THE UNITED STATES OF AMERICA v. LANE

2012 ONSC 5404

COURT FILE NO.: CR-11-253-MO

DATE: SEPTEMBER 26, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRANDON LANE, Applicant

• and – THE ATTORNEY GENERAL OF CANADA On behalf of THE UNITED STATES OF AMERICA, Respondent

BEFORE: JUSTICE BRIAN W. ABRAMS

COUNSEL: JOHN NORRIS and BRYDIE BETHELL for the Applicant RICHARD KRAMER and MONIKA RAHMAN for the Respondent

CHARTER APPLICATION

OVERVIEW

[1] The United States of America ("USA") seeks the extradition of the Applicant, Brandon Lane, ("the Applicant") for allegedly distributing child pornography through an internet electronic bulletin board called "The Dreamboard". The bulletin board had upwards of 600 members internationally. The Respondent contends that an individual using the screen name "BossHiaka" held a leadership role of administrator on the bulletin board. The Respondent further contends that "Bosshiaka" controlled who was allowed to join and who was allowed to see the increasingly violent and graphic displays of child pornography that were found at different "levels" within the bulletin board. Moreover, that "BossHiaka" was extremely sophisticated in detection-avoidance techniques in his role as administrator, and advised other members on how to avoid police protection. Finally, the Respondent contends that Brandon Lane is "BossHiaka".

EXCLUSION OF EVIDENCE

[2] This is an Application for the exclusion of evidence in respect of the extradition proceeding. To that end, the Applicant is alleged to have committed certain offences that have given rise to charges in Canada and the USA.

[3] The Applicant seeks an order pursuant to ss. 25 and 32 (2) of the Extradition Act and s.24(2) of The Canadian Charter of Rights and Freedoms ("the Charter") excluding from his extradition hearing all evidence seized in the execution of a search warrant for his home as having been obtained in violation of his rights guaranteed by ss. 8,9,10(a) and 10(b) of the Charter.

[4] The USA requests the Applicant's extradition for the purpose of prosecution in the United States District Court for the Western District of Louisiana on charges of engaging in a child exploitation enterprise, conspiracy to advertise the distribution of child pornography and conspiracy to distribute child pornography. The USA alleges that the Applicant possessed, accessed, made available and distributed child pornography between September 2008 and August 1, 2010.

[5] The request for the Applicant's extradition is supported by the Record of the Case ("ROC") certified on February 17, 2011 and a supplemental ROC certified on March 14, 2011 (collectively, "the ROC's").[^1]

[6] The Minister of Justice authorized the Attorney General of Canada by way of an Authority to Proceed ("ATP"), issued pursuant to s. 15 of the Extradition Act, before this Court to seek the Applicant's committal. The revised ATP dated April 26, 2011, lists two Canadian offences which correspond to the alleged conduct: Distribution of child pornography, contrary to s. 163.1(3) of the Criminal Code and conspiracy to distribute child pornography, contrary to s. 163.3(3) and s. 465 of the Criminal Code. The Court was advised at the outset of the Application that the Canadian charges in the Ontario Court of Justice were withdrawn by the Provincial Crown.

[7] The ROC states that the Royal Canadian Mounted Police ("RCMP") and the Ontario Provincial Police ("OPP") investigated the Applicant. Moreover, the Attorney General of Canada indicates that members of the Kingston Police, the Ottawa Police and the US Department of Homeland Security ("DHS") also engaged in the investigation of the Applicant. The summary of the evidence set out in the ROCs includes evidence that was gathered in Canada. Among the evidence gathered in Canada is evidence gathered in the execution of the search warrant at the Applicant's home.

THE WARRANT

[8] On November 22, 2010, the police obtained from Justice of the Peace, Cathy Hickling, a search warrant for 1337 Crossfield Avenue, Kingston, Ontario ("the warrant"). The warrant was issued on the basis of an information to obtain ("ITO") sworn by DC Stephanie Morgan, ("DC Morgan") on November 22, 2010. The search was authorized to take place on November 26, 2010, between the hours of 6:00 a.m. and 9:00 p.m.

[9] The warrant was executed on November 26, 2010.

[10] The Respondent contends that the Canadian evidence was gathered pursuant to a judicially authorized search warrant based on sufficient grounds. The test for review of those grounds by this Court is whether there is any basis on which the issuing Justice could have granted the authorization. The Respondent further contends that the ITO provided more than sufficient evidence on which the authorizing Justice could have issued the warrant.

[11] The Respondent asserts that the use of a dynamic entry was reasonable in this case. Though not obligated to do so, the affiant in the ITO specifically disclosed to the issuing Justice the intention of the police to use a dynamic entry to guard against the destruction of electronic evidence.

[12] There is no quarrel that the police entered the home surreptitiously by picking the lock on the front door at 1337 Crossfield Avenue. Members of the Kingston Police Emergency Response Unit ("ERU") entered the house first. Once inside, they detonated a flash grenade, otherwise known as a distraction device. Accordingly, the entry evolved from surreptitious to dynamic.

[13] All of the occupants of the house were forcibly apprehended. Moreover, all of the occupants were questioned by the police prior to being cautioned or informed of their right to counsel. To that end, the Respondent conceded, for the first time during oral submissions, that the Applicant's s.10(b) rights were breached by the Kingston Police.

[14] There is no question that the police damaged property at 1337 Crossfield Avenue during the execution of the warrant. The distraction device caused damage (burning) in the area where it landed and elsewhere in the house. A number of doors were also damaged, apparently by kicks or blows. The Applicant's parents assumed responsibility for the necessary repairs. The residence, including the Applicant's bedroom and belongings, were left in complete disarray when the search was concluded.

[15] The Court heard viva voce testimony from witnesses called both by the Applicant and the Respondent over the course of 3 days in addition to the sworn affidavits previously filed, which I will now turn to.

THE EVIDENCE

Alison Armstrong

[16] Alison Armstrong ("Ms. Armstrong") was called to give evidence by the Applicant. Ms. Armstrong's testimony was supplemental to her Affidavit, sworn June 22, 2011.

[17] Ms. Armstrong had been roommates with the Applicant for three years. Her boyfriend, Mike Cook, was a friend of the Applicant's. Ms. Armstrong shared residences with the Applicant on Victoria Street, at 150 Pine Street and finally at 1337 Crossfield Avenue.

[18] Ms. Armstrong shared a bedroom with Mr. Cook at the Crossfield Avenue residence when the search warrant was executed on November 26, 2010.

[19] Ms. Armstrong shared the master bedroom with Mr. Cook, which was situated immediately to the right at the top of the stairs on the second floor.[^2]

[20] The Applicant occupied bedroom number 2, which was situated to the left of the stairway on the second floor.[^3]

[21] Their other roommate, Brad Carrigan, occupied bedroom number 3.[^4]

[22] The residence was rented from Peter Splinter Holdings ("the landlord"). It was described as a townhouse with a detached garage.

[23] The residence had three floors with a basement, main floor and a second floor where the bedrooms were situated.

[24] Upon entering the foyer, there were three steps going up to the living room, which was to the right. The kitchen and dinette were beyond the living room on the left side of the residence with an exit door leading out to the backyard.

[25] There was a finished space in the basement which was used as a music room. Otherwise the basement was unfinished. Notably, none of the interior doors in the basement were locked at the time of the search.

[26] Ms. Armstrong testified that when standing at the top of the stairs, all three bedroom doors could be easily seen. Further, the second floor was mostly carpeted.

[27] Ms. Armstrong testified that when the door to her bedroom was closed, it was generally not closed all the way. There were three cats in the residence that would scratch at the door if it was closed all the way. The door was not closed all the way when the warrant was executed. Rather, the bedroom door was open or slightly ajar when the warrant was executed.

[28] Ms. Armstrong is diminutive in stature with a gentle demeanor. She gave her evidence in a forthright manner. For example, when it was necessary for her to concede particular errors made in respect of her earlier affidavit, she did so in a reasonable manner. Based on the totality of her evidence, Ms. Armstrong was a credible witness.

[29] Exhibit #6 (photograph) shows Ms. Armstrong seated at the end of her bed beside Mr. Cook during the execution of the warrant. Both Ms. Armstrong and Mr. Cook are seen handcuffed behind their backs. Ms. Armstrong's top is covered by a very light underwear type garment with no brassiere beneath. She had on pajama bottoms. Mr. Cooke is dressed only in his under shorts.

[30] Ms. Armstrong's top is clearly loose fitting as depicted in Exhibit # 6. When she was handcuffed behind her back, the right shoulder strap of her underwear top kept falling down. She had no way to pull her top up other than by using her teeth. She remained exposed in the plain view of male police officers until a female officer, DC Morgan, entered the room and told one of the officers to remove her handcuffs so that she could cover herself.

[31] Ms. Armstrong described the events leading up to the scene depicted in Exhibit #6 thus. She was ripped out of her sleep and her bed. She awoke to flashlights shining in her face, people screaming and loud banging.

[32] She heard doors being kicked in. She did not hear anyone call out "police", or anything of the sort. She believed that they were being robbed and that they were about to be murdered.

[33] She was pulled out of her bed by her right arm and placed face down on the floor. She smelled smoke and thought that the house was on fire. She asked if the house was on fire and was told to "shut up". She asked if the people in the room were police but did not recall hearing an answer.

[34] Due to her loose fitting sleep wear and the violent nature of being pulled from her bed, her breasts were exposed when she was thrown onto the floor and handcuffed. She had finger imprint bruises on her arm for several weeks after. Moreover, her legs hurt from where she had been thrown on the floor. She later saw that she had a rug burn and a large bruise on her leg.

[35] She estimated being on the floor and handcuffed behind her back for approximately ten minutes. A male told her that she was not allowed to move or talk until "the investigator" arrived.

[36] When DC Morgan arrived she threw the warrant on the floor in front of Ms. Armstrong and Mr. Cook. Exhibit #11 (photograph) shows the warrant on the floor, a distance of approximately 5 to 6 feet away from Ms. Armstrong and Mr. Cook. Ms. Armstrong testified that she was still on the floor when the warrant was thrown down by DC Morgan. She and Mr. Cook were both handcuffed behind their backs at that point and, therefore, could not turn the pages of the warrant to read it.

[37] At no time was Ms. Armstrong advised of her right to speak with counsel. Further, she was never told why she was being detained. In that respect, her evidence was uncontradicted.

[38] The window was opened to let the smoke out. Both she and Mr. Cook were cold. When they asked for the window to be closed they were told "no".

[39] It was only when DC Morgan returned to the room to have Ms. Armstrong taken downstairs to be questioned that DC Morgan told the male police officers to help Ms. Armstrong with her shirt. DC Morgan asked an Officer to take Ms. Armstrong's handcuffs off. She was not given any privacy to dress herself. Rather, all of the male police officers remained in the room. Her handcuffs were placed back on once she was more appropriately attired and before being taken downstairs. Ms. Armstrong described feeling "cold and exposed". She was escorted by a male police officer and seated at the dining room table with DC Morgan. She testified that she wanted to co-operate and felt that that the police would be suspicious of her if she didn't answer their questions. Put bluntly, she said: "I just wanted them out of my house".

[40] After answering DC Morgan's questions, Ms. Armstrong was taken back upstairs with the handcuffs still in place. Mr. Cook, who was still handcuffed, was taken downstairs. Ms. Armstrong was placed back in the bedroom alone with the male police officers. She eventually had to go to the bathroom and asked to be allowed to do so. She was taken downstairs with the handcuffs still in place. She was allowed to use the bathroom on the main floor, but she was not allowed to close the door entirely by the male officer who escorted her.

[41] Ms. Armstrong testified that the photo comprising Exhibit #6 was taken after she and Mr. Cook were picked up from the floor. She described sleeping on the right side of the bed, which would mean that her right arm was to the outside. Mr. Cook slept on the left side of the bed. She developed bruises on her right arm where she was grabbed and pulled from the bed. In addition to her injuries, Mr. Cook had marks and bruises on his left arm and shoulder, as depicted in Exhibits #7, #8 and #10. Mr. Cook also had a rug burn on his knee, as depicted in Exhibit #9. Ms. Armstrong sustained a similar burn on her knee as seen in Exhibit #9.

[42] At some point in time, Ms. Armstrong, Mr. Cook and Mr. Carrigan were all seated together on the couch in the living room. It was only then that their handcuffs were removed. None of the three were given an opportunity to speak to a lawyer. Further, none of the three were advised as to why they were being detained.

[43] The three occupants remained seated on the couch for what seemed like a couple of hours. Once their handcuffs were removed, Ms. Armstrong testified that she still did not feel that they were at liberty to move around the house.

[44] Ms. Armstrong recalled that one of the police officers brought coffee for the other officers in the house, but that the neither she, Mr. Cook or Mr. Carrigan were offered a coffee. Moreover, the two police officers who remained the longest in the Applicant's bedroom (computer specialists) ordered pizza. One of the officers said to them "We're pretty hungry. Could you answer the door when the pizza arrives?" or words to that effect. The pizza was eventually delivered. Notably, this evidence was never contradicted.

[45] At some point in time, Ms. Armstrong recalled hearing that there was a U.S. police officer in the house.

[46] Ms. Armstrong described the damage done to the house during the execution of the warrant. Dresser drawers were pulled out and turned over. Mattresses were flipped up against the wall. The mirror in the ensuite bathroom was cracked in two pieces. The carpet outside of the Applicant's bedroom door was burnt. There was a hole blown in the Applicant's bedroom door. A door to the garage was kicked in. A basement door that was not locked was kicked in. Lights in their ensuite bathroom were blown out. Cracks appeared in the drywall on the second floor subsequent to the deployment of the flash grenade. There was smoke damage to the walls. Police officers left black rubber gloves strewn throughout the house, along with empty Tim Horton's coffee cups. One officer apologized for the mess that the residence was left in. Again, the totality of this evidence was uncontradicted.

