R. v. Sonne

110 O.R. (3d) 209

2012 ONSC 1463

Ontario Superior Court of Justice,

Spies J.

March 19, 2012

Charter of Rights and Freedoms -- Search and seizure -- Search warrants authorizing search of accused's residence for and seizure of records relating to production of explosives -- Warrants not expressly authorizing seizure of computers only files and other data that might be stored on computer -- Police not seeking warrant to permit seizure of computers -- Police not entitled to rely on plain view doctrine to seize computers as foreseeable computers being present in residence and not inadvertent -- Seizure violating accused's rights under s. 8 of Charter -- Search of entire hard drives of computers not violating s. 8 -- Impracticable to search computer while in accused's residence during period provided for execution of warrant and police decision to remove computer to permit later search not made in bad faith -- Warrant authorizing search for "records" and "information" relating to production of explosives permitting cursory search of all types of files [page210] including video files -- Technical breach of accused's s. 8 Charter rights as search of computers took place after time specified in warrants -- Violations not serious, police not acting in bad faith or deliberately disregarding of terms of warrant -- Violation not having any real impact on accused's Charter-protected interests -- Evidence found on computers important to Crown's case -- Evidence pre-existing breach of rights and being real and reliable -- Admission of evidence not bringing administration of justice into disrepute and truth-seeking function of trial would be enhanced -- Canadian Charter of Rights and Freedoms, s. 8.

Warrants to search the accused's residence authorized a search of computers for records and other information relevant to various charges including the production of explosives but the warrant did not expressly authorize seizure of the computers. The police seized the computers and searched the entire hard drives. The accused brought an application to exclude evidence found on the computers under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his rights under s. 8 of the Charter were infringed.

Held, the application should be dismissed.

The officers testified that they believed that as they had a right to search the computer for evidence and it could not be searched while in the accused's residence, they could seize the computer to search it later. They foresaw that there would be computers at the accused's residence and did not ask that the warrant provide explicit authority to seize computers. The police could not rely on the plain view doctrine, as it presupposes an inadvertent discovery of evidence, nor on the provisions of s. 489 of the Criminal Code, R.S.C. 1985, c. C- 46, to seize the computers. The seizure of the computers violated the accused's rights under s. 8 of the Charter. However, it was impracticable to conduct the search of the computers while at the accused's residence, and had they done so, it would have significantly impacted on the privacy interests of the residents.

The search of the entire hard drives of the computers did not violate the accused's rights under s. 8 of the Charter. The police were entitled to conduct a cursory review of every file, of any type, on the computers before deciding whether or not to seize a particular file. The review that was conducted was, in fact, cursory. The search was not overbroad.

The accused's rights under s. 8 of the Charter were violated in a technical way by the fact that the search of the computers took place after the time period specified in the warrants. It appeared that the police did not appreciate at the time that the search had occurred outside the time frame permitted in the warrants and had they realized that they needed an extension, they probably could have received one.

The police acted in good faith. The violations were not serious and had little, if any, impact on the accused's Charter-protected interests. The evidence was real and reliable and existed independently of the Charter breach. The evidence found on the computers was important to the Crown's case. On balance, admission of the evidence would not bring the administration of justice into disrepute and would enhance the truth-seeking function of the trial.

APPLICATION to exclude evidence.

Cases referred to R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; [page211] R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, 246 C.R.R. (2d) 1, 285 O.A.C. 25, 278 C.C.C. (3d) 157, 98 W.C.B. (2d) 496, apld R. v. Little, [2009] O.J. No. 3278 (S.C.J.), consd Other cases referred to R. v. Caslake, [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 155 D.L.R. (4th) 19, 221 N.R. 281, [1999] 4 W.W.R. 303, J.E. 98-217, 123 Man. R. (2d) 208, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, 48 C.R.R. (2d) 189, 37 W.C.B. (2d) 81; R. v. Church of Scientology (No. 6), [1987] O.J. No. 64, 18 O.A.C. 321, 31 C.C.C. (3d) 449, 30 C.R.R. 238, 2 A.C.W.S. (3d) 292, 1 W.C.B. (2d) 327 (C.A.), varg (1985), 21 C.C.C. (3d) 147, 15 C.R.R. 23 (H.C.J.); R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342; R. v. Guo, [2009] O.J. No. 1816, 2009 ONCJ 184, 189 C.R.R. (2d) 355; R. v. Manley, [2011] O.J. No. 642, 2011 ONCA 128, 228 C.R.R. (2d) 45, 275 O.A.C. 81, 269 C.C.C. (3d) 40; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 207 C.R.R. (2d) 153, 399 N.R. 200, EYB 2010-171050, 2010EXP-1068, J.E. 2010-576, 252 C.C.C. (3d) 273, 316 D.L.R. (4th) 1, [2010] 4 W.W.R. 193, 72 C.R. (6th) 208, 346 Sask. R. 1, 86 W.C.B. (2d) 949; R. v. Scotland, [2007] O.J. No. 5305, 76 W.C.B. (2d) 307 (S.C.J.); R. v. Sonne, [2012] O.J. No. 1753, 2012 ONSC 1755 (S.C.J.); R. v. Sonne, [2011] O.J. No. 5357, 2011 ONSC 6734 (S.C.J.); R. v. Sonne, 2012 ONSC 584 (S.C.J.); R. v. Sonne, 2012 ONSC 573 (S.C.J.); Worrall (Re), [1965] 1 O.R. 527, [1964] O.J. No. 890, 48 D.L.R. (2d) 673, [1965] 2 C.C.C. 1, 44 C.R. 151 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 443(b), 487(1) [as am.], (b), (2.1), (2.2), 489 [as am.], (1)

Elizabeth Nadeau and Stephen Byrne, for Crown. Joseph Di Luca, Peter Copeland and Kevin Tilley, for Byron Sonne.

SPIES J.: -- Introduction and Issues

[1] Byron Sonne brought various applications at the outset of his trial, including this s. 8 Canadian Charter of Rights and Freedoms application to exclude evidence found on computers that were seized from his residence and searched by police. On December 12, 2011, I advised counsel and Mr. Sonne that I had decided to dismiss this application and that I would provide my reasons in writing. These are my reasons.

[2] The warrants to search [address omitted], the residence where Byron Sonne lived with his wife, dated June 22 and 23, 2010 both authorized a search of computers for records relevant to a conspiracy charge. Following my initial rulings on the applicant's Garofoli application [R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 1155], [page212] I decided that the conspiracy charge and the term in the warrants permitting a search for evidence specifically related to that charge, as well as the mischief charge, should be severed from the warrants as I found that these charges were not supported by the Information to Obtain ("ITO"). [See Note 1 below] The warrant to search dated June 23, 2010 contained additional charges, including possession of an explosive substance, which I found to be properly supported by the ITO. [See Note 2 below] That warrant permitted a search for and seizure of "records relating to the production of explosives that [are] retained through files, books, reports, notes, copies, memoranda, correspondence, applications, agreements, information, which can be stored electronically (computers, phones), or on paper".

[3] During the execution of the warrants to search Mr. Sonne's home, the police seized three computers, five external hard drives and a collection of wireless networking equipment. Only records from one hard drive form the basis of the evidence the Crown wishes to tender as part of its case. This hard drive was from the applicant's main computer.

[4] The search warrants did not expressly authorize the seizure of computers and the removal of those computers from [address omitted]. Rather, they authorized a search for and seizure of certain types of electronic records on specified devices, including computers, and during a fixed time frame, namely, until 9:00 p.m. on June 27, 2010.

[5] It is the position of Mr. Sonne that his s. 8 rights were breached by the seizure and search of the computers and that all evidence resulting from the search ought to be excluded pursuant to s. 24(2) of the Charter.

