ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-50000653-0000
DATE: 2012/05/22
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
OLDRICH PELICH
Applicant
Amanda Camara, for the Respondent
Christopher Biscoe, for the Applicant
HEARD: May 14, 15, 16, 2012
DUNNET J.: (Orally)
RULING ON APPLICATION TO EXCLUDE EVIDENCE
OVERVIEW
[1] The applicant is charged with the following offences under s. 163.1 of the Criminal Code: possession of child pornography x 3, making child pornography available x 2, making child pornography and accessing child pornography. He brings this application pursuant to ss. 7, 8, 10(b) and 24(2) of the Code to exclude from evidence the statements he made during and after the execution of the search warrant at his residence and the CDs and DVDs seized as a result of utterances he made at his residence as well as the analysis of any data extracted from those items.
[2] The grounds upon which he relies for this application are that the search warrant was overly broad; the police failed to inform him of his right to counsel upon detention and they failed to provide him with an opportunity to reconsult counsel when there was a change in his jeopardy.
THE EVIDENCE
[3] On June 5, 2008, police officer Christopher Purchas was conducting an investigation into child exploitation activities on the internet. During the investigation, the officer made a one to one connection with a computer located at Internet Protocol address 99.232.248.238 (the IP address) and browsed its shared folder. He downloaded four files with images and a movie file. There is no issue between the parties that the files contained child pornography.
[4] Officer Purchas investigated the IP address and determined that the internet service provider was Rogers Cable Communications Inc. and the subscriber was Oldrich Pelich of Unit 102 at 306 The West Mall in Toronto.
[5] On July 15, 2008, Officer Purchas logged onto the internet and made a one to one connection with the computer at the same IP address and browsed its shared folder. He downloaded fourteen files and confirmed that they contained child pornography. Based upon the evidence gathered, the officer applied for and obtained a search warrant for the applicant’s residence.
[6] On July 16, 2008, police officer Paul Krawczyk secured a key to the applicant’s residence from the building superintendent. Just before 6:05 am, Officer Purchas knocked on the door to the residence. When there was no response, he opened the door with the key and observed a chain lock that prevented the door from fully opening. He saw the applicant standing in the living room near a computer and yelled, “Police. Search warrant.” He forced open the chain lock and made his way over to the applicant while officers cleared the apartment. Officer Purchas showed the applicant the search warrant and told him that it was in relation to someone downloading child pornography using a computer program called LimeWire. (LimeWire is a peer-to-peer file sharing client computer program.)
[7] The applicant said, “There’s nothing on the computer. I get rid of it.”
[8] Officer Purchas told the applicant that he did not have to make a statement. Any statement he made may be used against him and he had a right to a lawyer. Then the following conversation took place:
Officer Purchas: What do you mean you get rid of it?
The applicant: I have a shredding program that shreds those files.
Officer Purchas: When did you last use that?
The applicant: Yesterday.
Officer Purchas: Do you copy the files to CD?
The applicant: Pause…Yea. There are some over there in the red plastic box.
[9] The applicant pointed to a red box on a shelf directly above the computer. At 6:08 am, Officer Purchas retrieved several discs from the red box. Officer Krawczyk pre-viewed the discs on a computer that he had set up in the hallway outside the apartment. He confirmed that eight discs contained child pornography. At 6:10 am, the applicant was arrested and handed over to police officer Olusesan Osoba for transport to the police station.
[10] Officer Osoba testified that he was advised by police officer Nathan Dayler that the applicant had been arrested for possession of child pornography. Officer Osoba told the applicant that he was under arrest for child pornography. At 6:20 am, he placed the applicant into a scout car and advised him of his right to counsel by reading the words written in his memo book. He asked if the applicant understood his right to counsel and he replied, “I understand.” He asked if the applicant wished to call a lawyer now and the applicant replied, “Not at the moment.” Reading again from his memo book, Office Osoba gave the primary and secondary caution and the applicant acknowledged that he understood.
[11] When the applicant was paraded at the police station at 6:30 am, Officer Osoba told the staff sergeant that the applicant was under arrest for possession of child pornography. The staff sergeant informed him that he could have access to a telephone to speak with duty counsel or his own counsel. The staff sergeant then made inquiries about the applicant’s identification and his health. When he was asked whether he was considering taking his life while in custody, the applicant replied in the negative. Then he uttered, “I do feel ashamed.”
[12] At 8:10 am, Officer Purchas contacted duty counsel. At 8:26 am, the applicant spoke to duty counsel. At 9:25 am, Officer Purchas met with the applicant who provided a three hour video-taped statement.