[47] After the police officers left, Ms. Armstrong went down to the basement where she found a futon flipped up against the wall, a back door was kicked in, a closet was emptied and the contents left on the floor.

[48] She was eventually able to retrieve the warrant from the floor once the officers left. It was then that she was able to read it, for the first time.

[49] Ms. Armstrong was virtually unshaken in cross-examination. Again, when it was necessary to concede certain discrepancies between her earlier affidavit and her testimony, she did so reasonably.

[50] In summary, all of the occupants of the house were forcibly apprehended, Ms. Armstrong being the most egregious example. There was great indignity in the way in which Ms. Armstrong was treated. Although a number of police officers were called to testify, none refuted Ms. Armstrong's evidence regarding how she was made to feel naked, cold and exposed.

Ms. Nancy Ann Lane

[51] Ms. Lane is the Applicant's mother. She, too, swore an earlier affidavit, dated October 30, 2011, in addition to her oral testimony.

[52] Ms. Lane was instrumental in inspecting 1337 Crossfield Avenue and co-signing the lease before her son and roommates moved in. Ms. Lane attended on July 30, 2010, at the residence for an inspection with the junior property manager for the landlord. She described minor paint scuffs and dents along with a small crack in a basement wall, but nothing that appeared to be more than normal wear and tear.

[53] Ms. Lane did not hear about her son's arrest until November 27, 2010. The Applicant was, by that time, being held at the Quinte Detention Centre.

[54] Ms. Lane attended at the residence on November 28, 2010. On the second floor she viewed cracks in the ceiling. There was a hole blown in the door to her son's room. The door frame was pulled away from the wall. The door knob was bent. The carpet in front of the door was burnt. By her description, it appeared as though a tornado had gone through her son's room. Contents of her son's wallet were left strewn around the room. Other items were pulled from the drawers and closet and piled on the floor. She met with the senior property manager for the landlord at the residence on November 29, 2010, when the photographs appended to her sworn Affidavit were taken. Exhibit "C" shows the hole blown in her son's door, along with evidence of significant burning at the bottom of the door and the carpet in front of the door.

[55] Exhibit "B" to her affidavit shows a major crack in an upstairs wall.

[56] Exhibit "F" to her affidavit shows damage to her son's door in the area of the door knob. Later testimony from police officers confirmed that the door was not locked when it was blown and then kicked in.

[57] Exhibit "G" to her affidavit depicts the damage to her son's door from the inside, which included debris that was blown the width of the room. Exhibit "H" to her affidavit shows damage to a door in the basement area that was kicked in, although, it too, was not locked. Exhibit "I" to her affidavit shows the broken vanity mirror in the ensuite bathroom, as described by Ms. Armstrong in her evidence.

[58] Exhibit "J" to her affidavit shows damage to a header above a set of closet doors.

[59] Exhibit "K" shows damage to a door that was also not locked when it was apparently kicked in.

[60] Exhibit "L" to her affidavit is a close up of the damage to the same door, which clearly shows boot prints in the area where the door was damaged.

[61] Exhibit "M" to her affidavit shows damage to a garage door (man door) that was not locked when it was kicked in.

[62] Ms. Lane took on most of the repairs herself, although it was necessary to hire a tradesman to repair the damage to the drywall. She purchased two new doors for the sum of $108.59. She purchased other materials in the amount of $656.90. She and her husband did not calculate the cost of their time to make the repairs.

[63] In summary, the police were authorized to make a surreptitious entry, which they were successful in doing with no indication that anyone in the house was awake at the time. Much, if not all, of the damage to the home was unnecessary and gratuitous, as Ms. Lane contended. She, too, was unshaken in cross examination.

DC Stephanie Morgan

[64] DC Morgan has eleven years of service. She was posted to criminal investigation division prior to being put in charge of the child exploitation unit when it was created in January, 2010.

[65] Early on in the investigation, DC Morgan considered engaging the services of the ERU to assist with the execution of the search warrant. Her concern was for the destruction of electronic evidence, particularly upon entering the residence.

[66] She believed that the individual known as "BossHiaka" was technically savvy and was using encryption software known by the trade name "Truecrypt". She was hopeful that entry to the residence would be gained when the suspect's computer was on, open and not logged off, so that a password would not be required to access the computer. To that end, DC Morgan received specific instructions attached to an email dated October 14, 2010, from DHS Child Exploitation Section, Senior Special Agent, Neil O'Callaghan, with an attachment entitled "Dream Board International Enforcement Action". The email and the attachment were marked as Exhibit "B" to the Application. Particular portions of the attachment are worthy of note:

"Guidelines

The information provided by C3 in the disseminated leads, should be sufficient for the receiving agencies to obtain search warrants for the locations they identify via IP addresses…

…Additionally, it is suggested that surveillance be conducted of the suspect's residence in order to establish when suspect may be using the computer. If possible, the search warrants/enforcement actions should be conducted when investigators feel it is likely the suspect will be present and using the computer as many encryption issues can be overcome if CFS's [Computer Forensic Specialists] can access a system that is up and running [versus] powered down.

Given that all leads disseminated will be based on actions done by an individual using his NIC it will be necessary for investigators that they have tied a NIC to a particular residence/location to identify the individual within, who is using the NIC…" (emphasis added).

[67] Accordingly, the directions from the US authorities made it clear that search warrants should be executed when it was likely that the suspect would be present and using a computer, in order to overcome encryption issues. Moreover, it was necessary for the investigating agencies to obtain search warrants for locations that were identified by way of specific IP addresses.

[68] DC Morgan was assigned this investigation on or about September 9, 2010. She understood that the US authorities initially wanted to organize and execute search warrants/enforcement actions in October of 2010. To that end, DC Morgan was working on a time line that was not of her own choosing. Put simply, DC Morgan had to fit her investigation, specifically the execution of her search warrant, within the coordinated international enforcement action led by the DHS.

[69] By definition, an "internet protocol address" or IP address refers to a unique number used by a computer to access the internet.[^5]

[70] DC Morgan testified that an IP address is like a telephone number, it can be associated to an address, but like a telephone number it will not necessarily tell you which telephone is being used at the address.

[71] A proxy server is defined as a computer that acts as an intermediary between a user's computer and a web site's server. When a user sends information to the web site's server, the request is routed through the proxy server. The website's server, therefore, only records the IP address of the proxy server, rather than the IP address of the user. That makes it difficult to track the actual location of the user.[^6]

[72] DC Morgan knew it was important to enter the residence while the computer was up and running to avoid encryption problems, which was in keeping with the directions provided by the DHS.

[73] However, contrary to those directions, DC Morgan admitted that there was no surveillance conducted at 1337 Crossfield Avenue in advance of obtaining the warrant. Admittedly, surveillance may have alerted her to certain patterns in the occupants' behaviour such as, for example, when they were generally up, around and potentially using their computers.

[74] Sergeant Christopher Bracken was in charge of the ERU at the time. DC Morgan met with Sergeant Bracken in the early stages of her investigation to discuss, among other things, utilization of a dynamic entry.

[75] By early November, DC Morgan had discussed with Sergeant Bracken an alternate method of entry: surreptitious entry by picking the door lock.

[76] It was conceded that Sergeant Bracken would ultimately make the call as to the particular method of entry to be utilized by the ERU.

[77] DC Morgan decided that entry to the residence would be gained as early as 6:00 a.m. or sometime soon thereafter, when the occupants would most likely still be sleeping and not expecting the police to come in. She speculated, however, that they might have their computers running, while they were still asleep.

[78] To that end, DC Morgan testified that, based on her experience, people often uploaded and downloaded material throughout the night and so the suspect might have his computer up and running at 6:00 a.m. In the end, her conclusion was admittedly mere conjecture. Further, the decision to enter the residence at 6:00 a.m. was at odds with the direction provided by the DHS in Exhibit "B".

[79] DC Morgan testified that all of the individuals involved in the search were listed in her Operational/Incident Plan (SMEAK), which was marked as Exhibit #12. However, nowhere in the Operational Plan is Agent Korzak's name mentioned. Further, in reviewing the subheading titled "Case Background", certain statements stand out, specifically:

"A person at 1337 Crossfield Ave. has been accessing child pornography via the internet".

[80] At no point in time leading up to the execution of the warrant was DC Morgan able to determine that a person at 1337 Crossfield Avenue was accessing child pornography from that address.

[81] Moreover, under the same subheading it states: "There is little known about the person(s) living at this address."… "Unknown if others are residing at this address with Cook and Lane". Query whether surveillance may have identified other individuals living at the residence, which may have caused DC Morgan to reconsider the manner in which the search was conducted.

[82] Under that part of the Operational Plan entitled "Execution of Plan", any reference to use of flash bangs or distraction devices is conspicuous by its absence, particularly under the sub-heading, "Phase 2, Assault". While a dynamic entry is mentioned, there is no reference to the use of flash grenades or distraction devices.

[83] Notably, on page 3 of the Operational Plan, under the subheading "Enforcement Assignments", although Constable Villeneuve from the Ottawa Police is named (a non- Kingston police officer), there is no reference to agent Korzak from the DHS.

[84] On November 26, 2010, DC Morgan's notes begin at 5:00 a.m. when a briefing was held in preparation for the execution of a search warrant. DC Morgan confirmed that Agent Korzak was present for the briefing. Following the briefing, there was a meeting in the garage area from where DC Morgan departed to the search location at 5:42 a.m. Agent Korzak travelled with her to the scene. DC Morgan heard a "flash bang" shortly after 6:00 a.m. and was advised by 6:04 a.m. that the residence was secured. She entered the residence at 6:05 a.m. She was told there were four people in the residence, all of whom were upstairs.

[85] DC Morgan went immediately to what was marked as bedroom number 2, the Applicant's room. The Applicant was in his room. There were at least two members of the ERU present. She specifically recalled that she could not tell who the ERU members were, as their faces were partially covered. This was later contradicted by Sergeant Bracken who testified that the ERU members were not wearing their complete uniform with balaclavas, given that this was determined to be a low-risk take down. It is notable however, that DC Morgan's recollection of ERU members wearing balaclavas or partial face coverings is consistent with the evidence given by Ms. Armstrong.

[86] DC Morgan recalled showing the Applicant the original of the search warrant, which was left on the bed. Exhibit #13 is a photograph of the Applicant seated on his bed with his hands cuffed behind his back. There are two police officers in close proximity to the Applicant. The warrant is visible approximately three feet away on top of the bed, clearly too far away for the Applicant to read. The Applicant was not placed under arrest at that time nor was he advised of his right to counsel. DC Morgan was asked why the Applicant was handcuffed at that time. She agreed that nowhere in the Operational Plan was handcuffing of the occupants mentioned and that she did not know why the ERU members would have done so. The Operational Plan did call for securing all persons found inside. Surely the Applicant, as well as the other occupants, would have been effectively secured by the very presence of police officers standing next to them, armed and in full uniform. In any event, when DC Morgan could not explain the actions taken by the ERU, her default position was: I'd never used ERU before.

[87] DC Morgan proceeded to the bedroom occupied by Armstrong and Cook. She could not recall if they were sitting on the bed or whether they were still on the floor. She did recall that they were handcuffed. Accordingly, Ms. Armstrong's evidence regarding being handcuffed and placed on the floor was uncontradicted. Recall also Ms. Armstrong's testimony wherein she and Mr. Cook were handcuffed with their hands behind their backs when DC Morgan entered the room and threw the warrant down on the floor, the warrant being clearly visible in Exhibit #11.

[88] DC Morgan proceeded to the bedroom occupied by Brad Carrigan. She did not have another copy of the search warrant. She advised Mr. Carrigan that he could have a look at his roommate's copy. He, too, was handcuffed.

[89] DC Morgan confirmed that Ms. Armstrong was questioned first. She was escorted downstairs. She could not recall whether Ms. Armstrong was wearing handcuffs when she was being questioned. Again, on this point, Ms. Armstrong's evidence stands alone, uncontradicted. Ms. Armstrong testified that she was questioned by DC Morgan while she was still wearing handcuffs.

[90] Mr. Cook was the next person to be questioned. Mr. Cook was asked some questions regarding encryption that he clearly did not understand. As a result, he was cleared of any suspicion by reason that he apparently lacked the requisite technical sophistication believed to be attributed to "BossHiakas". At that point, the Applicant became the primary suspect. As DC Morgan testified: I thought it might be Brandon Lane, but I really wasn't sure at that point.

[91] With that in mind, DC Morgan proceeded directly upstairs and arrested the Applicant at 6:53 a.m. That having been done, there was no indication that Armstrong, Cook or Carrigan had their handcuffs removed, or that they were free to move around the house. Rather, they remained seated on the couch in the living room area where they were confined by the police.

[92] Before arresting the Applicant, DC Morgan had a short conversation with Constable Frawley, the Kingston Police technical computer specialist. Constable Frawley advised her that the computer was encrypted with "Truecrypt". Knowing this, DC Morgan advised the Applicant that he could contact counsel, but only after they had returned to the police headquarters building. Her reasons for denying the Applicant the opportunity to contact counsel before leaving the residence were twofold:

• She did not want to let him use a cell phone for fear that he might be able to destroy evidence on his computer by some remote means; and

• She was not confident that she could provide him with adequate privacy to speak with counsel while at the residence.

[93] DC Morgan noted that the Applicant was taken from the residence at 7:00 a.m. She remained in the residence until 9:51 a.m. while taking written statements from Armstrong and Cook.