[6] The Crown has conceded that the warrants did not authorize the seizure of the computers and their removal from Mr. Sonne's home but takes the position that the seizure was justified under s. 489(1) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown also conceded that the computers were searched outside of the time frame specified in the warrants and that this amounted to a breach of s. 8 of the Charter. As such, the onus was on the Crown to prove that the search was reasonable. It was submitted on behalf of the Crown that it was and that the evidence obtained as a result should not be excluded in any event. [page213] The Evidence

[7] I heard from the various officers involved in the seizure and search of the computers and, in addition, I was asked to consider the evidence given by D.C. Ouellette at the preliminary inquiry, which was primarily directed to what was in the report he instructed be prepared for trial which contains the items seized from Mr. Sonne's computer. In addition, with the co-operation of counsel, a statement of agreed facts was also filed.

The seizure of the computers

[8] Detective Constable Maniquis was the scene manager for the execution of the search warrants for [address omitted]. His role was to oversee the search team and to see that the warrants were executed and the items seized were listed in the appendices to the warrants. D.C. Maniquis understood that Mr. Sonne's arrest pertained to the G20 and before he attended [address omitted] he conducted his own open online computer search to see what he could find on the keywords of TorontoGoat and Byron Sonne. He found a few things that pertained to the G20 that were posted on a few social media websites like YouTube and Twitter and a blog. He prepared a social media report and submitted it into the system. When he attended at [address omitted], he advised the officers containing the scene of what he had found on the Internet so that they would have a better background of what they were going in to search for. D.C. Maniquis and the search team read the June 23 warrant with the two appendices but did not have the ITO.

[9] With regards to the computers in the home office, it was D.C. Maniquis' decision to seize them. He felt the computers needed to be seized so they could extract the evidence for court later. Before D.C. Maniquis authorized the seizure of the various computers and hard drives, there was no review of the contents of any of these items and no effort was made to search the computers on site. No one on the search team was qualified to do that kind of search on the computers. D.C. Maniquis testified that they did not want to take the risk of losing any information by trying to log on to these computers. In his experience, a lot of people put fail-safes on computers, password locks or software that can wipe a whole hard drive if they were to try to enter it or even unplug the computer from the wall. As a result, no one on D.C. Maniquis' team touched the computers. He called an advisor from the RCMP's Technical Crimes Unit ("TCU") who sent in some of her people to seize the computers on June 24, 2010. At this point, there were still three days left on the search warrants. [page214]

[10] D.C. Maniquis was questioned at length about his understanding as to his authority to seize the computers. In his evidence-in-chief he testified:

It was in plain view to me. I just felt that on the Appendix it said the computers and any digital storage devices, so these were in relation to the explosives charges. So, to me, I felt that a computer can have a lot of information held on it for explosive devices instead of the old books that I think would be relatively large or cumbersome, and the resources on the Internet and stuff like that are also accessed through a computer. (He had noted that there were a few books on the shelf on science and physics.)

[11] In cross-examination when D.C. Maniquis was taken through the terms of the warrants in detail by Mr. Copeland, he was asked again what he understood the warrants to mean in terms of his authority to deal with the computers and other electronic data devices. He testified that when it came to computers and these other devices it was "our practice that we seize that and we deliver that to our computer guys so they can properly examine the item and take what is necessary". He was asked if it was his understanding when he reviewed the warrants that it authorized him to search for and seize computers and he responded: "yes, reading the warrant as a whole". When Mr. Copeland asked him directly whether he understood the terms in the warrants relating to the search for records on computers to mean he could seize the computers, D.C. Maniquis answered: "to me the computer has the record on it and the best way for me to extract evidence without the risk of losing it was to seize the computer".

[12] D.C. Maniquis was asked by Mr. Copeland how he would know that the record of the nature he was looking for was on the computer without looking at the computer. To this, D.C. Maniquis responded that through his earlier open source research he had found over 200 photos uploaded to Flickr so other people could look at them through blogs. Knowing the digital aspects of how these digital pictures showed up and how the YouTube videos were uploaded, to him the computers were the devices used to author those photos and videos for the whole world to see and to access Mr. Sonne's blog. D.C. Maniquis admitted that he did not have any information at the time that the particular blog and social media sites had been updated and maintained by a computer within the address of [address omitted] but he believed that if something is posted on a blog or on Flickr, that it would be recorded in someone's computer and that either what was typed or the pictures would be on the [page215] computer. He agreed that he thought it was possible that those records would be on the computers.

[13] After further questioning by Mr. Copeland, D.C. Maniquis confirmed that he did not use s. 489 of the Criminal Code in relation to the seizure of the computers as he believed the seizure of the computers was covered by the search warrants. In D.C. Maniquis' report to the justice, he did not check off the box that says "acted under the authority of section 489 of the Criminal Code in the execution of a warrant . . ." and in that report he reported that everything that was seized, including the computers, was seized under the search warrants.

[14] In re-examination, Ms. Nadeau pointed out to D.C. Maniquis that he had indicated both in chief and several times in cross that he believed his authority to seize things was either under the warrants or what he called plain view and what Mr. Copeland referred to as s. 489. He agreed with this. He was then asked if, in his experience, he had ever filed separate returns based on whether the items were seized under s. 489 or under the warrants specifically. He said that he only used the one form. This begs the question of whether or not he would in those circumstances check off both boxes. In any event, he was clear that he did not rely on s. 489 when he seized the computers.

The search of the computers

[15] D.C. Ouellette was seconded to the Integrated National Security Enforcement Team ("INSET") with the RCMP in June of 2010. At the time of the G8 and G20, INSET's mandate was very strict in investigating matters of national security. When the case involving Mr. Sonne came to light, it was decided that INSET would parallel the Toronto Police investigation and offer assistance in the possibility of it becoming a national security investigation. The possibility of explosives at that time initiated INSET's involvement. D.C. Ouellette testified that they understood the investigation involved a potential attack on the summit itself. He eventually became the file coordinator to assist Detective Bui in this investigation. In addition, he acted as lead investigator from the national security side.

[16] D.C. Ouellette was not involved in the seizure of the computers but understood from discussions with Detective Bui that they had been lawfully seized on the basis that they were in plain view. He did not understand that the warrants authorized the seizure of the computers. He testified it would not have been possible to search the computers in the residence. This evidence was not challenged. [page216]

[17] After seizure of the computers and related items by the Toronto Police, given their limited resources and certain computer equipment that they had not yet received training in, these items were brought to the TCU in London, Ontario on June 29, 2010. D.C. Ouellette testified that the TCU does not investigate the crime per se, but rather breaks down the data on the computer for an investigator who has knowledge of the entire investigation, which in this case I understand was D.C. Ouellette.

[18] D.C. Ouellette had the search warrants and a report from the Open Source Criminal Investigative Section of INSET that had found that Mr. Sonne was operating under two different e- mail addresses and using different monikers on the Internet. He testified that some of this information caused him concern. He learned from this report that Mr. Sonne had used torrents [See Note 3 below] providing access to "Practical Pyrotechnics", "Ragnar's Guide to Home and Recreational Use of High Explosives" and "Setting Fires with Electrical Panel Timers" in addition to other information, including uploads involving the prophet Mohammed of a racist nature and publications by the Earth Liberation Front, which he understood engaged in black bloc tactics and antigovernment raids. He was also aware of blog sites and Mr. Sonne's Twitter and Flickr accounts with many recent posts that were anti-security in nature, including how to scale fences and tamper with surveillance cameras. He testified that the fact Mr. Sonne had tweeted about a design flaw in the G20 fence increased the threat level. They believed that Mr. Sonne was potentially in possession of an electronic counter measure device that could potentially knock out telecommunications, which was viewed very seriously.