[13] At the beginning of the interview, the following interchange took place:
Officer Purchas: I just want to make sure you understand why it is that you are at a police station. Okay? You are here because you've been placed under arrest for three counts of possession of child pornography, two counts of make available child pornography and one count of make of it, child pornography. Sorry, one count of make child pornography. You understand that?
The applicant: No sir.
Officer Purchas: Okay. Let me say it again. Three counts of possession of child pornography. You understand that?
The applicant: Yes sir.
Officer Purchas: Okay. Two counts of make available child pornography. Do you understand that? Make available means that you have child pornography on your computer in such a way that others can get it from you.
The applicant: I see. Okay.
Officer Purchas: Okay? Do you understand that charge? I mean, I'm not asking you to agree with it.
The applicant: Uh, no, no.
Officer Purchas: Just that you understand –
The applicant: I - I understand what you're –
Officer Purchas: what –
The applicant: saying –
Officer Purchas: - what the charges are.
The applicant: Yes.
Officer Purchas: Okay? And then the - the other count is one count of make child pornography. What that means is if you have child pornography and you - in your case, you move it to a different media, like a CD or a DVD –
The applicant: Uh, huh?
Officer Purchas: - and you take it from your computer and put it somewhere else, it's considered, a make. It's not a make in - in a –
The applicant: Oh?
Officer Purchas: - producing, like filming. It's - it's a different interpretation of make. But it's - it's to make it and that you've moved it from one media to a - one medium to another. You understand that?
The applicant: Yes sir.
Officer Purchas: Okay. So those are the charges you – that - that you are facing. Okay? Furthermore, I have to make sure that you understand that, uh - you've spoken to a lawyer? Now I can't – you’ve had an opportunity to speak to duty counsel? Like we called a free lawyer for you and you spoke to that person?
The applicant: Uh, I did speak - yes.
Officer Purchas: Okay. And again, I can't discuss with you what - what that - that's privileged, what you and they talk about I can't talk to you about that at all.
The applicant: Yes.
Officer Purchas: Okay? And thirdly, I want you to understand that whatever we talk about here has to be voluntary. Like I - you know? No one has made you any promises. They haven't threatened you. Whatever you say here has to be of your own free will and volition. If at any time you feel that you no longer want to talk –
The applicant: Hmm, mmm -
Officer Purchas: - certainly, you can just advise me and then, you can - we can stop. You know? We can stop talking. Okay?
The applicant: I understand, yes.
WAS THE SEARCH WARRANT OVERLY BROAD?
[14] The applicant concedes that the Information to Obtain the Search Warrant (ITO) disclosed grounds that an offence had occurred at his residence and there were reasonable grounds to believe that there were computers at the address that “will afford evidence with respect to” the alleged offences. He submits that there were no grounds to believe that external storage devices existed or that a search of those devices would afford evidence of the alleged offences. Thus, he seeks a severance of the warrant to exclude the authority to seize the CDs and DVDs showing child pornography.
[15] The Crown responding asserts that the ITO provided the issuing justice with reasonable grounds to believe that a crime had been committed and that there would be evidence of child pornography found in the applicant’s residence on his computer and computer media.
[16] In the ITO appendix of things to be searched for, it states:
Any electronic devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic computer impulses or data. These devices include computers, computer components, computer peripherals, modems, monitors, printers, encryption circuit boards, optical scanners, external and internal hard drives, USB flash drives, connecting cables, couplers and/or ribbons and other computer related electronic devices.
Any information and/or data stored in the form of magnetic or electronic coding on computer media or on media capable of being read by a computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard discs, removable hard discs, cartridges, tapes, laser discs, CDs, DVDs, and any other media which is capable of storing magnetic coding.
Any photographs, digital images, videos, computerized graphic files, printed material, computer images or files made by electronic or mechanical means which are located on the premises which show a person who is or depicted as being under the age of eighteen years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.
[17] In his affidavit in support of the ITO, Officer Purchas detailed the relevant computer terminology and the background of the investigation. He then stated that on June 5, 2008, while conducting investigations on the Gnutella Peer to Peer Network, he identified a computer using the IP address 99.232.248.238 with an active connection to the Gnutella Network. (Gnutella is an open source public file sharing computer program. The Gnutella Network can be accessed by computers running different client programs, which share common protocols for network access and file sharing.) Having established a one to one connection with the computer, he browsed the shared folder, downloaded five of the files and confirmed them to be child pornography.