[94] In cross examination, DC Morgan explained the reason for the delay that caused the DHS to abort the initial take down scheduled for October 18, 2010. In effect, DC Morgan was advised by the US authorities not to move on any targets as the international enforcement action was not yet ready to proceed. Marked as Exhibit "B" is an email from Senior Special Agent Neil O'Callaghan from the DHS, dated October14, 2010, which says:

"Twenty-seven members of Dreamboard were indicted yesterday and at this time we anticipate taking enforcement action against those potentially identified the week of November 15. (It has been pushed back a bit)…"

[95] There is no quarrel that the DHS, as the lead agency, was dictating the schedule for the execution of search warrants and the arrest of suspects everywhere, including Kingston.

[96] Moving then to Plan B, the revised take down date was scheduled for November 15, 2010. However, Plan B was aborted after DC Morgan learned that the individual(s) who lived at the initial target residence, 150 Pine Street, had moved.

[97] DC Morgan conceded that she was never able to determine the number of people residing either at 150 Pine Street or 1337 Crossfield Avenue. Rather, the difficulties that she was facing in the days leading up to the takedown scheduled for November 15, 2010, are best articulated in her email messages to members of the DHS, specifically:

(i) Exhibit #29: Email from Stephanie Morgan to Brian Korzak dated November 11, 2010 time 17:20 (5:20 p.m.)

"Hi Brian. Nice meeting you earlier this week! I just wanted to let you know that things are not yet confirmed yet for Monday. We have run into some snags here regarding residents of the initial target house [150 Pine Street] moving recently to a new address [1337 Crossfield Avenue]. I am waiting to hear from your counterparts in the US to see if they can locate a more recent IP address for me. So far there has been no luck since the target has started using proxies. I should know more tomorrow and will update you." (emphasis added)

(ii) Email from Brian Korzak to Stephanie Morgan dated November 11, 2010 time 5:22 p.m.

"Sounds good. Just let me know. Nice meeting you also. Brian"

(iii) Email message from Stephanie Morgan to Neil J. O'Callaghan dated November 11, 2010 time 17:34 (5:34 p.m):

"Hi Neil. I have spoken to Jim a couple of times today and he has been trying to find a recent valid IP address for our target, but no luck so far. I have noted that two residents of the original location have moved into a new house together. I suspect that one of them is our guy, but I have nothing to confirm that as of yet. If I had a more recent IP address (After September 8, 2010 move date), then I think we would be good to go. Without that we will have problems confirming the address to search. I am really hoping we can proceed. I will be in tomorrow to see if we can firm things up. If not, then we will at least have to postpone our action on this end." (emphasis added)

(iv) Email message from Neil O'Callaghan to Stephanie Morgan dated November 11, 2010 time 6:27 p.m.

Stephanie:

I understand. If we can't get you a recent IP tomorrow and you have to delay action, we'll deal with that. I'll call you tomorrow and we'll talk. Thanks for the heads up." (emphasis added).

[98] Accordingly, where DC Morgan concluded in her Operational Plan, under the heading "Special Problems": "Target(s) is unknown but is a resident of 1337 Crossfield Avenue", that statement was incorrect.

[99] The potential for the suspect's computer to be equipped with the encryption software was also of concern to DC Morgan. Indeed, she wrote to Neil O'Callaghan by email dated October 6, 2010, wherein she said:

"My concern is that his computer will be encrypted. We might not be able to get any evidence from it. In that case, we would have nothing else to rely on except any admissions – and in absence of those, we would have only the evidence provided by DHS. Judging by the posts by our target, it is evident that he uses encryption. We plan to have a tech on scene but if the computer is off and locked down when we get there, we may be out of luck. In Canada, to date, we have not had success in compelling an accused to provide passwords to police." (emphasis added)

[100] The email message from Neil O'Callaghan dated October 14, 2010, with the "Dreamboard International Enforcement Action.doc" attached, provided a response to DC Morgan's concerns about the potential for the target to be utilizing encryption software while the computer was off and locked down at the time of the search. To that end, recall Mr. O'Callaghan's advice:

"Additionally, it is suggested that surveillance be conducted of the suspect's residence to try and establish when the suspect may be using the computer. If possible, the search warrants/enforcement actions should be conducted when investigators feel it is likely that the suspect will be present and using the computer, as many encryption issues can be overcome if CFS's can access a system that is up and running v. powered down." (emphasis added)

[101] While DC Morgan initially assumed that a computer in the target residence might be up and running at 6:00 a.m., she eventually conceded that there were no grounds to support that assumption. She further conceded that there was no surveillance undertaken to establish when targets in the residence might be up and using their computers. At best, only "drive-bys" [^7]had been conducted at 1337 Crossfield Avenue.

[102] DC Morgan was cross examined regarding her reasons for denying the Applicant an opportunity to contact counsel from the residence. Recall that she would not let the Applicant use a cell phone because she feared he might be able to destroy evidence on the computer by some remote means. However, she conceded that ERU members disabled the computer cable running into the house immediately upon entry. To that end, no computer would have been available to communicate with a handheld device, such as a cell phone. As a result, if there was no way for the computer to communicate with a hand held device, then there was no way for data to be destroyed by some remote means. Accordingly, she admitted that she was mistaken. Her fallback position was that she could not have provided the Applicant with sufficient privacy to speak with counsel while still at the residence. Additionally, she was worried that he might be able to call someone on the phone to tip them off and have the "Dreamboard" taken down. That being said, she confirmed her practice of calling a lawyer directly and then handing the phone to the accused. She agreed that this practice would have solved the dilemma of an unknown third party being alerted. Moreover, there were areas in the residence where the Applicant could have been placed to speak to counsel, but she never discussed that possibility with the Applicant. In all of the circumstances, DC Morgan had made up her mind that the Applicant would not be allowed to speak to counsel while he was still at the residence. Rather, her email message to Neil O'Callaghan of October 6, 2010, was foremost in her thinking, where she said:

"My concern is that his computer will be encrypted and we might not be able to get any evidence from it. In that case, we would have nothing else to rely on except any admissions…"(emphasis added).

[103] The purpose for denying the Applicant the opportunity to speak to counsel was to afford the police more time and opportunity to persuade him to turn over his password and to extract from him any other admissions that he might offer up. To that end, Constable Frawley's persistence in questioning the Applicant regarding his password is particularly instructive.

[104] October 6, 2010, was an important day in terms of the US authorities becoming involved in the Kingston investigation. DC Morgan testified it was on this day that she first had contact with Agent Korzak. Further, Agent Korzak indicated his wish to attend during the enforcement action taken against "BossHiaka", and in fact asked to be present when the search warrant was being executed. That being the case, query why there wass no mention of Agent Korzak either in the ITO or the Operational Plan? The involvement of foreign police officers or foreign agents in Canadian investigations is not something that happens by chance. Rather, the involvement of Agent Korzak would have been anticipated and planned for. In that respect, consider the following email exchange:

DC Morgan: "Hi Brian. Nice meeting you earlier this week!" His reply: "Nice meeting you also". Where, how and why that meeting took place was never explained by DC Morgan. There is no doubt, however, that the two met in advance of the warrant being executed and that Agent Korzak was present during the briefing that occurred just prior. Further, there is no quarrel that Agent Korzak attended at 1337 Crossfield Avenue, in a Kingston Police vehicle with DC Morgan. Finally, there is no question that Agent Korzak was more than a passive observer while in the residence.

[105] Once inside the residence, DC Morgan conceded that she did not instruct Agent Korzak not to speak with any of the occupants. She also confirmed that she did not spend much time in his presence while inside. She was aware, however, that he was in the Applicant's bedroom at some point in time.

[106] DC Morgan confirmed that Agent Korzak entered the residence and left with her between the hours of 6:05 a.m. and 9:51 a.m. Finally, at some point during the search, Agent Korzak came downstairs to tell her about something that he had found in the Applicant's room.

[107] Returning to DC Morgan's email exchange with Neil O'Callaghan on November 11, 2012, recall that DC Morgan said:

"I had noted that two residents of the original location have moved into a new house together. I suspect that one of them is our guy but I have nothing to confirm that as of yet. If I had a more recent IP Address, (after September 2010 moving date) then I think that we would be good to go. Without that, we will have problems confirming the address to search."

[108] When cross examined regarding this exchange, DC Morgan conceded that she needed a connection from one address to the other (150 Pine Street to 1337 Crossfield Avenue). As she admitted: "that would have been the best".

[109] In the absence of "the best", DC Morgan began to assemble a circumstantial case in hopes of linking an individual from 150 Pine Street to 1337 Crossfield Avenue. One such attempt focused on internet service provided by Cogeco to 1337 Crossfield Avenue, registered in the name of "Datahostmax". This service was described to her as Cogeco's "Ultimate 50", which provided unlimited data for approximately $200.00 per month. It provided 8 IP addresses and was considered to be reserved for internet service providers or for web services. Further, the telephone number provided by Cogeco for the subscriber at 1337 Crossfield Avenue was the same telephone number associated in September, 2010, to Michael Cook. As DC Morgan said in paragraph 155 of the ITO:

"BossHiaka has made efforts to conceal his identity and avoid being detected by the police. For this reason, I believe he may store a server and/or computer equipment in the detached garage located on the property at 1337 Crossfield."

[110] In emails captured by the U.S. authorities there was talk of the targets relocating their server away from North America. However, never was there any indication that the targets would locate their server in Canada. That said, paragraph 155 of the ITO seems to suggest that possibility. In cross-examination, DC Morgan conceded that all indications were pointing away from Canada as being the likely site of a new server for "Dreamboard".

[111] In the same vein, DC Morgan attempted to link "BossHiaka" to St. Lawrence College as she learned that was where the Applicant was attending school in the Computer Network and Technology program. As she deposed in paragraph 146 of the ITO:

"Brandon Lane is currently attending St. Lawrence College, where he is enrolled in the computer network and technology programming. Similarly "BossHiaka" has discussed on line that he is currently attending school."

[112] In cross examination, DC Morgan conceded that this statement was not entirely correct. Attached to Exhibit #25, an email from Neil O'Callaghan to DC Morgan, dated October 6, 2010, is a string of email messages between "BossHiaka" and "Lofty". As Mr. O'Callaghan says in the last two sentences: "towards the bottom of the PDF I have highlighted the communication between "Lofty" and "BossHiaka" where "Lofty" asks him about being in school. I thought you might find it of interest."

[113] Mr. O'Callaghan was quite right in characterizing the exchange of emails as "Lofty" asking "BossHiaka" about being in school. The trouble arises when the responses from "BossHiaka" to "Lofty" are elevated to confirm that "BossHiaka" was indeed attending school. Based on a close review of the exhibit, at no time does "BossHiaka" discuss that he is currently attending school, which is of course the point of trying to establish circumstantially that "BossHiaka" and the Applicant are one and the same person. When DC Morgan was confronted with the fact that "BossHiaka" never discussed that he was currently attending school, she replied: "Not that I can recall right now. I did look through thousands of postings, so I am not sure."

[114] By November 18, 2010, 1337 Crossfield Avenue was identified as the new target residence. DC Morgan recalled having discussions with Sergeant Bracken advising him that the address had changed. What did she know about 1337 Crossfield Avenue at that point in time? She did not know the number of people living in the residence, although she knew that neither the Applicant or Cook had any weapons registered to them, nor did they have criminal records. Further, there was no information to suggest a dog or dogs at the residence. Accordingly, it was determined that the potential for violence or guns was low.

[115] There is no mention in the ITO or in the Operations/Incident Plan regarding the use of distraction devices, which DC Morgan conceded. That said, DC Morgan confirmed that the use of distraction devices was discussed with Sergeant Bracken prior to her attendance at the Justice of the Peace on November 22, 2010. DC Morgan was not sure why the use of distraction devices was omitted from the ITO. She admitted that it must have been an oversight on her part.

[116] DC Morgan confirmed that she never discussed the use of handcuffs with Sergeant Bracken at any time prior to execution of the warrant. Further, Sergeant Bracken never told her that handcuffs would be used to secure the occupants of the residence. Finally, DC Morgan never asked for handcuffs to be used to secure the occupants.

Constable Derek Frawley

[117] Constable Derek Frawley is posted to the computer forensic section of the Kingston Police.

[118] Constable Frawley's knowledge of Truecrypt software was limited to information that he gleaned from the Truecrypt website. He advised DC Morgan that in the event "Truecrypt" software was running on a computer and the computer was shut off, there would be a problem in terms of accessing data on the computer.

[119] Constable Frawley was of the view that it was necessary to access the target's computer while the computer was still running. This clearly fits with the advice provided to DC Morgan in the attachment to Neil O'Callaghan's email message dated October 14, 2010, Exhibit # 26. Moreover, Constable Frawley testified that the "Ultimate 50" internet service provided by Cogeco would not require the user to leave a computer running overnight in order to download material. Rather, the speed at which this internet service could download material was fast enough to accommodate downloading large amounts of data in very short periods of time. Accordingly, DC Morgan's assumption that a computer would be up and running at 6:00 a.m. as a result of being left on to download child pornography was unfounded.

[120] Constable Frawley entered 1337 Crossfield Avenue at approximately 6:07 a.m. He entered the residence within minutes of the ERU team members. He went immediately downstairs to locate the internet connection, which he severed.

[121] Constable Frawley then made his way to the Applicant's bedroom. ERU members were already present. Constable Villeneuve of the Ottawa Police was there as well. Constable Frawley observed that the Applicant could not reach the computer from where he was positioned and secured by the ERU members.