[19] As for the search warrants, D.C. Ouellette understood that the term in the warrants authorizing a search for items related to co-conspirators meant that he could search for and seize records of the names and phone numbers of anyone that Mr. Sonne had dealings with, including any communications he had with anyone. He had a broad view of the conspiracy charge which he believed included not only a conspiracy with respect to the named offences, but any conspiracy to commit any of the named offences in the future as well. What he was particularly [page217] concerned about was a conspiracy to set off a bomb or do something else to disrupt the summit. He saw the charges as interwoven with a common theme surrounding the summit. As for a search on computers for "records relating to the production of explosives", D.C. Ouellette testified that he interpreted that quite simply as files relating to the production of explosives. He would not have taken a different approach if the warrants had only said "records relating to explosives".

[20] On June 29, 2010, D.C. Ouellette provided the computer- related items seized from the applicant's home to Corporal Ian Lee of the RCMP's TCU. From June 30, 2010 to July 7, 2010, Corporal Lee removed the hard drives from the computers and made forensic copies of the data for further analysis. All of the hard drives were copied and examined, including the hard drive from the applicant's main computer. According to Corporal Lee, Mr. Jeff Letch, a civilian member of the TCU, assisted with this process. Corporal Lee and Mr. Letch are both computer analysts, not investigators. Their job was to prepare the computer data for review by the investigator; in this case, D.C. Ouellette.

[21] On July 7, 2010, Corporal Lee wrote an e-mail to Chris DeGale of INSET requesting a copy of the form 4074 or the search warrant. He stated he needed these documents "to further analysis" (sic).

[22] On or about July 9, 2010, the form 4074 and a copy of the search warrant were provided to Corporal Lee and Mr. Letch. It is an agreed fact that on July 16, 2010, Corporal Lee began an automated search through the contents of the applicant's hard drive on the basis of a list of keywords created by Mr. Letch and that that search was completed on July 19, 2010 and generated a list of files matching the search criteria. Neither Corporal Lee nor Mr. Letch were asked about this step when they testified. They did not testify that they reviewed any records based on this automated search.

[23] Corporal Lee testified that he did not see any restrictions in the warrants as to the types of records he could search for but he felt he needed to get directions from D.C. Ouellette to know exactly what he was looking for and so, on July 23, 2010, he wrote to D.C. Ouellette with the following query:

Before we proceed to further examination of items you brought to us, we like to know what type of specific data you are looking to support your charges, like picture and videos of g20 site, file upload data and so on.

Please advise me of more specifics of data you are looking for further analysis of exhibits [sic]. [page218]

[24] On July 23, 2010, D.C. Ouellette replied to Corporal Lee's inquiry with the following:

Ian we are looking for all video, photo and discussion of the G8 G20 (fence or other)

all torrent uploads as identified in the open source report

any and all document, data relating to the toronto community mobilization network

any and all downloads/uploads of explosive material/bomb making data

email contact lists for cross reference in relation to identified anarchists that were active during the summit

any "anarchy" related reading material

jokes, blogs, documents or other data of a racist nature

[25] D.C. Ouellette provided Mr. Letch and Corporal Lee with these keywords to facilitate their search and to assist them in creating certain bookmarks to facilitate the investigation later on. He testified that he asked for the searches to include terms like the Toronto Community Mobilization Network because part of the investigation was also related to a conspiracy. The Toronto Community Mobilization Network had been identified long before the summits as a potential source of problems and this group was believed to be involved with the black bloc activities. Being able to prove the conspiracy meant looking for contacts and other groups that would be related to Mr. Sonne. In part, the keywords were geared to establish the network or group that Mr. Sonne might potentially be operating with in relation to the conspiracy. D.C. Ouellette went on to say that lists of people would assist in trying to prove not only the charge of conspiracy but would also be possible sources of instruction or material that would have related to the wave cannon or explosives.

[26] As part of D.C. Ouellette's training with the National Security Investigative Team, he testified that he is aware of terrorism pre-incident indicators in relation to terrorism and terrorism offences and one of the primary areas of their expertise is researching ideology and "the reason why". His evidence was that primarily what the keywords were to do was locate ideology or belief or drive or motive behind the desire to create or set off an explosive device. This is sometimes an ideology based on a religious motive or an anti-government sentiment. This is also why he was looking for jokes, blogs, documents and other data of a racist nature. Heads of state reflecting all sorts of different ethnic groups were coming to the summits and he had [seen] some information on Mr. Sonne's Flickr and Twitter [page219] accounts that he felt gave him reasonable grounds to consider a racial motivation.

[27] Late July or early August 2010, Mr. Letch started what he called "traversing the directory structure", which he described as going through and seeing what was on the hard drive "in general" and relating it to the terms provided by D.C. Ouellette. He described this as a search for the "keyword hits" or search terms. He said that once that was completed and they had documents or sections of the hard drive that might contain those keyword hits, they would quickly go through all the items that came up to see what needed further attention and that would be tagged. A search could turn up zero hits or several thousand and not be helpful. His search generated a large list of files that matched the search criteria. Corporal Lee also testified that he looked at files in deciding whether or not to flag them and that he did so based on the e-mail instructions from D.C. Ouellette, not the investigation itself.

[28] Over the following two months, Corporal Lee and Mr. Letch reviewed the files generated by the search and tagged files that appeared to be relevant. It is an agreed fact that Corporal Lee and Mr. Letch conducted an "extensive search" through the computers and related storage media but the agreed facts do not go on to explain what this means. Based on the evidence of Corporal Lee and Mr. Letch, it seems their review was a matter of looking at the files that contained the keyword hits and deciding whether or not to flag them for D.C. Ouellette. This is also consistent with the evidence of D.C. Ouellette, who testified that he believed that Corporal Lee and Mr. Letch would not have reviewed all of the materials on the hard drives, but rather would have searched based on the keywords he had provided and then identified those files relating to the keywords. Those files would have been quickly reviewed and bookmarked by these analysts for his review.

[29] The RCMP uses a software program called EnCase which permits the investigator to review the contents of the computer and checkmark items. Mr. Letch testified that a document could be hidden by misnaming it and calling it a .jpg but that the EnCase program can do a file signature analysis to check the type of files. Files that are not labelled correctly will normally be flagged. Corporal Lee confirmed some of this evidence. D.C. Ouellette was not asked about EnCase. There is no evidence to suggest that the EnCase software can determine what the actual contents of a file are and whether or not certain information is hidden within a file. [page220]

[30] Commencing on October 13, 2010, D.C. Ouellette attended the TCU and examined the contents of the applicant's computers. He is not a computer expert. He had read a copy of the warrants and had an opportunity to speak with Detective Bui and so he had a good working knowledge of the investigation. He spent almost three weeks searching through the entire contents of the applicant's hard drives and other devices save for a portion of the data on a computer that, by the hearing of this application, had not yet been accessed by police. It is encrypted and to date the RCMP has not been able to crack the encryption.

[31] Although D.C. Ouellette searched through the files tagged during the search conducted by Corporal Lee and Mr. Letch, his search extended to the complete contents of the hard drives. D.C. Ouellette testified that he considered the bookmarked files like a "cheat sheet" which he could quickly go through but notwithstanding this work done by Corporal Lee and Mr. Letch, he searched everything because he had no way of saying, based on the name of a file, what content would be behind it. He testified that it would be unlikely that a person building a bomb would label his file "bomb file" or "intended target". He did not think that there was any kind of file that he did not have authorization to view as he had a valid warrant to search the computers and on reasonable grounds believed that there would be information on any and all files. D.C. Ouellette testified that it is the practice in all of their investigations in the Integrated TCU that the investigator in charge of the file review the entire hard drive even where an analyst has bookmarked certain files.