[18] He stated that on July 15, 2008, he established a one to one connection with the computer at the same IP address, browsed the shared folder, downloaded fourteen files and confirmed all of them to be child pornography.
[19] Officer Purchas stated that it was his belief that if the search warrant was granted, the investigation of any computer equipment located in the residence would afford evidence directly related to the possession and distribution of child pornography.
[20] In his testimony, the officer acknowledged that before the search, he had no evidence that the files were being copied to CDs and DVDs; however, he believed that shared files were potentially being stored on computer media. He had not seen a shared file stored on a CD drive but he said that it was possible. He explained that images and videos of child pornography can be stored on a variety of computer media devices and a shared folder can directly reference an external device. He testified that a CD drive in a computer functions like a hard drive and files can be stored on the CD drive. He used the following analogy: a CD drive is like a camera and seizing a computer that contains a CD drive and leaving behind a CD would be like seizing a camera and leaving behind any film.
[21] In R. v. Jones, 2011 ONCA 632 at para. 40, Blair J.A. held:
There may be valid reasons, then, why the language used to authorize computer searches may need to be relatively broad in order to cope with the practical realities of an ever-changing and developing age of technology.
[22] The issue in Jones was the extent to which the discovery of evidence pointing to a second, and unanticipated crime, can piggy-back onto the lawful execution of a computer search warrant directed at a different crime.
[23] Blair J.A. went on to state, at paras. 42 and 50:
42 I do not accept that the right to examine the entire contents of the computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint - even where, as here, the warrant may properly authorize unlimited access to the computer’s files and folders in order to accomplish its search objectives. A computer search 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.
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 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.
[24] In R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 56, the Supreme Court held that if, based on the record that was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[25] In my view, the affidavit in support of the ITO provided the issuing justice with full and frank disclosure of the material facts. There were reasonable grounds for the issuing justice to believe that there would be evidence of child pornography found not only on the computers but also on computer media.
[26] This was not a fishing expedition where the searching officers rummaged carte blanche through the applicant’s residence. Despite the fact that there were two rooms in the residence containing computers and computer related equipment and media, including numerous CDs and DVDs, the police were cognizant of the limits of the warrant and confined their seizure of items by pre-viewing the CDs and DVDs. Officer Krawczyk testified that he looked at about twenty CDs and seized eight with images of child pornography. He testified, “Once we find a significant amount, we do not keep pre-viewing.”
[27] The applicant was sharing pornographic images on-line. It was appropriate for the police to search and seize the computers and computer media located near the computers. The warrant specifically authorized the search of computer related electronic devices and information stored on computer media, including CDs and DVDs. In the circumstances of this case, the warrant was not overly broad.
DID THE POLICE VIOLATE THE APPLICANT’S RIGHT TO COUNSEL?
The Initial Utterance
[28] The applicant submits that as soon as the police breached the door to his apartment and saw that he was the only person in the residence, he was detained and ought to have been informed of his right to counsel.
[29] Officer Purchas testified that as soon as he entered the apartment, he approached the applicant, who was standing by the computer. He advised him that the police were executing a search warrant in relation to the downloading of child pornography on LimeWire. He showed him the search warrant and almost immediately, the applicant said: “There’s nothing on the computer. I get rid of it.”
[30] In R. v. Connor, [2009] O.J. No. 3827 (Sup. Ct.) at para. 82, the court held:
It is routine police procedure when executing a search warrant at a residence to round up all of the occupants and keep them under police control while the search is ongoing. That procedure is necessary to protect the efficacy of the search and to ensure the safety of the officers engaged in that search. It would be wholly unworkable to require police executing a search warrant to provide every person on the premises with their rights to counsel immediately upon entering those premises. In R. v. Debot, Lamer J. held that “as a general rule police proceeding to a search are not obligated to suspend the search and give a person the opportunity to retain and instruct counsel, as for example when the search is of a home pursuant to a search warrant”: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at para. 2.
[31] When the police entered the apartment, they did not know who the man was or whether he was connected to the person who was downloading child pornography. The utterance made by the applicant was not in response to any question. He blurted it out. It was spontaneous. Accordingly, I find that the applicant was not detained and thus, there was no breach of his right to counsel. Even if there was a violation of the applicant’s rights at the time of the utterance, the violation was fleeting and blameless and the officer immediately cautioned the applicant.