[122] Constable Frawley did not advise the Applicant of his right to counsel, nor did he hear anyone else do so. Nonetheless, Constable Frawley repeatedly asked the Applicant for his password.

[123] Constable Frawley explained that the use of encryption software effectively decrypts data on the fly. Put another way, it is only the data that is visible that is decrypted. The program never decrypts data on the hard drive. It would defeat the purpose of encryption software to mount the decryption key or password and walk away and leave the computer on. Accordingly, DC Morgan's assumption that the computer would be up and running at 6:00 a.m. and accessible for the team members to search, while the target was in bed asleep, was unfounded for this reason as well.

[124] Constable Frawley confirmed that there was no apparent Bluetooth capability at 1337 Crossfield so as to be available to erase data by means of a remote, handheld device.

[125] Agent Korzak was also present in the Applicant's bedroom when Constable Frawley was there. Constable Frawley recalled Agent Korzak speaking with the Applicant. He could not recall the exact conversation, other than hearing Agent Korzak tell the Applicant: More than Kingston is involved. Homeland Security is involved in this, or words to that effect. Query why Agent Korzak would have described the scope of the investigation to the Applicant? Was it meant to suggest to the Applicant that he was caught up in something much larger than he might have anticipated?

[126] Finally, Constable Frawley recalled there were at least five if not six police officers present in the Applicant's bedroom and that not one of them provided the Applicant with his right to counsel, that he heard.

Detective Constable Jason Cahill

[127] DC Cahill was the exhibit officer assigned by DC Morgan to organize the search and ensure continuity of the exhibits at the scene. He was assisted by DC's Nadine Legare, Jim Veltman, Jeff Thompson and Constable Frawley. DC Legare had additional responsibilities as the Scenes of Crime Officer (SOCO). As such, she was assigned to photograph the residence and the exhibits.

[128] Following the search, DC Cahill could not recall if that they put the furniture back in place after it was moved. Further, DC Cahill could not recall Constable Legare taking any photographs after the search was completed in terms of the overall state of the residence. Of note is Phase 4 in the Operations/Incidents Plan, (Exhibit #12), where it says:

"Post assault (scene search). Once the scene is secure Legare shall photograph any damage and evidence found within. Overall photographs will be completed prior to the search."

Detective Constable Jim Veltman

[129] DC Veltman entered the residence after 6:00 a.m., following the ERU members.

[130] DC Veltman had the opportunity to review the general state of the residence, particularly the bedrooms. All three bedrooms were described as having some clutter on the floor, but they were not dirty.

[131] DC Veltman described his searching of drawers as very thorough. He said that he would move items aside and look closely through the drawers. When confronted with the suggestion that dresser drawers were dumped out on the floor, DC Veltman's response was: "My job is to search under the warrant, not to tidy the house." He dismissed the idea of putting everything back in place, which he said would require him to stay in the house longer than he might otherwise need to.

[132] DC Veltman confirmed that all of the evidence was seized pursuant to the warrant and by no other authority.

DC Nadine Legare

[133] DC Legare was a member of the search team as well as being the SOCO assigned to the scene.

[134] DC Legare was also assigned to conduct surveillance on the residence for approximately 30 minutes prior to the ERU team entering. She positioned herself in a police motor vehicle across the street from the residence along with DC Thompson.

[135] Although the Operations/Incident Plan called for DC Legare to take overall photographs prior to the search, she failed to do so. Admittedly, she now takes photographs prior to every search. In the circumstances, there were no photographs produced by the Respondent to show the damage done to the residence following the completion of the search. As a result, the photographs appended as Exhibits to Ms. Lane's Affidavit stand alone, uncontradicted.

Detective Constable Thompson

[136] DC Thompson attended with DC Legare to conduct surveillance in advance of the search. They detected no lights in the windows prior to the ERU team members arriving and picking the lock on the front door.

[137] As a member of the search team, DC Thompson noted that he remained in the residence until 10:40 a.m. Accordingly, the search team members were in the house for almost five hours.

Sergeant Christopher Bracken

[138] Sergeant Bracken was the leader of the ERU team at the time of the search.

[139] Ultimately it was Sergeant Bracken's call as to what type of entry would be used.

[140] Sergeant Bracken assessed this situation as being one of low risk for weapons and violence.

[141] Ideally, Sergeant Bracken said that if they were able to find people in bed asleep, "That would be pretty ideal. We would get them by surprise". This scenario, was, of course, contrary the advice provided by the DHS in the by e-mail dated October 14, 2010. (Exhibit #26). Indeed, in many respects, the ERU and the search team headed by DC Morgan appear to have been working at cross purposes.

[142] Sergeant Bracken discussed the use of distraction devices. He described them as grenades that cause a loud bang and a flash of light. The purpose of the devices is to draw attention away and to "blind them". No explanation was given as to why it would be necessary to divert the attention of people who were sleeping, or to blind people whose eyes were closed.

[143] Sergeant Bracken did discuss the use of distraction devices with DC Morgan early on in the investigation. The Operations/Incident Plan for the DRU was marked as Exhibit #24. However, under the "Case Background" subheading, distraction devices are not mentioned, specifically:

"At this time there is no information of any weapons in the residence or that these subjects are in any way violent. The two males believed to be living there have no record, or any reports through the special services. As well, there are no weapons registered to these people or the residence. The dynamic entry is for the purposes of protecting disposable evidence."

[144] Members of the ERU participated in two briefings. The first briefing was organized by DC Morgan at 5:00 a.m. The ERU then conducted its own briefing at 5:19 a.m. It was never explained as to why Sergeant Bracken never discussed with DC Morgan that ERU members would be securing the "found ins" by use of handcuffs, as it says under Phase 3: Dominate/Search/Secure/Secondary Searches: "All found-ins will be secured in place and held for CID. Once the structure is secure, the secondary searches will be performed and the prisoners handcuffed. (Emphasis added). In all of the circumstances, it appears that the ERU treated all of the occupants as "prisoners", who were never advised of the reason for their detention or of their right to counsel.

[145] Sergeant Bracken was asked to comment on the phrase "stealth to contact". He explained that after picking the lock on the door, ERU members would move stealthily to the location of the occupants. The first officer up the staircase, Constable Shawn Leblanc, was positioned at the top of the stairs when he threw the distraction device. By reference to Exhibit #5, being the layout of the home, he would have been within mere feet of each of the three bedroom doors. It was at this point that the entry shifted to "dynamic". Sergeant Bracken's explanation as to why "stealth to contact" was not used throughout was explained thus: We were going into someone else's home with 10 officers it would have been difficult to do so quickly. The fact is, the ERU members were in the home, just outside of the bedrooms, with doors that were unlocked, if not partially open, when a flash grenade was used to divert the attention of the occupants who were all asleep.

[146] To compound matters, Sergeant Bracken testified that distraction devices were used on the outside of the home as well. The picture that emerges is one of the occupants being awakened from their sleep with grenades going off in the house and outside the house, completely disoriented, while the ERU members had already successfully penetrated the home to the point of the bedroom doors in a stealth manner. Had they simply turned the door knobs or pushed the doors open, there would have been no need for the entry to have shifted from stealth to dynamic.

[147] Sergeant Bracken testified that the members were wearing their regular outfit/regular duty attire, which consisted of light body armor, ball cap and no balaclava. This evidence was contradicted by the earlier testimony of DC Morgan who said that she could not identify the ERU members in the Applicant's bedroom because their faces were partially covered, which implied the use of balaclavas.

[148] Sergeant Bracken confirmed that two of the officers who entered the bedroom occupied by Ms. Armstrong and Mr. Cook drew their weapons. The reason given for doing so was that one of the people in the bed was reaching back under a pillow, an action which was equally consistent with [Mr. Cook] being asleep. In any event, the evidence regarding the presence of individuals with drawn weapons and balaclavas is consistent with Ms. Armstrong's distinct impression that they were about to be robbed and murdered. For these reasons, her impression was well founded.

[149] Sergeant Bracken confirmed that it was "dark in the house". The only light on was in the kitchen. Exhibit #5 shows the kitchen located on the first floor, with no indication that the light would have penetrated to the point of the staircase and to the upstairs hall and bedrooms.

[150] Sergeant Bracken was at the bottom of the staircase when the distraction device went off in the house. He could not tell whether the inside distraction device went off at the same time as the outside distraction devices.

[151] Sergeant Bracken first entered bedroom number 3, being the room occupied by Mr. Carrigan. He "might have said police don't move" although he was not sure of that. He then entered bedroom number 2, which was occupied by the Applicant. He then entered the master suite occupied by Ms. Armstong and Mr. Cook.

[152] Sergeant Bracken recalled that the Applicant was in bed when he entered bedroom number 2 and that "PC Alblas had him under control verbally…he was compliant". He believed that PC Alblas may have told the Applicant that he was under arrest but was not sure that the Applicant had been cautioned regarding his right to counsel. Notwithstanding that the Applicant was under control and compliant, he was handcuffed awaiting the arrival of the detectives.

[153] Sergeant Bracken confirmed that this was the first time that they had used a surreptitious entry.

[154] Sergeant Bracken confirmed that distraction devices are in fact explosive devices and that there is a potential risk for harm. In this case, there was smoke and burning caused by the distraction device thrown inside the house. The memorandum that he prepared following the search was marked as Exhibit # 31. On page two of the report under the subheading "Outcome", it says:

"The warrant was successfully executed and four found-ins were detained for CID. No injuries resulted from the entry. Entry was gained by use of stealth with the assistance of S/Sgt. Edwards. There was no damage to the front door but there was damage to two interior doors, one from the distraction device and one from being breached. As well, the upstairs carpet was marked by the distraction device."

[155] The photographs marked as Exhibits #7, #8, #9 and #11 clearly show that there were injuries to Mr. Cook which resulted from the entry. Moreover, Ms. Armstrong testified to injuries that she sustained as a result of the entry.

[156] The damage inside the residence was not limited to two interior doors, as photographs B through M of Nancy Lane's Affidavit sworn October 30, 2011, clearly show.

[157] To say that the upstairs carpet was "marked" by the distraction device is a gross understatement. Exhibit "C" to the Affidavit of Ms. Lane's shows the front of the Applicant's front door with a hole blown through the right hand side, at the bottom. The outside of the door is marked by flames. The carpet in front of the door is burnt. There was evidence of sufficient smoke inside the house requiring the windows to be opened and the fire department to be called. The hole on the inside of the Applicant's door is larger than on the outside. Ms. Lane further testified that pieces of the door were blown across the room. The door knob was bent. There was structural damage and cracks in the walls sustained throughout the house.

[158] Sergeant Bracken confirmed that it was standard practice not to throw a distraction device at a person. He said that he would typically throw a distraction device when there was a threat of violence from inside a residence. By reviewing his notes, he then confirmed that by November 18, 2010, DC Morgan confirmed there were no dogs or weapons in the house. The threat of violence was determined to be low. Indeed, the "Case Background" of the Operations/Incident Plan, Exhibit #24, specifically says "It is believed that they may be students. At this time there is no information of any weapons in the residence or that the subjects are in any way violent." Yet, with no further information to contradict this assessment, Sergeant Bracken decided that it still was necessary to use a distraction device at the time of entry.

[159] Sergeant Bracken confirmed that the house was in darkness and there was no depiction of movement when they arrived. After they gained entry through picking the lock there was a stealth entry. They moved quickly and as quietly as they could. They made it to the top of the stairs in the dark with no detection of any movement in the house whatsoever. The upstairs was in darkness when Constable LeBlanc threw a distraction device. Finally, Sergeant Bracken confirmed that none of the bedroom doors were locked. Rather, they could have walked freely into every room.

[160] Sergeant Bracken recalled that there was someone there from the DHS involved in the search, but he did not know his name. He recalled that the representative from the DHS was also present at the briefing. He knew that this person was not a Kingston Police Officer but an Agent of the U.S. government.

[161] Sergeant Bracken testified regarding how the occupants of the residence were secured. He said it was standard operating procedure for ERU to handcuff prisoners and that he and DC Morgan would have discussed this around November 18th. In contrast, DC Morgan said they never discussed the handcuffing of the occupants and she never knew that the occupants would be handcuffed, notwithstanding that it is clearly set out in ERU Operations/Incident Plan (Exhibit #24), where it says:

"Once the structure is secure, the secondary searches will be performed and the prisoner's handcuffed".

Constable Shawn Leblanc

[162] The evidence of Constable Shawn LeBlanc was taken out of Court on November 4, 2011, under oath. The following excerpts are worthy of note from his evidence in Chief.

Page 11

18 45 Q. Okay. And did you have any

19 particular assigned role on that day?

20 A. I was the first person to make

21 entry and I was to deploy a distraction device once

22 we got upstairs.

Page 13

2 ....We made our way to the stairs

3 which were more in the center of the house, to the

4 right, on the right wall, I guess, if you're

5 looking at the face of the house. And then we

6 made -- up the stairs, and the bedrooms were

7 upstairs.

Page 15

14 63 Q. Did you eventually go upstairs?

15 A. Yes.

Page 16

5 65 Q. And did you go to the top of the

6 stairs?

7 A. Yes.

8 66 Q. What did you do when you reached

9 the top of the stairs?

10 A. Just before I reached the top of

11 the stairs, I deployed my distraction device to the

12 left and then I went into the room to the immediate

13 right at the top of the stairs.

14 67 Q. Okay. I'm going to ask you a few

15 questions about that. First of all, who was the

16 first person to reach the top of the stairs in your

17 team?

18 A. Myself.

19 68 Q. And could you describe for us,

20 please, what the layout of the upstairs of the

21 house looked like?