[32] Mr. Copeland reviewed with D.C. Ouellette the various torrent files he included in his report of items seized from Mr. Sonne's computer. These included a torrent file to Ragnar's Guide to Home and Recreational Use of Explosives and a link to U.S. nuclear sites which he considered might be a target for an explosion. As another example, he was referred to Assassination Politics, which was a piece of ideological literature which in his view potentially identified targets for an explosion relating to the G20, a document about setting fires and the G20 fence which he also considered a target of any produced device. His concerns were not limited to the G20 as there were other targets of interest within the Greater Toronto Area that have been considered targets by terrorist groups.

[33] In addition to the torrent files, as D.C. Ouellette was going through e-mails, he came upon some receipts related to chemicals that he bookmarked. He bookmarked photos as well of a microwave or some type of electronic device believed either to be a wave cannon or a potential timer related to production of [page221] some type of explosive device. Another file was bookmarked because it linked the identity of the author of the TorontoGoat blog to Mr. Sonne.

[34] Mr. Copeland took D.C. Ouellette to certain e-mails that he decided to seize from the computer. D.C. Ouellette explained that he had reasonable grounds to believe that one e-mail related to a club and anyone listed there could potentially be involved and a member of the conspiracy they were investigating as they had reasonable and probable grounds to believe that Mr. Sonne was conspiring. Another was an e-mail from Mr. Sonne to members of the Hacklab group discussing circumstances surrounding the G8/G20. Another e-mail related to discussions by Mr. Sonne concerning torrents that specifically related to explosives. In addition, there were e-mails from Mr. Sonne to the Toronto Community Mobilization Network where Mr. Sonne appeared to have joined the group and offered his services.

[35] During the course of his review, D.C. Ouellette came across files that he believed were relevant but not specifically set out in the warrants. He gave, as an example, U.S. and Canadian military documents. He bookmarked these files for seizure on the basis that they were in plain view.

[36] D.C. Ouellette testified that even if there had not been a conspiracy charge in the warrants, he still would have searched the entire computers. He considered the other offences as part of the conspiracy charge but the specific unlawful purpose that he had in mind was setting off a bomb near the G20 fence line.

[37] D.C. Ouellette was not asked about how quickly he reviewed individual items on the computers. He did testify that he reviewed an external hard drive which contained only movies and that although he did not watch the movies he had to "flip through each" to make sure the content was not something other than what was listed. At the preliminary inquiry in February 2011, he testified that if he had reviewed every document on the computers the defence would still be waiting for disclosure.

[38] D.C. Ouellette bookmarked items in addition to the items bookmarked by Corporal Lee and Mr. Letch and removed a small number of their bookmarks; mostly, items he found were duplicates. His bookmarked items located on the applicant's hard drive were then provided to Corporal Lee and Mr. Letch, who converted those items into a viewable report. That report was subsequently copied onto a hard drive which has been filed as an exhibit.

[39] D.C. Ouellette denied bookmarking items that he did not have reasonable grounds to believe would afford evidence of a [page222] named offence or that in his review he had used a standard of "not clearly irrelevant". As for a cover letter to his report prepared by Corporal Lee, which is at odds with this, D.C. Ouellette testified that he did not pay much attention to it.

[40] D.C. Ouellette acknowledged that the search of the encrypted part of the imaged hard drives from the computers was ongoing. As for the time limit in the warrants, he testified that they could "dance around the semantics of what the search actually is" but that some would say the decoding of information is a search and that it is ongoing. In his view, if he had to look at the information again in connection with the charges in the warrants, he could do so but not for new charges. He was not asked to explain this evidence in light of the timeline on the warrants. Mr. Letch saw the time frame in the warrants but did not see it as significant in terms of what he had to do and Corporal Lee was not asked about this.

[41] The contents of D.C. Ouellette's report were reviewed in some detail at the preliminary inquiry and, although there were no specific submissions addressed to this evidence, I did consider this evidence on this application as requested by Mr. Copeland. Without detailing it here, I concluded in general that all of the records seized from the computers could reasonably be considered to afford some evidence of the possible planning of an attack at the G20 or otherwise causing serious disruption to security at the summit. In addition, there are a large amount of e-mails with the same themes including evidence of Mr. Sonne's involvement in groups such as the Toronto Community Mobilization Network. Analysis

The seizure of the computers

[42] It is not clear from the evidence as to whether or not D.C. Maniquis, in fact, seized the computers because they were in plain view or because he believed he had the right to do so based on the terms of the warrants to search. Considering all of his evidence, it seems most likely that, at the time, he acted on what he believed was permitted by the terms of the warrants. He was clear that he did not rely on s. 489 of the Criminal Code.

[43] Mr. Byrne submitted on behalf of the Crown that even if D.C. Maniquis misconceived the source of his authority to search, the Crown can still rely upon s. 489 of the Criminal Code and that the requirements of that section were met and justify the seizure of the computers. The position of the applicant is that D.C. Maniquis' evidence did not rise to the level of [page223] expressing a belief that the computers "would" afford evidence and that in any event the subjective belief of the officer at the time as to his authority to seize is what governs. In this regard, the applicant relied on R. v. Scotland [See Note 4 below] for the proposition that the existence of other legal authority not subjectively relied upon by the seizing officer is not relevant to the determination of whether the seizure was lawful. It is Mr. Byrne's position that this aspect of the case was not correctly decided and was based on a misinterpretation of R. v. Caslake. [See Note 5 below]

[44] I have concluded that it is not necessary for me to decide this issue because I accept the submissions of the applicant that the police should not, in the circumstances of this case, have been permitted to rely upon s. 489 or the plain view doctrine to seize the computers and related items. The warrants expressly permitted a search for certain types of electronic records on computers and other electronic devices and in his ITO, prepared in support of the June 23, 2010 warrant, D.C. French expressly referred to the observations of Detective Sukumaran on June 22 that there were computers within the residence at [address omitted]. Nonetheless, the issuing justice issued the second warrant in terms that only permitted a search for electronic records, not seizure of the computers.

[45] In my view, to allow the police to seize the computers pursuant to s. 489 or the plain view doctrine would conflict with the terms of the warrants and the discretion exercised by the issuing justice. Although this is not a case where the issuing justice decided to exclude computers from the list of items to be seized, given that the power to seize the computers could have been requested by D.C. French, I agree with the comments of G.A. Campbell J. in R. v. Guo [See Note 6 below] and their application to the case at bar [at paras. 54-56]:

While the police must be afforded the opportunity to seize evidence associated with the commission of an offence, it seems to me that the parameters of s. 489 must be measured against the exercise of judicial discretion to order or refrain from ordering the seizure of certain items. To this end, in the absence of special circumstances, such as a situation where the public would be at risk or the opportunity to secure evidence would be lost or where the thing found is in and of itself clearly related to criminal activity, the direction given by the warrant must be followed and where necessary, [page224] the premises may be secured until further direction or authorization can be obtained to seize the items. To do otherwise would equate to transferring judicial discretion and serve to undermine the process. . . . . .

The plain view doctrine and the provisions of s. 489(1) cannot be relied upon as a mechanism to override a clear direction given by the Justice who issued the warrant. In the absence of appropriate circumstances, none of which were present here, the officers had a duty to comply with the terms prescribed in the warrant.

[46] I should add that given the police knew Mr. Sonne had computers in his residence, the discovery of computers at his home could not be considered inadvertent, a pre-condition to reliance on the plain view doctrine.