The Statement Relating to CDs
[32] The position of the applicant is that after he made the initial utterance, he was not informed of his right to counsel or given a reasonable opportunity to exercise his right to retain and instruct counsel. It is submitted that the effect of this was to conscript him to be a participant in the search and the CDs were seized as a result of his conscripted evidence. He contends that the information gathered by Officer Purchas was immediately utilized by the police to determine the scope of the search and to identify what items to seize. It is submitted that the seizure of the items identified as a result of the applicant’s utterances renders that portion of the search and seizure unreasonable.
[33] Officer Purchas testified that as soon as the applicant made his initial utterance, he told him that he did not have to make a statement, any statement he made may be used against him and he had a right to a lawyer. There is no evidence that he informed the applicant of his right to free advice from a Legal Aid lawyer or the 1-800 number before questioning the applicant about when he last used his shredding program and whether he copied the files to CDs.
[34] The officer’s explanation for his questions was that he believed that the computer was running a shredding program as they entered the apartment and he was concerned about the imminent destruction of evidence. He asked about CDs in order to minimize the extent and scope of the search. Based on the applicant’s response, he seized a quantity of CDs from the book case above the computer and a pre-view of some of those discs revealed child pornography.
[35] Officer Purchas testified that the applicant was arrested by Officer Dayler, handcuffed and searched and handed over to uniformed officers for transport. Officer Purchas continued to execute the search warrant and at 6:58 am, he found two more CDs in a black bin behind the computer. At 7:15 am, he found a DVD on the computer desk. At 7:34 am, he left the apartment.
[36] In cross-examination, the officer acknowledged that although it is important, he did not make a notebook entry of the applicant’s response to his caution and right to counsel. He testified that he was aware that if the man wanted to speak to a lawyer, he had a duty to hold off until the applicant had that opportunity.
[37] Officer Dayler testified that when he entered the apartment, he saw the applicant standing near the computer desk. He went over to him and stood near him for officer safety reasons. He heard the applicant identify himself and tell Officer Purchas that he was the sole occupant of the apartment. He also heard the applicant tell Officer Purchas that there was child pornography burned on the CDs. He said that he was only half listening, because he was watching the officers clear the apartment. He recalled Officer Purchase cautioning the applicant and advising him of his right to counsel but he made no notes of any response.
[38] The applicant claims that without waiting for a response to the right to counsel, Officer Purchas went ahead and questioned the applicant about shredding and copying the files. There is no evidence as to whether the applicant understood his right to counsel or whether he was given an opportunity to exercise that right before responding to the questions posed by Officer Purchas.
[39] I find that at the time he made the statement to Officer Purchas about the CDs, the applicant was detained and the police breached the informational and implementational components of the section 10(b) right. If there was a genuine concern about the destruction of evidence or about restricting his search, the officer should have read the standard right to counsel language from his memo book. He should have given the applicant the 1-800 number and then waited to ask if he wanted to speak with a lawyer. He should have recorded the applicant’s response. Therefore, the police violated his right to counsel before eliciting the statement regarding the CDs.
The Statement during the Booking Process
[40] The applicant also seeks to exclude his statement, “I do feel ashamed” made to the staff sergeant during the booking process. It is submitted that his response to whether he wished to consult with counsel, “Not at the moment,” was not a waiver of his right to counsel.
[41] The Crown maintains that there was no attempt to elicit further information from the applicant. The booking sergeant was not asking questions in relation to the charges. He was making inquiries as to the applicant’s physical and mental health. It is submitted that in the circumstances, the statement was spontaneous and voluntary.
[42] I find that having advised Officer Osoba that he did not want to speak to a lawyer “at the moment”, there was a continuing duty to hold off and inquire as to when he wished to contact his lawyer and a corresponding duty to provide him with an opportunity to do so.
[43] The staff sergeant may have been asking questions in good faith but the questions he asked could lead to incriminating answers. They may relate to feelings of guilt suggested by the response made by the applicant. I find that the applicant should have been given the opportunity to consult with counsel before the staff sergeant elicited evidence from him. Thus, his right to counsel was breached.
The Video-taped Interview
[44] The applicant submits that he was originally charged with possession of child pornography, a charge which carries with it a mandatory minimum sentence of 45 days in custody. After his arrest, he was taken from his apartment and placed in a scout car where he was told that he was under arrest for possession of child pornography. At the station, he was present when the staff sergeant was advised by Officer Osoba that he had been arrested for possession of child pornography.
[45] The applicant spoke with duty counsel, following which he provided a video-taped statement to Officer Purchas. It is submitted that at the outset of the video statement, he was advised for the first time that he was also charged with making child pornography available and making child pornography. Both charges mandate a minimum sentence of one year.