22 A. The top of the stairs, there's a

23 small hallway landing. There's a door to the right

24 as you get to the stop of the stairs. There's a

25 door to the far left at the end of the little mini

Page 17

1 hallway. There's a door, umm, if you're looking...

2 If you get to the top of the stairs and you turn

3 left, there's a door straight ahead and there will

4 be a door to your right, which will be another

5 bedroom, and the bedroom ahead.

Page 21

19 89 Q. So after you set off the

20 distraction device, what did you do?

21 A. I made entry into the bedroom to

22 the right of the stairs.

23 90 Q. The bedroom that was to the right,

24 at the top of the stairs; how much space was there

25 between the top of the stairway and the entrance to

Page 22

1 the bedroom?

2 A. There's not much room, at all.

3 You go to the top of the landing and the doorway is

4 immediately on your right.

Page 23

12 95 Q. Thank you. So you told us that

13 you went into the bedroom at the top of the stairs,

14 to the right?

15 A. Yes.

16 96 Q. How did you get in, or how did

17 you...? Let me ask you an earlier question.

18 The bedroom doors, the bedroom doors on

19 the second floor of this house; were they all open

20 or closed?

21 A. Closed.

22 97 Q. So the bedroom that you entered at

23 the top of the right-hand side, top of the stairs

24 at right-hand side; how did you get that bedroom

25 door open?

00024

1 A. Open the door.

2 98 Q. Was it locked or unlocked?

3 A. Unlocked.

Page 24

16 102 Q. Did you find anybody in the

17 bedroom when you went in?

18 A. Yes.

19 103 Q. And what -- who did you find?

20 A. There were two people sleeping in

21 the bed.

22 104 Q. Were any other officers present

23 with you when you went into the room?

24 A. Yes. Officer Harry Brewer came

25 with me.

Page 25

6 106 Q. Did you deal with one or the other

7 or both of the people there?

8 A. I dealt with the one person.

9 107 Q. And was there two males in the

10 bed? Two females? A male and a female?

11 A. It was a male and a female.

12 108 Q. A male and a female. And which

13 person did you deal with; the male or the female?

14 A. The female.

15 109 Q. And you talked about securing

16 people in the bed, so we're now speaking about you

17 securing the female?

18 A. Yes.

19 110 Q. And how did you secure her?

20 A. Physically took ahold of her and

21 then handcuffed her.(Emphasis added)

22 111 Q. And where did you do that?

23 A. On the bed.

24 112 Q. Did you speak to the female, at

25 all?

Page 26

1 A. Not that I can recall.

2 113 Q. Did you ask any identifying

3 questions of any nature?

4 A. Yes. Once she was secure, we

5 asked her to identify herself.

6 114 Q. And did she identify herself?

7 A. Yes.

8 115 Q. And did you make a note of the

9 name of the person who identified themselves?

10 A. Yes.

11 116 Q. And what was the name of that

12 person?

13 A. Alison Armstrong.

14 117 Q. Thank you. Did you question

15 Ms. Armstrong, at all?

16 A. No.

17 118 Q. Did you answer any questions that

18 Ms. Armstrong may have had for you?

19 A. Yes.

Page 27

1 A. She asked me what we were there

2 for. Told her it was for a warrant and the

3 investigators would be in later to explain it to

4 her.

5 120 Q. And did you have any other verbal

6 exchange with her beyond that?

7 A. No.

[163] Undercross-examination, Constable Sean Leblanc said:

Page 47

20 250 Q. And would you describe the entry

21 on November 26th, 2010, at 1337 Crossfield Avenue

22 in Kingston as being a dynamic entry on the part of

23 the police?

24 A. No.

25 251 Q. Why not?

Page 48

1 A. When we made entry into the

2 structure on the first level, it was more of a

3 stealth, slow entry.

4 Once the distraction device was

5 employed, then it became dynamic.

Page 51

6 271 Q. All right. Do you have

7 specialized training in what circumstances a

8 distraction device may be employed?

9 A. No specialized training in that,

10 no. (Emphasis Added)

11 272 Q. Do you have any specialized

12 training in when a distraction device should not be

13 utilized?

14 A. Not specialized training. We

15 just... We're told that you could -- whoever runs

16 the warrant at the time will determine if we use

17 the distraction device or not.

18 273 Q. Okay. And so are there any

19 standard procedures as to when you might decide not

20 to use a distraction device because, for example,

21 it might be unsafe?

22 A. Whether -- they're not standard

23 procedures, but usually when there's small children

24 or elderly people in the house.

Page 52

18 279 Q. Okay. And what, if any, safety

19 concerns do you consider prior to deploying in the

20 general course?

21 A. Not to throw them directly at

22 persons, umm, keep them off furniture.

23 280 Q. And why is it best to keep them

24 off furniture?

25 A. There's a possibility that a fire

Page 53

1 could start.

2 281 Q. Are you trained, then, to deal

3 with any possibility of smoke or fire resulting

4 from the deployment of a distraction device?

5 A. Not specialized training, no.(Emphasis added)

6 282 Q. So, for example, you're not

7 required to carry a fire extinguisher; anything

8 like that?

9 A. We are not required to, no.

Page 55

5 296 Q. And when he first told you about

6 your involvement - so now, this is before the

7 briefing with Detective Morgan - was there any

8 discussion with him about the method or plan of

9 entry?

10 A. Not that I can recall.

11 297 Q. Was there any discussion regarding

12 the use of devices for entry?

13 A. Not that I can recall.

Page 62

17 341 Q. And what did you understand your

18 role to be that day?

19 A. I would be the first person into

20 the -- first member of the Emergency Response Unit

21 into the residence, I would deploy the distraction

22 device, and then I would make entry into one of the

23 rooms upstairs.

Page 65

22 362 Q. Okay. So did you understand that

23 in deploying the device, you had discretion as to

24 how to deploy it? Is that fair?

25 A. Correct.

Page 68

18 371 Q. Were you ever told that a member

19 of either of Ottawa Police Service or an agent from

20 the U.S. Department of Homeland Security were going

21 to be involved in the investigation that day?

22 A. Yes. (Emphasis added)

23 372 Q. You were?

24 A. Yes.

25 373 Q. Who told you that?

Page 69

1 A. Detective Morgan.

2 374 Q. And what did you understand their

3 role was going to be?

4 A. They would be accompanying them --

5 ---(Noise of tires screeching on the

6 street outside disrupts the Examination.)

7 THE DEPONENT: Jeepers.

8 They would be accompanying them to the,

9 the residence at 1337 Crossfield.

10 BY MS. BETHELL:

11 375 Q. And did you understand why that

12 was to be?

13 A. No.

14 376 Q. So you did not understand the

15 reason why?

16 A. No.

Page 70

24 385 Q. Okay. And so you understood your

25 instructions then, if I've understood it correctly,

1 to deploy the device before you got to the top of

2 the stairs no matter what?

3 A. Yes. (Emphasis added)

Page 72

5 393 Q. And continuing now, just trying to

6 understand the discussions that occurred at the

7 briefings with both Detective and (sic) Morgan and

8 Sergeant Bracken, was there any discussion about

9 safety precautions for you in the deployment of the

10 distraction device?

11 A. Deploy it away from myself. (Emphasis added)

Page 73

2 399 Q. And was there any discussion at

3 the briefing about safety precautions for any of

4 the occupants in the house?

5 A. Not that I recall. (Emphasis added)

Page 79

22 438 Q. And you had no information about

23 whether or not the occupants of the house were

24 violent or could react violently?

25 A. Not that I recall, no. (Emphasis added)

Page 80

1 439 Q. In any event, during the briefing,

2 this was not something that was a concern. Is that

3 fair?

4 A. Not, not that I recall. (Emphasis added)

5 440 Q. In any event, the primary purpose

6 of the dynamic entry was to create the element of

7 surprise. Is that fair?

8 A. Correct. (Emphasis added)

9 441 Q. All right. And in any event, that

10 was probably likely going to be achieved since the

11 understanding was that the occupants were likely

12 asleep. Is that fair?

13 A. Correct. (Emphasis added)

Page 81

6 447 Q. Of your understanding of

7 distraction devices, are distraction -- I mean,

8 there are sort of these terms being used. One is a

9 "distraction device" and other terms I've seen used

10 are "flash grenades" or "stun grenades". Are these

11 all the same things, in your understanding?

12 A. Yes.

Page 82

20 457 Q. And presumably, the combustive

21 effect of a distraction device is quite

22 substantial, given the impact to the door that we

23 see on Exhibit 4. Is that fair?

24 A. Yes. (Emphasis added)

25 458 Q. And in your experience in

Page 83

1 deploying distraction devices, do you know that the

2 force of the explosion can break glass? Is that

3 fair?

4 A. I don't recall if it can or not.

5 459 Q. Okay. So you have no experience

6 in seeing the consequences of the, or the

7 combustive effect of distraction devices?

8 A. Other than that day, no.

25 464 Q. Are you aware that distraction

Page 84

1 devices can ignite flammable materials and live

2 wires near where the device is deployed?

3 A. Yes. (Emphasis added)

4 465 Q. Okay. And I presume that is an

5 element that factors into the safety precautions

6 that you take when deploying a device. Is that

7 fair?

8 A. Yes.

Page 85

8 471 Q. Okay. And in this particular

9 instance, what were the safety precautions that you

10 took in determining how and where you were to

11 deploy the device?

12 A. I noticed that all the doors were

13 closed and there was small open area in which to

14 deploy the device.

Page 90

1 504 Q. Okay. So can you walk me through,

2 then, exactly what happened when Staff Sergeant

3 Edwards picked the lock?

4 A. Once he got the lock picked, he

5 backed away, we opened the door, we made a stealth

6 or a slow entry into the main floor of the

7 residence.

10 506 Q. Can you explain what "stealth" or

11 "slow entry" means?

12 A. We walk slowly, trying to not make

13 any noise.

14 507 Q. And what observations of the house

15 did you make at that time?

16 A. The house was in darkness and it

17 was quiet. (Emphasis added)

18 508 Q. And when you say "in darkness", it

19 was dark outside, right?

20 A. Correct.

21 509 Q. And there were also no lights

22 turned on inside, right?

23 A. Correct.

24 510 Q. And when you say "it was quiet", I

25 presume you didn't hear any coffee perking?

Page 91

1 A. (Shaking head.)

2 511 Q. ...percolating, any toilets

3 flushing?

4 A. Correct.

5 512 Q. Or anyone walking around upstairs,

6 right?

7 A. Correct.

11 514 Q. And at some point, then, you make

12 an observation of the staircase, right?

13 A. Correct.

14 515 Q. And how did you see the staircase

15 if it was in total darkness?

16 A. There's still enough ambient light

17 that you can see inside.

18 516 Q. Okay. So you didn't have a

19 flashlight on?

20 A. I can't recall.

21 517 Q. And you were the first one into

22 the house, right?

23 A. Correct.

Page 92

21 523 Q. Okay. So I presume that the whole

22 point of the stealth entry, as you've described it,

23 is to not announce your presence, right?

24 A. Correct.

25 524 Q. And to give no signal of your

Page 93

1 presence to the occupants, right?

2 A. Correct.

3 525 Q. And you don't recall whether your

4 weapons were drawn?

5 A. Correct.

6 526 Q. And you don't recall whether or

7 not you were using a flashlight?

8 A. Correct.

9 527 Q. Okay. So then I take it you began

10 to move up the stairwell, right?

11 A. Correct.

12 528 Q. And you did so slowly?

13 A. Yes.

14 529 Q. Okay. And what was the first

15 thing that you saw as you went up the stairwell?

16 A. Umm. There was the landing. We

17 got to the landing. I could turn around and see up

18 to the actual second floor and I observed the

19 doors, umm, all the doors to be closed.

Page 94

14 533 Q. All right. And did you make your

15 way up any part of the second part of the

16 staircase?

17 A. Yes.

Page 97

21 553 Q. Okay. So you came up to the part

22 which separates the two stages of the staircase, if

23 I can put it that way?

24 A. Correct.

25 554 Q. Okay. And you went no further,

Page 98

1 right?

2 A. No. Eventually, I came all the

3 way up.

4 555 Q. Okay. But prior to deploying the

5 distraction device, the furthest you came up the

6 stairwell was the landing. Is that--

7 A. No.

8 556 Q. --fair?

9 A. No.

10 557 Q. Okay. So how far, prior to

11 deploying the distraction device, did you come?

12 A. I don't recall which stair exactly

13 it was. It was between the landing and then, I

14 guess, the second floor landing.

15 558 Q. Okay. So it would be fair to say

16 that you came up partway of the second set of

17 stairs?

18 A. Yes.

19 559 Q. All right. But you're not -- you

20 don't recall exactly how far?

21 A. Correct.

22 560 Q. Okay. And how long did you stay

23 in the area of the stairwell prior to deploying the

24 distraction device?

25 A. Once I deployed the device, I made

Page 99

1 my entry into, if I can go from the second floor

2 layout, to the master suite.

3 561 Q. Can I stop you there because my

4 question was, how long did you remain in the area

5 of the stairwell prior to deploying the distraction

6 device?

7 A. It was one motion from going from

8 this landing to the second floor, deploying the

9 device and then making entry. It was one.

10 562 Q. Matter of second?

11 A. Yes.

12 563 Q. All right. So it wasn't like you

13 were creeping slowly up the stairs, stopping and

14 listening and make observations prior to deploying

15 the device, right? All --

16 A. Correct.

17 564 Q. Okay.

18 A. Correct. All one motion.

19 565 Q. All one motion. Fair enough.

20 And in fairness to you, even though

21 that was all one motion, you didn't detect any

22 movement?