[47] On a review of all of D.C. Maniquis' evidence, I find that his decision to seize the computers was really because he understood the warrants to confer a power to seize the physical computers so that they could be searched. As part of his submissions, Mr. Copeland argued that the computers should be considered "receptacles" of data and that such an interpretation is consistent with the observations of Blair J.A. in R. v. Jones [See Note 7 below] that, like a place or home, a computer is a storage repository for a great deal of information about an individual. I agree. In my view, this assists in understanding D.C. Maniquis' evidence. In his elaboration on this point, it appears that D.C. Maniquis was of the view that the express power in the warrants to seize the information contained on the computers, namely, the computer data, gave rise to an implicit or ancillary power to seize the receptacle containing the data, namely, the computers, and remove them from the residence so that they could be searched. Strictly speaking, such an understanding of the terms of the warrants was incorrect although understandable in my view. Although a strict reading of the warrants required the police to search the computers within the residence at [address omitted] and within certain time limits, that would not have been practicable. Although such a search is permitted pursuant to s. 487(2.1) and (2.2) of the Criminal Code, for obvious reasons searches of this nature are generally performed off- site and post seizure. [See Note 8 below] I expect that is particularly so where the computers are located in someone's residence. Given the evidence of what was required in this case to search the computers, that clearly could [page225] not have been accomplished in the four days permitted by the warrant, and to have proceeded in this manner would have significantly impacted on the privacy interests of the those persons who resided at [address omitted].

[48] In R. v. Church of Scientology (No. 6), [See Note 9 below] Justice Osler was faced with a multitude of issues arising from the seizure of 864 boxes containing 39,000 file folders which, in turn, contained approximately 2 million documents; not unlike the volume of material that could be found on a personal computer. Although the search occupied 20 hours of time and was executed by 100 members of the Ontario Provincial Police, he recognized that no detailed analysis of the searched material could have been made under these circumstances in such a way as to afford the officers executing the search complete certainty that what they were seizing came within the authorized description in the warrant. In fact, by the time of argument the analysis of the material was not yet complete: at p. 177 C.C.C. The issue of whether or not the officers were required to first "search then seize" as opposed to "seize then search" the documents arose in the context of the various issues raised with respect to the motion to quash the search warrant. In that case, 30 per cent of the entire contents of the Scientology office had been removed, which the court found caused grave difficulty to the office in carrying on daily legitimate activities.

[49] Osler J. held that s. 443(b) of the Criminal Code, the predecessor to s. 487(1)(b), did not permit a seizure at large, followed by an analysis of what had been seized and a retention of that which was found to come within the authorization to search: at p. 171 C.C.C. However, with respect to the "search then seize" argument, Osler J. noted that "the continued presence for days, weeks and possibly even months of a large number of searchers in the office would cause even greater disruption": at p. 178 C.C.C. He went on to find that provided the seizing body acted in good faith and continued to set aside, for return to the applicant, material that was found on more careful examination not to be included within the things authorized, that he was satisfied that the rule of "search first and then seize" had been followed as well as it reasonably could be in the circumstances. This was despite the fact that by the time of the hearing of the motion approximately 25 per cent of the seized documents had been returned, presumably because they [page226] contained no evidence of a crime. On appeal, [See Note 10 below] the Court of Appeal did not deal with this issue save to say that the argument that there had been a seizure and search rather than a search and seizure related to the reasonableness of the search and not the validity of the warrant (at pp. 516-17 C.C.C.).

[50] In Jones, the police had the authority to seize the computer and although there are not many cases on point, this seems to be the norm in the case of personal computers. Blair J.A. noted that, "[i]n effect, the warrant contemplated a two- staged search: first, for the computer and related devices, and secondly a search of the contents of the computer for evidence relating to the email transmissions and the counterfeit images in question": at para. 33, emphasis added. He concluded that this was not too broad implicitly recognizing the need to seize the computer in order to search it in accordance with the terms of the warrant. Presumably, the same rationale would have permitted D.C. French to draft a warrant authorizing seizure of the computers in this case.

[51] The Crown conceded that the warrants did not permit a seizure of the computers and removal from the residence. In light of this concession and my conclusion that s. 489/plain view could not have authorized the seizure of the computers, I find that there was a breach of s. 8 of the Charter when D.C. Maniquis decided to seize the computers so that they could be searched off-site. However, the decision to seize the computers by D.C. Maniquis was not unlike the dilemma faced by the officers in Church of Scientology. His decision to seize the computers so that they could be searched off-site is understandable in light of the fact the warrants authorized a search of those computers for certain records and the impracticality of searching for those records on the computers in the residence. I find it was not a decision he made in bad faith.

[52] Although I find that the seizure of the computers was a breach of Mr. Sonne's s. 8 Charter rights, this specific breach was limited to the geographical location of where the computers would be searched. The location of the search did not impact on any privacy interest per se. A search of the computers in the residence would never have been practical and would have caused a significant invasion of privacy over a prolonged period of time. For these reasons, I conclude that the fact the computers were seized and then searched in London was, in and of itself, not a serious breach of s. 8. The real issue in my view is whether or [page227] not the actual search of the computers was reasonable and in accordance with the terms of the warrants and the law.

The search of the computers

[53] The Crown conceded that due to the fact that the search of the computers occurred outside the time frame specified in the warrants, the search was conducted in violation of s. 8. The remaining issue then is whether, as submitted by the applicant, the manner in which the computers were searched was unreasonable. Counsel agreed that in assessing the police conduct in searching the applicant's computers, I am bound by R. v. Jones.

[54] In Jones, Blair J.A., speaking for the court, made it clear that given the highly private and confidential personal information that can be expected to be found on personal computers, the search of a computer pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant: at para. 42. In Jones, the warrant did not contain any restriction on the types of computer files that could be searched and as Blair J.A. observed, authorized "unlimited access to the computer's files and folders in order to accomplish its search objectives": at para. 42. Instead, in Jones, the warrant focused on the type of evidence the police could seek, namely, evidence of fraud, and, in particular, evidence relating to e-mail transmissions and the counterfeit images in question and the crimes to which that evidence related, namely, possession of stolen property and forgery: at paras. 9, 24, 33 and 43.

[55] Blair J.A. held that the focus in a warrant on the types of evidence being sought as opposed to the type of files that may be examined is helpful in cases where it may be "necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged": at para. 43. He went on to hold that [at para. 44]:

To the extent they [the police] are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking[.]

[56] In the context of the EnCase software, Blair J.A. stated [at para. 50]:

The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user's privacy rights in other information [page228] stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.

[57] On the issue of seizure based on "plain view", after a review of authorities from the United States, Blair J.A. adopted the "cursory review" approach in R. v. Manley [See Note 11 below] and concluded that "[o]nce a file is opened by the computer programmer using the software, its contents can be read, and 'plain view' comes into play": at para. 64.

[58] In R. v. Little, [See Note 12 below] Fuerst J. accepted the evidence of the officers that different kinds of files, including audio, video, graphic and some types of Internet files could constitute "communications" and at least potentially fall within the bounds of the warrant. She also accepted the testimony of the officers that while a keyword search could confine the number of files that an officer reviews to those containing the keyword or combination of words, searching by keyword is imperfect. She also accepted that file names alone are not necessarily indicative of their content. She concluded: "On the evidence in this case, a manual search by which each file was opened and looked at cursorily to determine whether it fell within the parameters of the warrant was not unreasonable, if the reviewing officers immediately closed those files that clearly fell outside the warrant and moved on": at para. 166.