[46] It is the position of the applicant that at that point, his jeopardy had significantly increased and he ought to have been given the opportunity to speak to counsel again, because of the material change in circumstances.
[47] It is the Crown’s position that based on the words used by Officer Purchas when he first entered the apartment – that the search warrant was in relation to “downloading child pornography,” and the applicant’s response - that he “gets rid if it,” indicates that he understood his jeopardy. The Crown contends that the applicant was arrested by Officer Dayler for possession of child pornography and making child pornography available. He spoke to duty counsel and he did not indicate that he wanted to speak to counsel again.
[48] Officer Dayler’s evidence was that after Officer Purchas cautioned the applicant, Dayler arrested him based upon the grounds set out in the search warrant and the fact that the applicant was the lone occupant of the apartment with a computer that was running. Although his notes do not state the reason for the arrest, Officer Dayler testified that he knew that the grounds for the search warrant were possession and “make available” and he would have arrested the applicant on those charges.
[49] In cross-examination, counsel for the applicant reminded Officer Dayler that he testified at the preliminary inquiry that the applicant was arrested for possession of child pornography and he said he could not recall whether there were further charges at that time. The officer explained that at the preliminary inquiry, he knew about the possession and making available charges, but he did not know about the charge of making child pornography. Counsel suggested to Officer Dayler that it was only after hearing the evidence of Officer Purchas that the applicant was arrested for possession and making child pornography available, that Officer Dayler changed his evidence to say that the applicant was arrested on both charges. He denied the suggestion.
[50] The applicant asks the court to reject the evidence of Officer Dayler in its entirety on the basis that he misled the court as to the nature of the charges for which the applicant was initially arrested. It is submitted that the only reliable witness is Officer Osoba who said that he was advised by Officer Dayler that the applicant had been arrested for possession of child pornography.
[51] I find the evidence of Officer Dayler to be troubling and on the whole of the evidence, I conclude that there is no reliable evidence that the applicant was initially made aware of any charges other than possession of child pornography. When he was advised of the charges on the video, the applicant seemed confused and when he was asked if he understood the charges, his response was, “No sir.” Officer Purchas then explained all of the charges and he acknowledged that he understood them.
[52] In R. v. Sinclair, 2010 SCC 35 at para. 51, the Supreme Court sought to provide guidance to investigating police officers in situations where a second consultation is required:
The detainee is advised upon detention of the reasons for the detention: s.10(a). The s. 10(b) advice and opportunity to consult counsel will follow this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.
[53] At paragraphs 48 and 49 in Sinclair, the Court explained the rationale for the right to a further legal consultation:
48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.
49 The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, the interrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed.
[54] Although Officer Purchas informed the applicant that he could “stop talking” if, at any time during the interview, he felt that he “no longer wants to talk”, the officer did not give the applicant an opportunity to reconsult with counsel where the changed circumstances in the number and nature of the charges suggested that reconsultation was necessary in order for the applicant to have information relevant to choosing whether to cooperate with the police investigation or not.
[55] I find that because of his increased jeopardy, there was a duty to inform the applicant of his right to counsel and a duty to provide him with the opportunity to exercise that right. Thus, there was a violation of his right to counsel.
SECTION 24(2)
[56] When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused and society’s interest in the adjudication of the case on its merits. See R. v. Grant, 2009 SCC 32 at para. 71.
Should the statements be excluded?
[57] The applicant seeks to exclude his statements on the basis that they were causally and temporally linked to the Charter breaches.
[58] In R. v. Wittwer, 2008 SCC 33 at para. 21, the Supreme Court held:
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct…
[59] Courts have tended to exclude statements obtained in breach of the Charter on the ground that admission, on balance, would bring the administration of justice into disrepute. In Grant, at paras. 93-98, the Court discussed how the three lines of inquiry support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.
[60] The first inquiry focuses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. With respect to the right to counsel under s. 10(b), the failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and the protection against testimonial self-incrimination.
[61] The third inquiry focuses on the public interest in having the case tried fairly on its merits. This may lead to a consideration of the reliability of the evidence. The Court stated that a suspect who is detained by the police without a lawyer may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth of the statement itself. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.
[62] Having regard to the applicant’s continuous detention, the fact that the same officer conducted the interviews and the short interval between statements, I conclude that the connection between the statements and the Charter breaches can be said to be part of the same transaction, or course of conduct.