23 A. No, I didn't detect, detect any

24 movement.

25 566 Q. And since it was all pretty quick

Page 100

1 and all one motion, you probably didn't have a lot

2 of time to make too many observations, right?

3 A. Correct.

4 567 Q. And in fairness to you, at this

5 point, since all the doors were closed, it was

6 probably really dark, right?

7 A. Correct.

8 568 Q. And not much ambient light there

9 on that second floor?

10 A. Correct.

11 569 Q. Okay. And you don't recall

12 whether or not you had your flashlight on?

13 A. I didn't have my flashlight. I

14 recall that I didn't have my flashlight.

Page 103

13 590 Q. And so, if I understand it

14 correctly, you turned to the right, you went into

15 the bedroom, and at some point, someone turned on

16 the lights in that bedroom. Is that correct?

17 A. Correct.

18 591 Q. Okay. And who did that?

19 A. I'm not sure. I don't recall who

20 did it.

Page 104

8 595 Q. Now, I understand that when you

9 entered the bedroom to the right, the door was

10 unlocked. Is that right?

11 A. Correct.

Page 105

5 602 Q. All right. And you told my friend

6 that you pulled the blankets off the two people who

7 were sleeping in bed, right?

8 A. Correct.

9 603 Q. Okay. Did you see them sleeping?

10 A. Yes.

11 604 Q. And you said that you arrested

12 them. And can you tell me how you arrested, I

13 guess it was Ms. Armstrong?

14 A. Physically grabbed her and then

15 handcuffed her.

20 606 Q. Okay. So she was handcuffed while

21 she was in bed?

22 A. Correct. (Emphasis added)

23 607 Q. Okay. And when you say you

24 pulled her out, does that mean you pulled her up or

25 what did you do exactly?

Page 106

1 A. Turned her over.

5 609 Q. Okay. So if you can walk me

6 through that. You pulled one of her arms up?

7 A. I don't recall how I grabbed her.

8 610 Q. Okay. But you do recall

9 handcuffing her?

10 A. Yes. (Emphasis added)

11 611 Q. Okay. And what did you say to her

12 when you did that?

13 A. I don't recall what I said to her

14 exactly.

15 612 Q. Okay. Did you caution her in any

16 way?

17 A. No.

18 613 Q. Okay. And did anyone else in your

19 presence caution her?

20 A. Not that I recall, no. (Emphasis added)

21 614 Q. Do you recall what she was

22 wearing?

23 A. No.

24 615 Q. Do you recall whether she asked to

25 put any clothes on?

Page 107

1 A. No, I don't recall that.

2 616 Q. Okay. Do you recall anyone

3 helping her put clothes on?

4 A. Not that I recall, no. (Emphasis added)

19 620 Q. Okay. And do you recall how long

20 Ms. Armstrong was restrained in handcuffs?

21 A. No.

Page 108

24 628 Q. Okay. Did you observe any damage

25 from the distraction device when the lights were

Page 109

1 turned on?

2 A. Yes.

Page 110

19 639 Q. All right. And among the damage

20 that you observed in the hallway of the second

21 floor was the damage that we were just referring to

22 earlier in this Examination, such as that which is

23 represented in the photograph which is Exhibit 4?

24 A. Correct.

Page 113

5 649 Q. And, Officer, did anything change

6 about the plan for entry and deployment of the

7 device from the time of the briefing up to the

8 entry into the home?

9 A. Not that I recall, no.

10 650 Q. Did anything change about the plan

11 for entry and deployment of the device, distraction

12 device from the entry into the home until the time

13 at which you deployed the device?

14 A. Not that I can recall, no.

Page 115

2 663 Q. Are you familiar with the term

3 "high risk warrant"?

4 A. Yes.

5 664 Q. Okay. And what do you know it to

6 be?

7 A. A "high risk warrant" is one where

8 there's a risk of danger to the, to the officers;

9 possibly a firearm or other kind of weapon

10 involved, dangerous person inside.

11 665 Q. And was this a term used at either

12 the briefing with Detective Morgan or Sergeant

13 Bracken earlier that day?

14 A. Not that I recall, no.

15 666 Q. Was it a term used at the debrief

16 at the end of the day?

17 A. Not that I recall. (Emphasis added)

Page 116

2 670 Q. Was it your understanding that a

3 distraction device was to be employed -- deployed

4 outside the premises?

5 A. Yes.

6 671 Q. Okay. And tell me what your

7 knowledge was with respect to that.

8 A. That officers would go to the back

9 of the residence and deploy distraction devices.

Page 125

16 739 Q. In your training, was there any

17 discussion about whether or not these devices are

18 dangerous?

19 A. Not that I recall, no.

20 740 Q. Would you agree with me that they

21 can be dangerous if they aren't deployed properly?

22 A. Correct. (Emphasis added)

[164] Re-examination of Constable Shawn Leblanc

Page 128

15 752 Q. Thank you. My friend was asking

16 you about the level of light that was in the house

17 and you advised her that you didn't have your

18 flashlight.

19 Do you know whether anyone else in the

20 team was providing light for your entry into the

21 upstairs of the home?

22 A. I can't recall.

[165] ISSUES:

a. Validity of the search warrant;

b. Manner of the search;

c. s. 24(2) of the Charter.

a. Validity of the search Warrant

[166] The central issue raised in this Application is whether the evidence seized from 1337 Crossfield Avenue, on November 26, 2010, and now relied upon in support of the request for the Applicant's extradition, satisfies the Rules of Evidence under Canadian law. If it does not, under s.32(2) of the Extradition Act, this evidence is inadmissible in the extradition hearing.

[167] Canada's extradition arrangements in the Extradition Act itself make allowances for the form in which evidence supporting an extradition request may be submitted and, in many circumstances, even the substance of the evidence that may be considered.

[168] Evidence can be submitted by way of a ROC. The ROC can consist of a summary of the evidence that the requesting state expects to be presented at the trial. The "evidence" is not under oath or solemn affirmation, is not first-hand and is not subject to cross-examination. Provided that the ROC has been duly certified and provided that the evidence was not gathered in Canada, it may be admitted into evidence at the extradition hearing if its contents would not otherwise be admissible under Canadian Law.[^8]

[169] If, however, the evidence was gathered in Canada, it must satisfy the Rules of Evidence under Canadian law in order to be admitted. Section 32(2) of the Extradition Act provides:

"Evidence gathered in Canada must satisfy the Rules of Evidence under Canadian law in order to be admitted".[^9]

[170] The Court of Appeal for Ontario explained the underlying rationale of s.32(2) in United States of America v. McDowell as follows:

"…there is good reason for Canada to insist that evidence gathered in Canada conform substantively with our Rules of Evidence. Such a Rule does not place an onerous burden on the requesting partner. It does, however, preserve the integrity of our Justice system by affording fugitives the protection of our laws and values while they remain in Canada. In that way, the Act provides a front-line check on the methods used by both foreign and domestic law enforcement agencies to collect evidence in Canada. (emphasis added).[^10]

[171] This passage was later quoted with approval by the Supreme Court of Canada in United States of America v. Anekwu. In that case, the Court also examined more generally the two-step approach with respect to Canadian-gathered evidence under the Extradition Act, where the Court said:

"The evidence may first be presented to the extradition Judge as part of the record of the case, in the form required under s. 33. As such, it is presumptively admissible in summary form under s. 32(1). Section 32(2) then requires the Court to scrutinized Canadian-gathered evidence for compliance with Canadian law. It is therefore insufficient for the requesting State to certify that the Canadian-gathered evidence is available for the prosecution and would be admissible in its' own jurisdiction. If gathered in Canada, the evidence must also "satisfy the Rules of Evidence under Canadian law to be admitted." Canadian rules respecting the admissibility of evidence necessary include the Charter, as the Charter is the supreme law of the land. Consequently, s. 32(2) must also be read as contemplating the potential exclusion of otherwise admissible evidence under s. 24(2) of the Charter when it has been obtained in a matter that contravenes the Charter. In short, the Act requires that our extradition partners comply with Canadian law when gathering Canadian evidence in Canada." [^11] (emphasis added)

[172] The Applicant contends that the onus rests on the requesting State in the extradition proceeding to demonstrate that s.32(2) of the Extradition Act is satisfied in relation to any evidence gathered in Canada included in the ROC. Moreover, assuming for the sake of argument proof that the evidence was gathered pursuant to judicial authorization is sufficient to establish on a prima facie basis that the evidence was lawfully obtained, the Applicant is entitled to challenge the legal basis for the warrant. Accordingly, the Applicant bears the onus of demonstrating any Charter breach he alleges. Recall, however, the Respondent's concession that the Applicant's s. 10(b) Charter rights were indeed breached, if nothing more.

[173] A search will be reasonable under s.8 of the Charter if is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out was reasonable.[^12]

[174] On review of a Judicially authorized search warrant, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing Judge the Application should have been granted at all by the authorizing Judge.[^13]

[175] As Mr. Justice Sopinka said in R. v. Garofoli, the reviewing court must not review the authorization de novo[^14], a point courts have repeatedly affirmed since:[^15] "The reviewing Judge does not substitute his or her view of the authorizing Judge. If, based on the record which 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."[^16]

[176] In summary, on a review of the warrant, the question is not whether this Court would itself have issued the warrant, but whether there was sufficient, credible and reliable evidence to permit Justice of the Peace Hickling to find reasonable and probably grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: 1337 Crossfield Avenue. If these requirements are not met with respect to evidence gathered in Canada pursuant to the search warrant, the evidence may be inadmissible as part of the ROC by virtue of s.24(2) of the Charter and s. 32(2) of the Extradition Act.

Did the ITO disclose sufficient grounds for the issuance of the warrant?

[177] Section 487 of the Criminal Code provides, inter alia, that a Justice may issue a warrant to search a place upon being satisfied that there are reasonable grounds to believe that there is in that place "anything that there are reasonable grounds to believe will afford evidence with respect to the commission or an offence."[^17]

[178] The Applicant contends that the search was not authorized by law because there were no reasonable grounds under s.487 to obtain the warrant in the first place.

[179] The Respondent contends that applying the test to the ITO in this case, the search warrant is valid. Indeed, the ITO sets out overwhelming grounds for the affiant's belief that a search of 1337 Crossfield Avenue would reveal evidence relevant to the investigation of "BossHiaka's" possession and distribution of child pornography.

ANALYSIS

[180] DC Morgan commenced her investigation on September 9, 2010, when she learned, based on subscriber information obtained from Cogeco cable, that IP 81 was associated with Mike Cook at 150 Pine Street as of June 28, 2010.

[181] There was no evidence as to the nature of the information accessed from IP 81 on that date. That is to say, there was no evidence of child pornography being accessed from the IP address at the material place and time.

[182] The ITO states that in August, 2010, Mike Cook moved from 150 Pine Street to 1337 Crossfield Avenue.

[183] The ITO further states that IP 81 was registered to Mike Cook until September 8, 2010, when all internet services to 150 Pine Street were terminated.

[184] In the circumstances, by the time that DC Morgan commenced her investigation:

• Mike Cook had been residing at 1337 Crossfield Avenue since August, 2010;

• The Cogeco service associated with IP 81 was terminated the day prior to DC Morgan commencing her investigation;

• As of June 28, 2010, there was no evidence to show that child pornography was being accessed from IP81 at 150 Pine Street, or at any time thereafter; and

• There was no evidence to show that Mike Cook was the only individual residing at 150 Pine Street between the dates June 28, 2010 and August, 2010. Indeed, DC Morgan could not determine how many individuals were residing in the residence, nor could she determine whether there was a secure network at the residence between June 28, 2010 and September 8, 2010. In all of the circumstances, it was a leap in logic to conclude that "BossHiaka" was one of two individuals who moved from 150 Pine Street to 1337 Crossfield Avenue.

[185] DC Morgan had to proceed with the execution of the warrant in this case when her investigation was premature in terms of never having identified internet access associated with "BossHiaka" coming from an IP address at 1337 Crossfield Avenue. DC Morgan was working on a time line that was not of her own making. As a result, certain assumptions were made that in turn caused the Justice of the Peace to draw inferences that were incorrect.

[186] DC Morgan's statement in her Operation/Incident Plan (SMEAK) that "a person at 1337 Crossfield Avenue has been accessing pornography by the internet" was incorrect. That would have been "the best", as she was forced to concede in cross examination. However, that general tenor coloured her ITO.

[187] Moreover, where DC Morgan concluded in her Operation/Incident Plan "target(s) is unknown but is a resident of 1337 Crossfield Avenue.", that statement, too, was incorrect. In the same way, DC Morgan's mere suspicion coloured the ITO, suspicion that never rose to the level of reasonable and probable grounds.

[188] DC Morgan's more accurate thoughts on the matter were best articulated in her email message to Agent Brian Korzak, dated November 11, 2010, just eleven days prior to obtaining the warrant, where she said:

"…I just wanted to let you know that things are not yet confirmed for Monday. We have run into some snags here regarding the residence of the initial target house [150 Pine Street], moving more recently to a new address [1337 Crossfield Avenue]. I am waiting to hear from your counterparts in the U.S. to see if they can locate a more recent IP address for me. So far there has been no luck since the target has started using proxies…".

[189] Further, a message sent by DC Morgan to Neil J. O'Callaghan of the same date said:

"Hi Neil. I have spoken to Jim a couple of times today and he has been trying to find a recent valid IP address for our target, but no luck so far. I have noted two residents of the original location have moved into a new house together. I suspect that one of them is our guy, but I have nothing to confirm that as of yet. If I had a more recent IP address (after September 8, 2010 move date), then I think we would be good to go. Without that we will have problems confirming the address to search…"

[190] The fact is, DC Morgan was never able to confirm a more recent IP address for "BossHiaka" at 1337 Crossfield Avenue between November 11 - 22, 2010, or anywhere else for that matter.