[59] In applying the law as set out in Jones to the facts of this case, the first question is whether or not any type of file on the computers should have been off limits to the officers doing the search. Mr. Copeland argued that the terms of the warrants excluded a search for images but I disagree. In Jones, the police had concluded that it was only necessary to search all document and image files for evidence of fraud and, in particular, that it was not necessary to search video files. In the case at bar, the warrants permitted a search for and seizure of "records relating to the production of explosives that [are] retained through files, books, reports, notes, copies, memoranda, correspondence, applications, agreements, information, which can be stored electronically (computers, phones), or on paper". The use of the term "information" is very broad and any kind of record can be stored electronically. Furthermore, I accept the evidence of D.C. [page229] Ouellette that it would be possible if not likely that someone intent on making an explosive device would try to hide information related to the production of explosives and that, as such, there is no type of record that could not contain information related to the production of explosives. For these reasons, I find there was no limitation in the warrants as to the type of file that could be searched for on the computers. Accordingly, the police were entitled to do a cursory search of every file on the computers, regardless of type, and that any search could include photo and video files.

[60] The next question then is whether or not the review of Mr. Sonne's computers could be considered a cursory review. Mr. Copeland submitted that the search terms provided by D.C. Ouellette to Corporal Lee and Mr. Letch suggest an intention by the police to conduct a broader search than what was authorized by the warrants and that they suggest that the search of the computers would be governed by the criterion of relevance to the investigation. I do not accept this submission. D.C. Ouellette had a reasonable explanation for why he chose the search terms that he did, which in my view is consistent with a reasonable interpretation of "records relating to the production of explosives".

[61] In my view, the police were entitled to do a cursory review of every file, of any type, on Mr. Sonne's computers before deciding whether or not to seize a particular file. In this case, D.C. Ouellette enlisted the help of Corporal Lee and Mr. Letch. Having considered all of the evidence, I find that those searches were limited to keyword searches based on the keywords provided by D.C. Ouellette. They then reviewed the files that turned up as a result of those keyword searches. Even if they then bookmarked files for review by D.C. Ouellette based on a broad view of what might be relevant, they were not involved in the decision to seize particular files. Any review of the results of their searches was cursory to generate bookmarks to facilitate his review. There is no dispute that neither Corporal Lee nor Mr. Letch was expected to make the ultimate decision as to what would be seized. They were not investigators, only analysts to assist D.C. Ouellette, who had no computer experience, who was the one who would decide what should be seized from the hard drives. I, therefore, have no issue with the cursory review of the hard drives and tagging of items for D.C. Ouellette's review that was done by Corporal Lee and Mr. Letch.

[62] In Little, Fuerst J. found that the search was too broad in that it was governed by the criteria of "relevance to the investigation" and that files had been bookmarked if they were thought to be of evidentiary value to the investigation, whether they fell [page230] within the parameters of the warrants or not. This included bookmarking files representing Internet searches which were clearly not communications. I presume she was referring to the files that had actually been bookmarked and seized for the purpose of evidence. In the case at bar, however, it was D.C. Ouellette who reviewed what had been tagged by Corporal Lee and Mr. Letch, and he was the person who decided what would be bookmarked for the purpose of the actual seizure of files from Mr. Sonne's computer and for the purpose of generating the report that was prepared for trial. The critical question I must consider is whether or not D.C. Ouellette's search of the computers was reasonable in all of the circumstances, given the terms of the warrant.

[63] Unlike Jones, this is not a case where the police searched the entire hard drives seized from [address omitted] for one crime and decided to search for another, not referenced in the warrants. Mr. Copeland, however, made various submissions in support of the applicant's position that the search was unreasonable.

[64] I have carefully considered D.C. Ouellette's evidence as to the scope of his search of the hard drives. D.C. Ouellette did not give much evidence that explained why he would have Corporal Lee and Mr. Letch do the searches of the hard drives that they did based on keywords he supplied if he intended to look at all the files in any event. His evidence that it is the practice in all of their investigations in the Integrated TCU that the investigator in charge of the file review the entire hard drive even where an analyst has bookmarked certain files and that he only considered the bookmarks generated by Corporal Lee and Mr. Letch to be like "cheat sheets" was not explored by either counsel.

[65] Apart from the question of possible duplication, D.C. Ouellette's explanation for why he examined the entire hard drives, namely, in order to check the content of files, because he had no way of saying based on the name of a file what content would be behind it, is consistent with the rationale adopted in Jones as to why a cursory search of computer files is permitted. Unless particular types of files are clearly not places where information could be hidden, there should be no limit on the files subjected to a cursory search.

[66] Mr. Copeland submitted that computer-automated searches using the EnCase software could have been used to minimize the impact on the applicant's privacy interests. The evidence is that such a program can automatically determine whether the file type of a file has been altered and so I accept the submission that it was, therefore, unnecessary to open every [page231] file to determine what type of file it was. That, however, begs the question in this case as to whether or not information related to the production of explosives could have been hidden in any type of file, including e-mails. D.C. Ouellette's opinion that it could was not challenged. Furthermore, a cursory review of each file in this case is not at odds with what Blair J.A. said about the EnCase software in Jones. In that case, the police had decided that they did not need to look at video files for evidence of fraud. In such cases, it is possible to tailor searches to exclude a particular type of file that does not need to be reviewed. Blair J.A. was, however, quite clear that where an examination of all files or folders on a computer is required to reasonably accomplish an authorized search, the police are entitled to open those files and folders and to examine them in at least a cursory fashion.

[67] The question remains, was D.C. Ouellette's examination of the hard drives cursory? He was not asked any specific questions as to how long he spent reviewing each file but I find that his initial review must have been cursory given his evidence as to the time he spent and the volume of material to be searched. This is consistent with his evidence at the preliminary inquiry and his evidence as to his approach to the movies that he found which he "flipped through".

[68] For these reasons, I find that the search of Mr. Sonne's computers was reasonable and in accordance with the principles of law established by the Court of Appeal in Jones.

[69] The issue that remains is whether or not D.C. Ouellette's approach to what he decided to seize was overbroad and beyond the scope of the warrants. Mr. Copeland took a very narrow view of the meaning of records "relating to the production of explosives" and submitted essentially that this restricted the seizure of records to direct evidence in files specifically referring in some way to the actual production of explosives. On his definition, any circumstantial evidence relevant to explosives or the production of explosives was not covered by the warrants, including any evidence of an intention to use chemicals to produce explosives and possible targets of any explosive devices.

[70] Mr. Byrne submitted that Mr. Copeland was advancing too narrow a definition of what is meant by "will afford evidence" and that this term permitted the police to consider whether or not an item bears upon an issue that is relevant to proving a charge in the warrants. Evidence of an intention to use an explosive device would be evidence that bears on the production of an explosive device especially in a case where actual explosive substances were found. He submitted that Mr. Copeland's view would permit a seizure of only direct evidence and that this is [page232] not correct. D.C. Ouellette was entitled to see if a plan to use explosives existed and he could seize circumstantial evidence related to the production of explosives.

[71] I agree with the approach advocated by Mr. Byrne. I do not accept that the warrants to search should be interpreted as narrowly as suggested by Mr. Copeland. First of all, the words "relating to" must be given their plain meaning; otherwise, the warrants would simply have specified records of the production of explosives. Furthermore, the words "will afford evidence" in s. 487(1) of the Criminal Code do not mean that the record seized will afford evidence sufficient to result in a conviction, just that the record has probative value in that it will afford some evidence which would be relevant to the offence alleged. [See Note 13 below] In addition, the word "evidence" in s. 487(1) of the Code, as a matter of law, must include both direct and circumstantial evidence of the offence; in this case, the offence of possession of an explosive substance.

[72] The definition of an "explosive substance" in the Criminal Code includes anything used or intended to be used to make an explosive substance and any incendiary device itself. As such, in my view, the term "relating to the production of explosives" would include any record that was relevant to the possession of explosive substances or the production of explosives, or an intention or motive to produce an explosive device or, as D.C. Ouellette put it, "the reason why" Mr. Sonne might have possession of explosive substances as that term is used in the Criminal Code. Records related to intention or motive would include records that evidenced Mr. Sonne's involvement with other people who had an interest in disrupting the G20 and the security measures that had been adopted with respect to the summits as well as records related to possible targets of any explosive substance or device.