[63] Balancing the three lines of inquiry, I am of the view that the statement made by the applicant following his detention in the apartment should be excluded, because the applicant was not clearly or completely informed of his Charter rights before he chose to speak to the police. Even if Officer Purchas was genuinely motivated to preserve evidence, his compliance with the requirements of s. 10(b) was incomplete at the informational and implementational stages.
[64] The statement made to the staff sergeant during the booking process should be excluded, because the police failed in their duty to hold off and make inquiries into when the applicant wished to contact his lawyer and provide him with an opportunity to do so. The video-taped statement was obtained in contravention of the applicant’s right to be re-informed of his right to counsel upon the increase in his jeopardy with the addition of new charges.
[65] In my opinion, these statements were obtained in violation of the Charter–protected interests of the applicant and are causally and temporally connected and their admission into evidence would bring the administration of justice into disrepute.
[66] When a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made, notwithstanding the Charter breach (see R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343), the impact of the breach on the accused’s protected interest in informed choice may be less. See Grant at para. 96.
[67] The utterance made upon the police entering the apartment and advising the applicant why there were there was spontaneous. The applicant was not detained. Even if there was a violation of his Charter rights, the violation was fleeting and blameless. Whether or not it can be confidently said that the utterance would have been made, I am of the view that its admission into evidence would not bring the justice system into disrepute.
Should the CDs and DVDs be excluded?
[68] The applicant submits that the seizure of the CDs and DVDs is causally and temporally linked to the breaches of ss. 7, 8 and 10(b) of the Charter and balancing the three lines of inquiry favours exclusion.
[69] It is submitted that Officer Dayler attempted to mislead the court as to the nature of the initial charges and such conduct represents a blatant disregard for Charter rights. In support of this argument, the applicant relies upon the case of R. v. Tang, 2009 ONCJ 642 where a police officer conducted a warrantless search of the accused’s computer when he was not at home. The court found that the officer caused a pornographic picture to appear on the screen and then attempted to mislead the court by testifying that he did not operate the computer. The court also found that the officer committed a serious s. 8 Charter breach and the breach was deliberate. It seriously affected the accused’s rights and was compounded by the officer’s attempts to mislead the court when he claimed that child pornography was being displayed as a screensaver.
[70] While not part of the Charter breach itself, this type of police conduct is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis, given the need for a court to disassociate itself from such behaviour. Although I have found Officer Dayler’s evidence about the nature of the charges for which the applicant was initially arrested to be troubling, I do not find that there was a deliberate attempt to mislead the court, or that his conduct represents a blatant disregard for Charter rights. I am satisfied that his evidence on this issue is the result of the passage of time and the failure to make fulsome notes.
[71] None of the police conduct in this case can be described as egregious or a deliberate abuse of power. They were acting in good faith under what they considered to be, and I have found to be, a valid search warrant. Moreover, the impact on the Charter-protected interests of the applicant is minimized because he has conceded the validity of the search warrant as it relates to the computer.
[72] The applicant also seeks exclusion of the CDs and DVDs on the basis that they were located as a direct result of his statement that he copied the files to CD and that some were in a box in close proximity to the computer.
[73] He relies upon the case of R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206 where the police offered the accused “a deal” if he provided them with the location of a gun related to a murder. The Court found that the accused’s section 10(b) right was breached, the violation was wilful and flagrant and the gun would not have been found but for the unconstitutional behaviour of the police. The present case is entirely distinguishable. I do not accept that the police deliberately abused their power to obtain statements that might lead them to the evidence.
[74] Further, the CDs and DVDs that were seized are real and reliable physical evidence that is significant to the prosecution. They were in plain view directly above the computer and would inevitably have been located. The applicant’s conscription was not necessary to the collection of the evidence.
[75] The court in Connor, at para. 100 aptly stated: “Child pornography charges, although obviously not the worst charges under the Criminal Code, are nevertheless very serious, and there is a strong public interest in ensuring that those who exploit innocent children in this way are brought to justice.” In my opinion, the public interest in having a trial on the merits favours admission of the physical evidence.
[76] Weighing all of these factors, I find that on balance, admitting the CDs and DVDs into evidence would not bring the administration of justice into disrepute.
DUNNET J.
Released: ** May 22, 2012**
COURT FILE NO.: 10-50000653-0000
DATE: 2012/05/22
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
OLDRICH PELICH
Applicant
RULING ON APPLICATION TO EXCLUDE EVIDENCE
DUNNET J.
Released: ** May 22, 2012**