[191] In the absence of "the best", DC Morgan began to assemble a circumstantial case in an attempt to link an individual from 150 Pine Street to 1337 Crossfield Avenue. One such attempt focused on internet service provided by Cogeco to 1337 Crossfield Avenue, registered in the name of "Datahostmax". As DC Morgan said in paragraph 155 of the ITO:

"BossHiaka has made efforts to conceal his identity and avoid being detected by the police. For this reason, I believe he may store a server and / computer equipment in the detached garage located on the property at 1337 Crossfield."

[192] In emails captured by the US authorities there was talk of the targets relocating their server away from North America. However, there was never any indication that the targets would locate their server in Canada. Paragraph 155 of the ITO seems to suggest that possibility. However, in cross examination, DC Morgan conceded that all indications were pointing away from Canada as being the likely site of a new server for "Dreamboard". Accordingly, this attempt to connect the two addresses fell short.

[193] In the same vein, DC Morgan attempted to link "BossHiaka" to St. Lawrence College as she learned that was where the Applicant was attending school in the Computer Network and Technology program, as she deposed in paragraph 146 of the ITO:

"Brandon Lane is currently attending St. Lawrence College where he is enrolled in the computer network and technology program. "BossHiaka" has discussed on line that he is currently attending school."

[194] In cross examination, DC Morgan conceded that this statement was not entirely correct. Attached to Exhibit #25, an email from Neil O'Callaghan to DC Morgan dated October 6, 2010, is a string of emails messages between "BossHiaka" and "Lofty". As Mr. O'Callaghan says in the last two sentences "towards the bottom of the PDF I have highlighted the communication between "Lofty" and "BossHiaka" where "Lofty" asks him about being in school. I thought you might find it of interest.

[195] Mr. O'Callaghan was quite right in characterizing the exchange of emails as "Lofty" asking "BossHiaka" about being in school. The trouble arises when the responses from "BossHiaka" to "Lofty" are elevated to confirm that "BossHiaka" was indeed attending school. Based on a close review of the Exhibit, at no time does "BossHiaka" discuss that he is currently attending school, which is of course the point of trying to establish circumstantially that "BossHiaka" and the Applicant are one and the same person. When "BossHiaka" was confronted with the fact that "BossHiaka" never discussed that he was currently attending school, DC Morgan replied "Not that I can recall right now. I did look through thousands of postings, so I am not sure". Again, this attempt to connect the two addresses fell short.

[196] The only information in the ITO that attempts to link the place to be searched with IP81 is that Mike Cook, with whom IP81 had once been associated, had moved from 150 Pine Street to 1337 Crossfield Avenue.

[197] Thereafter, there is no evidence in the ITO to substantiate that any of the IP addresses registered to a subscriber at 1337 Crossfield Avenue were associated in any way with postings by "BossHiaka".

[198] As DC Morgan deposed in paragraph 154 of the ITO:

"Based on my experience with persons who collect child pornography, I believe they usually keep their collections in a safe place, in the privacy of their own home. I therefore believe that the computer and other storage devices used to collect and maintain child pornography files, such as those previously mentioned, will be located at 1337 Crossfield Avenue, Kingston."

[199] In the above paragraph, DC Morgan fell into the trap of making assumptions about a certain type of offender. Put another way, she drew inferences based on the likely behavior of the accused. This sort of assumption relies on an unsubstantiated profile of a certain type of offender that does not rise to the level of reasonable grounds.[^18]

[200] As DC Morgan further deposed in paragraph 166 of the ITO:

"It is common practice for computer users to download files and save them to CD's and other storage devices for future access, safekeeping or easy portability. The person at 1337 Crossfield Avenue may have therefore copied evidentiary files to other devices for such purposes."

[201] The assumptions in paragraph 166 of the ITO are faulty for the very same reasons as paragraph 154 above.

[202] There was no reliable evidence that might reasonably be believed on the basis of which the authorization could have issued in respect of 1337 Crossfield Avenue as of November 22, 2010. Put simply, the trail went cold following the move of persons from 150 Pine Street. Accordingly, it was impossible for DC Morgan to conclude, as she did, that evidence of child pornography was transferred from 150 Pine Street to 1337 Crossfield Avenue.

[203] In summary, there was no evidence in the ITO capable of establishing grounds to believe evidence of the commission of an offence could be found at 1337 Crossfield Avenue. There was no evidence before the Justice upon which she could have determined that the warrant should be issued. The warrant was invalid as having been obtained in breach of S. 8. The Search, therefore, is assessed as a warrantless search and is presumed unreasonable.

b. Manner of the Search

[204] The Applicant contends that all of the occupants were handled with unnecessary force. The Applicant was questioned by police prior to being cautioned, given his right to counsel, or provided with an opportunity to exercise those rights. A foreign agent of the DHS was present during the search and took an active part. He was more than a passive observer. The police damaged the property in the process of executing the warrant. They also left the Applicant's room and belongings in a state of complete disarray. The Applicant contends, therefore, that the onus rests on the Respondent to justify the conduct of the police. To that end, the Applicant points to the Supreme Court of Canada's decision in Genest v. the Queen, where the Court said:

"The greater the departure from the standard of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search. The evidence to justify such behaviour must be apparent in the record and must have been available to the police at the time they chose their course of conduct. The Respondent cannot rely on ex post facto justifications".[^19]

[205] The Respondent contends that the manner of the search was reasonable and as the Supreme Court of Canada emphasized in Cornell, Courts must be cautious not to unfairly use the lens of hindsight to measure decisions by police in difficult and fluid circumstances, specifically:

"First, the decision by the police must be judged by what was or what should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Respondent cannot rely on after-the-fact justifications of the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time.[^20] Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed through the lens of hindsight: Cramton v. Walton, 2005 ABCA 81, 40 A. L.T.A., L.R. (4TH) 28 at para. 45.

Second, the police must be allowed a certain amount of latitude in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. R.v. Asante – Mensah, 2003 SCC 38, 2003 S.C.C. 38 [2003] 2 SCCR 3 at para. 73; Crampton, para. 45. It is often said of security measures that, if something happens, the measures were inadequate, but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when they are applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing Court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback"[^21]

ANALYSIS

What did the Police know in advance of entering the home?

[206] No surveillance was conducted at 1337 Crossfield Avenue in advance of obtaining the warrant, save for 30 minutes just prior to the warrant being executed. The failure to conduct surveillance was contrary to the direction provided by the lead investigative agency, the U.S. DHS.

[207] Had surveillance been conducted in advance of obtaining the warrant, it may have informed DC Morgan regarding the number of occupants, their gender, and any patterns of behavior such as, for example, when they were generally up, around and potentially using their computers.

[208] At very least, in the absence of surveillance, DC Morgan was aware of the following facts related to this being a low risk situation:

(a) Neither the Applicant nor Cook had any weapons registered to them, nor did they have criminal records;

(b) There was no information to suggest the presence of a dog or dogs at the residence; and

(c) It was determined, therefore, that the potential for weapons or violence was low.

[209] By the time that Sergeant Bracken prepared his Operations/Incident Plan (SMEAC), he, too, was aware of the following information:

"…It is believed that they [Michael Cook and Brandon Lane] may be students. At this time, there is no information of any weapons in the residence or that these subjects are in any way violent. The two males believed to be living there have no record, or any reports through special services. As well, there are no weapons registered to these people or the residence."

What did the Police know just prior to executing the warrant?

[210] DC's Thompson and Legare detected no lights in the windows prior to the ERU team members arriving and picking the lock on the front door.

[211] Once inside the home, the only light on was in the kitchen. Otherwise, the residence was in total darkness. Further, there were no sounds to indicate that anyone was up. Rather, it was reasonable to conclude that the occupants were in bed asleep. Clearly the police drew that inference in light of the fact that they moved immediately towards the bedrooms.

[212] The ERU team members moved by stealth means to a point on the second floor within feet of the occupant's bedroom doors, which were all unlocked. Further, the door to the room shared by Ms. Armstrong and Mr. Cook was not closed all of the way over.

[213] In all of the circumstances, the ERU team members had accomplished their objective of gaining entry by surreptitious means and moving "stealth to contact". Immediately thereafter, for reasons that were never adequately explained, Constable LeBlanc deployed an incendiary device, a flash grenade, a.k.a. a distraction device, within feet of the bedroom doors, in a carpeted area.

[214] Had the ERU team members, approximately 11 in total, simply opened the bedroom doors and walked into each of the rooms, it is more likely than not that the occupants, including the Applicant, could have been secured without incident. Moreover, it is more likely than not that none of the evidence specified in the warrant would have been compromised.

[215] Rather, in the circumstances that developed, the police:

(a) Set fire to the carpet and the Applicant's bedroom door, which caused smoke damage throughout the second floor. The fire and resulting smoke were serious enough to warrant the attendance of the fire department;

(b) Walls were cracked by the grenades' concussion;

(c) A hole was blown through the Applicant's door;

(d) Debris from the door was blown the width of the Applicant's room;

(e) Doors throughout the home, that were admittedly unlocked, were damaged when they were kicked in;

(f) A vanity mirror was cracked in two by the grenades' concussion;

(g) Lights in the ensuite bathroom were blown out; and

(h) An unlocked garage door was damaged when it, too, was kicked in;

In summary, much, if not all, of the damage to the home was unnecessary and gratuitous.

Unnecessary force and handling of the occupants

The Applicant

[216] The Applicant was subjected to the same rough and unnecessary handling as the other occupants.

[217] The Applicant was questioned by the police prior to being cautioned, given his right to counsel, or provided with an opportunity to exercise those rights.

[218] In the circumstances as described, the Applicant was persistently asked by Constable Frawley to turn over his password. Notably, the Applicant was surrounded by as many as 5 or 6 police officers when this took place. Moreover, the statements made to the Applicant by Agent Korzack, as testified to by Constable Frawley, were meant to intimidate the Applicant.

Alison Armstrong

[219] Ms. Armstrong awoke to flashlights shining in her face, people screaming and loud banging. She smelled smoke and feared that the house was on fire.

[220] She believed that they were being robbed and that they were about to be murdered. Her belief was reasonable and well founded.

[221] Contemporaneous with these events, Ms. Armstrong was violently pulled out of her bed by her right arm and thrown to the floor where she was placed face down.

[222] When she asked if the house was on fire, she was told to "shut up".

[223] Due to her loose fitting sleep wear and the violent nature of being pulled from her bed, her breasts were exposed when she was thrown onto the floor and handcuffed.

[224] She had finger imprint bruises on her right arm for several weeks after. Moreover, her legs hurt as a result of being thrown to the floor. She developed a rug burn and a large bruise on her leg.

[225] She was handcuffed behind her back, left on the floor and told not to move or talk. She was not allowed to put clothes on to cover herself. She resulted to using her teeth in attempt to pull her shoulder strap up to cover her exposed breast.

[226] It was only when the lights were turned on that she realized she was in the presence of police officers. Further, it was not until DC Morgan entered the room with a copy of the warrant that the male officers were ordered to remove Ms. Armstrong's handcuffs so that she could cover herself.

[227] She was escorted downstairs in handcuffs to be questioned by DC Morgan. At no time during the entire ordeal was she advised as to the reason for her detention, nor was she ever advised of her right to counsel.

[228] When she asked to use the washroom, she was escorted to the main floor while still in handcuffs. She was allowed to use the washroom, but only with the door partially opened and while being guarded by a male police officer.

[229] She was eventually placed in the living room on the couch with Mr. Cook and Mr. Carrigan, where they were left for approximately two hours. Once their handcuffs were removed, she still did not feel that they were at liberty to move around the house.

[230] They were not allowed to eat or drink, while at the same time police officers brought coffee to each other and ordered pizza delivered to the house. To rub salt in the wound, so to speak, they were asked to answer the door when the pizza delivery person arrived.

Mike Cook

[231] In the same circumstances described by Ms. Armstrong, Mr. Cook was pulled from the bed while wearing only his under shorts.

[232] He was handcuffed behind his back and placed on the floor.

[233] He suffered injuries to his left arm and shoulder, as depicted in Exhibits #7, #8 and #10. Further, he sustained a rug burn to his knee, as depicted in Exhibit #9.

[234] When he and Ms. Armstrong asked that the bedroom window be closed as they were cold, being exposed as they were, they were told "no".

[235] He was escorted downstairs while still in handcuffs to be questioned by DC Morgan. At no time throughout the entire ordeal was he advised of the reason for his detention, nor was he advised of his right to counsel.

[236] Like Ms. Armstrong, Mr. Cook and Mr. Carrigan suffered the further indignity of being confined to the living room for approximately two hours while police officers searched the home, drank coffee and ordered in pizza.

Damage to the Residence

[237] Ms. Lane inspected the home on July 30, 2010, along with the junior property manager for the landlord. She noted nothing more than normal wear and tear throughout the residence.

[238] The damage that she found on November 28, 2010, is documented in the photographs appended as Exhibits "B" through "M" to her affidavit, sworn October 30, 2011 and as articulated in her evidence set out above.

[239] In the circumstances of the police having gained entry by surreptitious means and making their way to within mere feet of the occupants' unlocked bedroom doors, there was no reasonable, rational basis for the decision to shift to a dynamic entry. Deployment of the distraction devices, both inside and outside the home, was unnecessary. There was no indication that the occupants were awake. Again, query why the need to distract those who were asleep? A fire was caused by the distraction device, which two police witnesses admitted are risky, dangerous devices. Indeed, flash grenades are incendiary devices. The fire was serious enough to warrant the fire department's attendance.