[73] Mr. Copeland submitted that the evidence of D.C. Ouellette suggests that he approached the search of the computers and the seizure of data on the basis of a standard of relevance or potential interest to the investigation. It was submitted that although he adverted to the standard of "reasonable grounds to believe" in his testimony, that a careful analysis of his testimony reveals that he was applying a much lower threshold -- that of relevance or of the possibility that the item could afford evidence in relation to an offence. [page233]

[74] I do not accept this submission, and in any event, the evidence of D.C. Ouellette must be viewed in its entirety. The same argument advanced by Mr. Copeland could be advanced in connection with the language used by the court in Jones where Blair J.A. repeatedly considered the warrant to authorize a search for "evidence of fraud" using these words loosely as a short form for the more detailed terms of the warrant of what specifically could be searched for. I found D.C. Ouellette to be a very credible witness. He was clear and firm but fair during his extensive cross-examination by Mr. Copeland. In my view, his evidence should not be so closely scrutinized that every turn of phrase is considered to support an argument that the basis for his decision to seize records was too broad. He was clear in his evidence as to the proper standard to be applied and that he had applied it. None of his rationales for seizing any particular item seemed unreasonable or at odds with the standard. In fact, in every case he had a rationale that reasonably tied back to the conspiracy charge or the explosive substances charge and as I have found, those two charges are intertwined. In my view, D.C. Ouellette is a competent and thoughtful officer who took the time to do what he felt was necessary and because of the importance of this investigation, to do a thorough job. I accept his evidence. I do not accept the submission that he was simply searching for general investigative purposes or using an overbroad approach.

[75] Accordingly, since I have found that the police were entitled to do a cursory review of every file on the hard drives, regardless of type, on the evidence of D.C. Ouellette the seizure of records was justified either because they fell within the items to be searched for in the warrants or as a result of the plain view doctrine.

[76] Finally, Mr. Copeland submitted that to the extent that I found that items listed in Appendix "A" and offences listed in Appendix "B" were not supported by the ITO and should be severed out of the warrants, that the "bad" part of the warrants tainted the manner of execution of the "good" part. He submitted that it would be impossible to tease out what the search would have looked like without the "bad" part in the warrants.

[77] I considered this issue in my ruling on the facial validity of the warrants. [See Note 14 below] As I stated in that decision, there has been no suggestion that evidence was seized such as a rolodex identifying Mr. Sonne's contacts, which might be relevant only to the named offence of conspiracy. In fact, I have asked counsel whether or not [page234] any evidence was seized only as a result of what counsel now know I have determined to be the "bad" parts of the warrants, and no submission has been made that this occurred. The inclusion of a charge of mischief appears to have had no impact on the computer search. As for the inclusion of the named offence of conspiracy with respect to any of the other named offences, in my view that would not, based on the terms of the warrants, have resulted in an overly broad search. The object of the conspiracy clearly related back to the other named offences, including intimidation of the police by threatening to destroy security fencing and the cameras set up for the G20. Any evidence of such a conspiracy would also be evidence that could be seized as evidence of records related to the production of explosives as I have defined that term. As set out in that decision, I was not persuaded that the searchers would have conducted themselves differently in any meaningful way had they been presented with only that part of the warrants I have found to be valid.

[78] I have reconsidered my earlier conclusion in light of the evidence of D.C. Ouellette. At the time that he conducted his search, he had presumptively valid warrants which included the conspiracy count. I accept his evidence that even if there had not been a conspiracy charge in the warrants, he still would have searched the entire computers. His rationale for looking at every file would still apply. The question is: would his decision to seize particular files have been materially different? D.C. Ouellette did refer to the conspiracy charge on a number of occasions in explaining why he had seized a particular item. His evidence was that he interpreted the conspiracy charge more broadly than I have concluded is warranted based on the terms of the warrants. However, he was clearly of the opinion, and in my view rightly so, that the conspiracy offence was somewhat interwoven with the offence of possession of an explosive substance and a specific unlawful purpose he had in mind of any conspiracy was that of setting off a bomb near the G20 fence line. In my view, he articulated essentially what I had already concluded as set out above. Evidence related to a conspiracy involving the G20 would also be relevant to motive or intent in connection with the explosives charge.

[79] In my earlier decision, I concluded that to the extent that evidence was seized because it was evidence of both an offence that remains in the valid portion of the warrants and an offence that I have found to be part of the bad portion of the warrants, that the seizure of that evidence was not tainted. In light of the evidence of D.C. Ouellette, it is reasonable to conclude that apart from something specific, such as a list of contacts, he would [page235] have viewed evidence of a conspiracy as also being related to the production of explosives. I do not accept the submission that the material seized by D.C. Ouellette would have been materially different had the warrants not specifically included a conspiracy charge. Furthermore, given that I have rejected Mr. Copeland's narrow definition of the permissible scope of search, D.C. Ouellette's search and seizure, even absent the conspiracy charge, would have been reasonable.

[80] Having concluded that the manner of search and seizure of records was reasonable, I turn to the timing issue and the fact that the search of the computers took place after the time period specified in the warrants. None of the officers who testified were really challenged on this point or asked to explain why they did not consider this to be a problem at the time. From their limited evidence, it appears that they did not appreciate at the time that the search of the computers had occurred outside the time frame permitted in the search warrants. Had they turned their minds to this issue, I expect that they could have obtained an extension of time. I agree with Mr. Byrne's submissions that this was only a technical breach of s. 8. There is certainly no evidence of bad faith or a deliberate disregard of the terms of the warrants by any of the officers that I heard from.

Section 24(2) analysis

[81] Having found that Mr. Sonne's s. 8 Charter rights were breached during the course of the search of the computers found in his residence, a s. 24(2) analysis is necessary.

The test

[82] In R. v. Grant, [See Note 15 below] the Supreme Court of Canada instructed judges, when faced with an application for exclusion of evidence under s. 24(2) of the Charter, to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (c) society's interest in the adjudication of the case on its merits. [page236]

[83] No overarching rule governs how these three groups of factors are to be considered. The court must consider all of the circumstances of the case and determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute: at para. 85. As McLachlin C.J.C. and Charron J. noted in Grant, at para. 68:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather it looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by admission of the evidence.

(a) The seriousness of the Charter breach

[84] This first factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law: at para. 72. This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed "willful or reckless disregard for Charter rights": at para. 74. The court must also consider whether there were "[e]xtenuating circumstances such as the need to prevent the disappearance of evidence" and whether the police acted in good faith: at para. 75.

[85] In my view, the error made by D.C. Maniquis in deciding to seize the computers so that they could be searched off-site did not result in a serious breach of Mr. Sonne's s. 8 Charter rights. It was an error that I have found was understandable in all of the circumstances and that he made in good faith. He testified that seizure was the practice but he was not asked if that was as a result of warrants usually expressly including a power to seize. There was no evidence of any systemic failure of the police to mistakenly presume that warrants such as the ones in this case permitted seizure when they did not. Although D.C. Maniquis' evidence was not entirely clear as to the basis upon which he believed he had the right to seize the computers, he did not deliberately intend to violate the terms of the warrants. He genuinely and reasonably believed that he needed to move the computers off-site so that evidence would not be lost and they could be properly searched. The warrants he had permitted a search of the computers.

