to preserve the evidence. He did not seek a warrant for immediate examination of the phone on which he believed the chats would be found. He did not write a letter to the POF company, to attempt to retrieve the chats, or to clarify the disappearance of the chats, or their retention policy. He did not do it on that day off before the Labour Day long weekend of 2019; he did nothing for a further four months! Even at that time, the investigation of the key evidence for this prosecution proceeded in a leisurely manner: first an application on December 12, 2019 for search warrant to proceed with an examination of the phone seized at the time of Mr. Johnson’s arrest, then the predictable results of the forensic exam, that what had been deleted at source and not available on the officer’s tablet was equally unavailable on Johnson’s device. The inquiry to POF, which ought to have become significantly more urgent at that point, did not proceed until a further month elapsed. An email to the corporation was sent on January 30, a preservation order was authorised on February 12, 2020. At that point, the advice from POF confirmed what the officer stated to the Court he knew: that illicit accounts were deleted. The preservation policy of 30 days with respect to an inactive account, seems to have been news to him. It was of no help to the investigation however, being received on February 19, 2020, ten days short of six months after the officer became aware that the evidence had disappeared.

[19] The law is well established in Canada regarding the Charter relief which may arise when evidence once available to be disclosed is not disclosed. Non-disclosure of information whose existence has been identified may fall into three pertinent categories, in terms of determining the consequences, from a constitutional perspective. Evidence which is not disclosed because it is beyond the control of the Crown, or is clearly irrelevant or privileged may be justifiable non-disclosure. However, the Crown and the police have a duty to preserve the fruits of the investigation. Our Supreme Court recognizes both the critical role of preserving evidence supporting a prosecution, given the duty to disclose, and as well, the possibility that evidence may sometimes be lost:

“The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter.” (R. v. La, [1997] SCJ No. 30 @ para 20)

[20] “Lost evidence” is not a monolithic category, moreover; analytically, the law recognizes three “distinctly different kinds of Charter breaches in this context (R. v. Hassan, 2014 ONSC 1345, [2014] OJ No 988 at paragraph 9). In this case, there is a violation of the right to disclosure, the first category identified by the jurisprudence. There is no question as to its relevance, in terms of the well-known Stinchcombe analysis: the chats are not clearly irrelevant, quite the contrary. They should have been preserved. The salient issue on this application is whether the loss of this relevant and disclosable evidence was due to unacceptable negligence.

[21] There is further procedural significance in clarifying the nature of the loss, in these terms. Knowing they should have been preserved, the Court must engage “some degree of fault analysis, at the s. 7 violation stage, with less emphasis on the importance of the lost evidence or any prejudice to the result at trial until the s. 24(1) remedies stage of analysis is reached” (Hassan para. 10). Where there is a failure to preserve relevant evidence in relation to the right to disclosure, the burden of proof shifts to the Crown to prove an absence of “unacceptable negligence”.

[22] A handy decision tree has been adopted by our Court of Appeal from the Nova Scotia Court of Appeal in the case of R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 @ 547-8:

(1) The Crown has an obligation to disclose all relevant information in its possession. (2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence. (3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence. (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. (5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. (6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights. (7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation. (8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor. (9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy. (10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

(per Doherty J, R. v. Bero, [2000] OJ No 4199)

[23] In this case, the Crown has provided no evidentiary basis to show that this late response was justified in any way. The officer was particularly experienced in this type of investigation: he was specialised in the investigation of these internet-based child pornography and related offences, and had long experience with the evolving offence types and evidentiary requirements. He taught other officers about this type of investigation, and was consulted by others. He had set up profiles many times in the past on this and other platforms, and was aware of their self-policing practices. He became aware within less than 24 hours of the alleged commission of the offence, that the digital profile had disappeared. This case hinged on the identification of his online alter ego ellieboobear as a 16-year-old.

[24] Mr. Johnson retained counsel by the time of his first appearance in court, on September 18, 2019, and a request for disclosure, including “inter alia a request for “all communications between “ellie” and the applicant” was made on September 20, 2019. I note that had prompt action been taken on that date or within the nine days following the request for disclosure, it may be that the Crown could have preserved the evidence in question. That was not done, nor was any action taken by the officer (or the Crown) for months following. I underline that the experienced officer was promptly aware of the defect in the investigative record.

[25] In considering whether this failure to preserve evidence falls into the category of “unacceptable negligence” (paragraph 4 in decision tree adopted in Bero, above), I am guided again by Justice Doherty in our Court of Appeal, in the case of R. v. Hersi, 2019 ONCA 94, [2019] O.J. No. 671 para’s 27 – 34. In that case, the trial judge had to assess two categories of missing evidence. The destruction of text messages was viewed as unacceptable negligence. The evidence of the officers showed that the police had assessed the potential significance of what was characterized as “discussions about plans to meet and other social chitchat”. The Court said:

“It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the UC could operate under the belief that he need save only relevant material that he viewed as significant.

33 I think a reasonable officer in the position of the UC would have appreciated that the prosecution would ultimately turn largely on the communications between himself and the appellant, and that it was therefore important to preserve all communications between them. Indeed, the UC seemed to appreciate the need to preserve the content of the text messages since he went to the trouble of making verbatim handwritten copies of the contents before destroying the actual text messages.

34 Given the nature of the investigation, the destruction of the text messages fell well below what should be expected of a reasonable police officer properly informed of the prosecution's disclosure obligations. The Crown failed to show the absence of unacceptable negligence. The destruction of the text messages interfered with the appellant's ability to make full answer and defence, and breached his s. 7 rights”

[26] In this case, the unavailability of social media messages was the result of informed inaction on the part of the officer. He knew the messages had disappeared. He knew that this related to the information posted in the course of the investigation about the age of the postulated complainant. He knew that the disappearance of the key messages likely related to the self-policing of the platform itself. He did nothing for months. His assumption about the retrievability of the messages from the seized phone makes no sense, and even so, that assumption was not explored for months after the investigation and arrest.

[27] The information here is not simply fodder for further defence investigation or fuel for cross-examination of witnesses. It is the core of the Crown’s case. The officer may have used some quotes to create the bail synopsis, but in no way does that cure the absence of this material. The Crown’s case relies on these assertions and whatever else was said in context of the changed statement of complainant age. In the absence of this, it is impossible to conclude that Mr. Johnson’s right to a fair trial has not been prejudiced. Clearly there is no alternative remedy capable of redressing the prejudice. Although I have no difficulty concluding in these circumstances that a stay is warranted, were I to engage the final test directed by our Supreme Court in Babos (2014 SCC 16) @32), in balancing the interests in favour of a stay, it is impossible to complete that test, which requires the assessment of society’s interest in having a decision on the merits, as proof of the merits is the missing element here.

[28] I conclude therefore that with my finding of a breach of Mr. Johnson’s right to disclosure under section 7, and the breach of his right to a fair trial and to make full answer and defence under Section 11(d), the Court must find that the Crown’s case is flawed by unacceptable negligence on the part of the investigating officer, and a stay is the only appropriate remedy. I am staying the proceedings.

Released: August 16, 2022 Signed: Justice S.R. Shamai