[86] As for the time limit in the warrants, as I have already found, it appears that the officers involved in the search of the computers did not appreciate that there was an issue, perhaps [page237] because the computers had been seized within the time frame specified. Like Fuerst J. in R. v. Little, [See Note 16 below] I conclude that the conduct of the officers in this regard was careless but if they had turned their mind to the issue, I expect they could have obtained an extension of time to search the computers. Although in some cases that could be an aggravating factor, in this case there is no suggestion from the evidence that they were reluctant to do so because they feared they would not get such an extension. Based on the very little evidence I heard on this issue, it seems they never considered it necessary.

[87] As pointed out by Mr. Byrne, regard must also be had for the fact that the search of the computers in this case occurred approximately a year before Jones was released, a time in which, as Jones acknowledges, there was considerable uncertainty as to the precise powers of the police with respect to computer searches.

[88] In Jones, Blair J.A. found the breach to be somewhat serious (at para. 94) and, of course, he had concluded that a specific search for child pornography on video files was not authorized by the warrant. Nevertheless, he considered the breach in that case to be more akin to the breach described by Fish J. in R. v. Morelli, [See Note 17 below] at para. 99:

First, the Charter-infringing state conduct in this case was the search of the accused's home and the seizure of his personal computer, his wife's laptop computer, several videotapes and other items. The search and seizure were unwarranted, but not warrantless: they were conducted pursuant to a search warrant by officers who believed they were acting under lawful authority. The executing officers did not willfully or even negligently breach the Charter. These considerations favour admission of the evidence. To that extent, the search and seizure cannot be characterized as particularly egregious.

[89] This factor is stronger in the case at bar. Although technically the seizure and search that was done was not done pursuant to the express terms of the warrants in terms of location and time, the actual search of the computers did conform to the search that was authorized. For these reasons, this factor favours admission of the evidence.

(b) Impact on the applicant's Charter-protected interests

[90] When considering the impact of the breaches on the accused person's Charter-protected interests, according to Grant, [page238] it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was "fleeting and technical" or "profoundly intrusive" and consider the effect of the breach on the accused's human dignity: paras. 76, 78. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: at para. 76.

[91] The interest in informational privacy is particularly strong in the context of a search of a personal computer. As Fish J. noted in R. v. Morelli: [See Note 18 below]

It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.

First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generally by design, but sometimes by accident. [See Note 19 below]

[92] It cannot be said that the particular breaches of s. 8 that I have found had any real impact on Mr. Sonne's Charter- protected rights. His expectation of privacy was in the contents of the computers and, as I have already observed, a search of the computers in his home would have resulted in a greater invasion of privacy. To the extent there was an invasion of Mr. Sonne's privacy when the police searched the computers, it was because the computers were searched. The geographical location of the search and the fact that the search continued outside the time frame specified in the warrants did not impact on Mr. Sonne's s. 8 rights. In my view, the most important factor is that the search itself was authorized by a warrant and I have found that it was conducted reasonably and in accordance with that warrant. [page239]

[93] For these reasons, this factor also favours admission of the evidence.

(c) Society's interest in the adjudication of the merits

[94] Mr. Sonne is charged with three counts of possession of explosive substances. These are serious charges. In considering this factor, I may consider the importance of the evidence to the prosecution's case. However, as the court stated in Grant, this has the potential to "cut both ways" in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high: at para. 84.

[95] Although the evidence found on Mr. Sonne's computer, as I understand it, is not critical to the Crown's case, in the sense that the case will necessarily fail without it, as Mr. Byrne submitted, this is a circumstantial case and it is difficult to assess the impact of exclusion of this evidence. Although I have not reviewed the evidence the Crown seeks to tender at the trial that was seized from Mr. Sonne's computer in any detail, based on the description of that evidence by D.C. Ouellette, as I understand it, the results of the search would provide evidence from Mr. Sonne's computer that he had downloaded information concerning the production of explosives, had ordered chemicals that could be used in the production of explosives, had taken a keen interest in the security measures of the G20 and ways to tamper with those security measures, and had some association with groups known to the police to include members who use violent means to protest.

[96] As Fuerst J. stated, at para. 29 in Little, the fact that the evidence is circumstantial and may be capable of more than one explanation does not render it unreliable. This evidence is real and it is reliable. This is not an instance in which the Charter breach undermines the reliability of the evidence because the computer information existed independently of the Charter-infringing conduct. The evidence is not conscriptive; it existed independently of any breach of the Charter. The admission of the evidence would not affect the fairness of the trial.

[97] Although the Crown may be seeking to use some of these items to attempt to support a link between the applicant's possession of explosive materials and his various interests and the specific intent underlying the charges, I do not agree with the submission of the applicant that as a result the probative value of the evidence for such purposes is limited. Given the circumstantial nature of the Crown's case, the loss of any evidence would have the effect of weakening the overall picture that could be presented at trial. [page240]

[98] For these reasons, I find that the truth-seeking function of this criminal trial would be better served by admission of the evidence.

(d) The balancing

[99] At this stage of the analysis, I must weigh the various factors. I do so understanding that there is no overarching rule governing how the balance should be struck: Grant, at para. 86.

[100] All three of the Grant criteria work in favour of not excluding the evidence obtained from Mr. Sonne's computer. I have found that the police acted in good faith throughout. The seriousness of the police conduct falls at the lower end of the spectrum of misconduct. The breaches of s. 8 had very little, if any, impact on Mr. Sonne's s. 8 interests. The evidence is important to the Crown's case.

[101] Balancing all of the factors, I would not in these circumstances exercise my discretion to exclude the evidence obtained from Mr. Sonne's computer notwithstanding my findings that there was a breach of his s. 8 Charter rights.

Final Disposition

[102] For these reasons, the application to exclude the evidence obtained as a result of the search of the hard drives of the computers seized at [address omitted] is dismissed subject to ruling on what counsel termed the "Global s. 24 Charter argument". [See Note 20 below]

Application dismissed.

Notes

Note 1: See R. v. Sonne, [2011] O.J. No. 5357, 2011 ONSC 6734 (S.C.J.) and R. v. Sonne, 2012 ONSC 584 (S.C.J.).

Note 2: See R. v. Sonne, 2012 ONSC 573 (S.C.J.).

Note 3: From the evidence, I understand that a torrent file is a pathway or link that describes how to find information, for example, a publication, on the Internet. The user is then able to use that link to download a file in small pieces from different people located all over the world.

Note 4: [2007] O.J. No. 5305, 76 W.C.B. (2d) 307 (S.C.J.), at paras. 82-86.

Note 5: [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3.

Note 6: R. v. Guo, [2009] O.J. No. 1816, 2009 ONCJ 184; see, also, R. v. Little, [2009] O.J. No. 3278 (S.C.J.), at para. 171.

Note 7: (2011), 2011 ONCA 632, 107 O.R. (3d) 241, [2011] O.J. No. 4388 (C.A.), at paras. 48-51.

Note 8: Jones, supra, at para. 36.

Note 9: (1985), 21 C.C.C. (3d) 147, 15 C.R.R. 23 (H.C.J.).

Note 10: [1987] O.J. No. 64, 31 C.C.C. (3d) 449 (C.A.).

Note 11: [2011] O.J. No. 642, 2011 ONCA 128.

Note 12: Supra.

Note 13: Worrall (Re), [1965] 1 O.R. 527, [1964] O.J. No. 890 (C.A.), at para. 7.

Note 14: R. v. Sonne, 2012 ONSC 584 (S.C.J.).

Note 15: 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32.

Note 16: Supra.

Note 17: 2010 SCC 8, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8.

Note 18: Supra.

Note 19: R. v. Morelli, supra, at paras. 2-3.

Note 20: See R. v. Sonne, [2012] O.J. No. 1753, 2012 ONSC 1755 (S.C.J.).