[240] The damage to the residence that was left in the wake of the dynamic entry and resulting search was unnecessary and gratuitous. Unlocked and open doors were kicked in. Closets and drawers were emptied of their contents and left piled and strewn about the residence. To that end, the evidence from DC Veltman that "My job is to search under the warrant, not to tidy the house" was particularly troubling. Recall that it was also DC Veltman's evidence that the bedrooms had some clutter on the floor, but that were not dirty. DC Legare was to have taken overall photographs prior to the search in accordance with the Operations/Incident Plan, but failed to do so. Moreover, DC Legare was to photograph any damage done to the residence following the search in accordance with the Operations/Incident Plan, but failed to do so. In the circumstances, the Court is left to consider only the uncontradicted evidence proffered by the Applicant with respect to the damage done.

[241] The scene as described was exacerbated by the presence of police officers fetching coffee for one and other and ordering in pizza, while the occupants remained "prisoners", to borrow Sergeant Bracken's characterization of them, within the confines of their own home. Finally, the parting image of the police leaving the home after a search that lasted approximately five hours is this: Fire damage, smoke damage, cracks in the walls caused by the concussion of the flash grenade, broken doors, moved and overturned furniture, personal belongings strewn about, black rubber gloves thrown on the floor throughout the house along with empty Tim Horton's coffee cups. The apology from the one officer who acknowledged the mess that the residence was left in must have sounded hollow indeed.

[242] There were no exigent circumstances that required the police to enter the home and execute the warrant in the manner that they did. The warrant was obtained on the 22nd of November and executed on November 26, 2010. Having gained entry to the home by surreptitious means, the decision to shift to a dynamic entry was not justified. Moreover, the use of the distraction device, which was never mentioned in the ITO, was, to speak plainly, irrational. The plan as it unfolded was incoherent in its execution.

[243] The occupants all suffered great indignity, the treatment of Ms. Armstrong being the most egregious example. The cumulative effect of the Charter breaches in this case is of great concern. Every indication was that the occupants, including the Applicant, were compliant. There was no indication that any evidence was at risk of being destroyed. The police had reason to believe that this was a low risk take down. That said, it is difficult to imagine a search that could have had a greater negative impact on a group of citizens. The entire experience must have been terrifying for everyone, especially Ms. Armstrong.

[244] All of the occupants, including the Applicant, were detained by physical restraints. Indeed, Sergeant Bracken referred to them as "prisoners". Again, there were no exigent circumstances to warrant their detention. Once matters were brought under control, which was within seconds or minutes at the most, the principle of investigative detention would have been brief, had there ever been sufficient reasonable suspicions to engage it. There was no evidence that Ms. Armstrong was ever under suspicion. Mr. Cook was cleared of any suspicion when he was unable to answer certain questions that he was asked regarding encryption. Thereafter, DC Morgan went immediately upstairs and arrested the Applicant, having never interviewed Mr. Carrigan. Recall her evidence at that point: "I thought that it might be Brandon Lane, but I really wasn't sure". To exacerbate matters, once the physical restraints were removed, Ms. Armstrong, Mr. Cook and Mr. Carrigan were effectively and psychologically detained when they were confined in the living room for approximately 2 hours.

[245] In all of circumstances of the warrant failing, the police lacked the requisite grounds to detain the occupants, including the Applicant. Their detention was arbitrary. In the alternative, even in circumstances where detention may have been justified for investigative purposes, it was certainly not brief and it was not based on reasonable suspicion.[^22]

[246] There was no evidence to justify the behaviour of the police that was apparent in the record, at the time they chose their course of conduct. Indeed, the evidence, as articulated above, was very much to the contrary.

[247] In the circumstances, the course of conduct resulted in the breach of the Applicant's ss. 8 and 9 Charter rights, in addition to his s.10(b) rights as conceded by the Respondent. Further, the manner of the search resulted in the breach of Ms. Armstrong's, Mr. Cook's and Mr. Carrigan's s.8, s.9, 10(a) and 10(b) Charter rights.[^23]

c. Should the evidence be excluded pursuant to s.24(2) of the Charter?

[248] The Applicant contends that after applying the analytical framework articulated by the Supreme Court of Canada in R. v. Grant, that the Charter infringing State conduct was serious and admission of the evidence may send the message that the justice system condones serious state misconduct; and the breach had a significant impact on the Applicant's Charter protected interest and admission of the evidence may send the message that individual rights count for little. While Society has an interest in the adjudication of the case on its merits, it is not sufficient to warrant admission of the evidence.[^24]

[249] The Applicant further contends that of further significance is whether there were exigent circumstances which mitigated the seriousness of the Charter infringing conduct. The Applicant asserts that there was no urgency or necessity that could justify the police proceeding as they did. Given that they had successfully entered the house undetected, to the point of arriving at the top of the staircase leading to the bedrooms, there was no justification for the use of the flash grenade, or the "hard entry" tactics employed by the police. There was no evidence that anyone was in a position to destroy evidence. On the contrary, it would have been apparent to the police that everyone was asleep. Once roused, everyone could easily have been taken under control. The force actually used was unnecessary. Moreover, the state in which the house was left demonstrates disrespect for personal property that the Court ought not be seen to condone.

[250] The Applicant further contends that the search had a significant impact on his Charter protected interest. To that end, as the Supreme Court of Canada noted in Grant "an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not."[^25]

[251] The law is clear that among the highest expectations of privacy is with respect to one's home and its contents. In addition, if, as the Applicant contends, the police could not legally have searched the Applicant's home because they lacked the necessary grounds, this renders the search more intrusive of the Applicant's reasonable expectation of privacy.

[252] Finally, the Applicant contends that the exclusion of evidence obtained in the search of 1337 Crossfield Avenue may or may not prove fatal to this extradition request. However, even if the evidence is essential to this extradition request, the charges against the applicant in the United States will remain extant, irrespective of any Order this Court may make, excluding the evidence under s. 24 (2) or, ultimately, discharging the Applicant under s. 29(3) of the Extradition Act. As the Applicant asserts, short of an abuse of process, there is nothing to prevent the U.S. from seeking the Applicant's extradition again, this time, on the basis of admissible evidence.[^26]

[253] The Canadian charges against the Applicant would remain extant as well. Accordingly, as the Applicant asserts, the truth seeking goal of the criminal trial can weigh in favour of the admission of reliable evidence, although the Supreme Court of Canada has stressed that "no one consideration should be permitted to trump other considerations." Even if this factor could favour the admission of evidence in a Canadian Criminal Trial, it is significantly attenuated in the extradition context. Having regard to all of the circumstances, the Applicant contends that vindication of his Charter rights through exclusion of the evidence in his extradition hearing does not exact too great a toll.[^27]

[254] The Respondent contends that the exclusion of the evidence identifying "Bosshiaka" as Brandon Lane would bring the administration of justice into disrepute. The Respondent asserts that the revised test under s.24(2) of the Charter was set out by the Supreme Court of Canada in R.v. Grant and has recently been affirmed by the Court in R. v. Côté. In Grant, the Court stressed that the determination on whether the admission of evidence would bring the administration of justice into disrepute requires a long-term approach. When faced with an Application to exclude evidence, 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 of the Charter-protected interests of the person;

• society's interest in the adjudication of the case on its merits.[^28]

[255] The Respondent concedes that State conduct that is "severe or deliberate"[^29] or that demonstrates a "willful or flagrant disregard of the Charter"[^30] will tend to support exclusion of the evidence. A Charter breach will be least serious when the violation was inadvertent or minor."[^31]

[256] The Respondent asserts that in entering 1337 Crossfield Avenue, the police were acting on a valid Court Order. Alternatively, if this Court finds a defect in the warrant, there is presently no evidence that it results from severe, deliberate or flagrant disregard to the Charter. To that end, the Affiant in this case provided a careful and thorough account of her investigation linking "BossHiaka's'" internet activity to 1337 Crossfield and a process by which she formulated her grounds to believe that evidence would be find at that address.

[257] Moreover, the Supreme Court in Grant specifically acknowledged that extenuating circumstances such as those found in this case – "the need to prevent the disappearance of evidence" attenuates the seriousness of any breach.[^32]

[258] The Respondent further contends that the second avenue of inquiry under Grant "…calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive".[^33] In R. v. Nugent, our Court of Appeal stated that, in assessing the seriousness of a breach, Judges must go beyond "the general, albeit valid observations of the nature of the breach" to consider "the actual extent to which an unconstitutional search have infringed one's privacy rights".[^34]

[259] Finally, the Respondent contends that the evidence identifying Brandon Lane as "BossHiaka" is central to the success of his committal for extradition: the evidence is powerful, reliable and necessary. As the Supreme Court stated in Grant; "the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of Justice where the remedy effectively guts the prosecution".[^35]

ANALYSIS

[260] No matter how one looks at this, there is serious state conduct impacting on serious Charter rights. Even setting aside the cumulative effect of the breaches pertaining to the other occupants, the image of the Applicant surrounded by 5 or 6 police officers, arrested and in handcuffs, while being demanded to turn over his computer password, and never having been given an opportunity to exercise his right to call counsel, is in itself a flagrant breach warranting the exclusion of the evidence. Moreover, the unauthorized presence of the U.S. investigator, intimidating the Applicant in the manner that he did, served to exacerbate the seriousness of the multiple breaches.

[261] I am of the view that all of the evidence contained in the ROC arising out of the warrant and the execution of the warrant was obtained in a manner that infringed the Charter. That is to say, there is no issue of the gathering of evidence being too remote from the violations so as to militate in favour of admitting the impugned evidence.[^36]

[262] Rather, this was a single transaction in which multiple breaches occurred. Accordingly, all of the evidence gathered at the residence, real evidence, admissions made by the Applicant and the statements provided by his roommates, were obtained in a manner that infringed the Charter.

[263] Further, I agreed with the Applicant's contention that there was an element of over-seizure on behalf of DC Veltman, who agreed in cross examination that every item was seized pursuant to the warrant. Appendix "A" to the warrant sets out the items to be searched for. Nowhere are children's underwear or swimsuits mentioned. However, those items were seized from the Applicant's room. DC Veltman never adverted to some other authority to seize the items, for example the plain view doctrine. Indeed, when pressed on the point, he was adamant that all evidence was seized pursuant to the warrant. Recall also that the search took place over a period of approximately 5 hours, which would have provided ample time for the investigators to obtain additional authorization to seize the garments. This is yet a further example of the all too casual attitude regarding the occupants' Charter rights that seemed to permeate the entire search.

ORDER

[264] An order shall issue excluding from the evidence in the Applicant's extradition hearing all evidence seized in the execution of the search warrant at 1337 Crossfield Avenue, Kingston, Ontario, on November 26, 2010, including, but not necessarily limited to, the evidence contained in paragraph 31 through 37 of the ROC.

September 26, 2012 ______________________________

Abrams, J.

[^1]: A second supplemental Record of the Case (SSROC) was subsequently filed under cover dated September 13, 2012. The information contained therein does not, however, form part of the evidence in respect of this Application.

[^2]: Reference Exhibit #5

[^3]: Reference Exhibit #5

[^4]: Reference Exhibit #5

[^5]: ROC, dated January 17, 2011, para. 5

[^6]: ROC Supra, para. 23

[^7]: Defined as patrols past the residence as opposed to dedicated surveillance.

[^8]: Extradition Act s. 33(3), and s. 32(1)

[^9]: Extradition Act s. 32(2)

[^10]: United States of America v. McDowell (2004), 183 C.C.C.(3d)149(Ont.C.A.) at para 22

[^11]: United States of America v. Anekwu (2009), 2009 SCC 41, 247 C.C.C. (3d) 99(S.C.C.) at paras 29 and 21 **** need to check

[^12]: R. v. Collins, [1987] 1 S.C.R. 265

[^13]: R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449, [2000] 2 S.C.R. 992 at para. 54

[^14]: R. v. Garafoli (1990), 60 C.C.C. (3d) 161 at 187 [2 SCR 1421]

[^15]: See R. v. Pires, [2005] 3 S.C.R. 344 at paras 8 and 30: See also R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253 at para 40; Araujo, Supra at paras 51 and 54

[^16]: Garafoli, Supra at 188

[^17]: Criminal Code s. 487

[^18]: See R. v. Morelli (2010), 2010 SCC 8, 252 C.C.C. (3d) 273 (S.C.C.), at paras 69-91

[^19]: Genest v. The Queen (1989), 45 C.C.C. (3d) 385 (S.C.C.) at 408

[^20]: R. v. DeWolfe, 2007 NSCA, 256 N.S.R. (2nd) 221 at para. 46

[^21]: Cornell, supra at paras. 23 and 24

[^22]: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) at paras. 54 and 55

[^23]: R. v. Genest, supra, at 408, R. v. Thompson, 2010 ONSC 2862, [2010] O.J. No. 2070 (S.C.J.) at paras. 59-68, 72-75, R. v. Cornell (2010), 2010 SCC 31, 258 C.C.C. (3d) 429 (S.C.C.), at paras. 18-20, Strachan v. The Queen (1988), 46 C.C.C. (3d) 479 (S.C.C.) at paras. 493-494, 498-499, R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.) at paras. 375-381

[^24]: R. v. Grant 2009 SCC 32, [2009] 245 C.C.C. (3d) 1 S.C.C. at para. 71, R. v. Côté, 2011 SCC 46, 2011 S.C.C. 46 as paras. 47 - 48

[^25]: R. v. Grant, supra, at para. 78

[^26]: Extradition Act, s. 4

[^27]: United States of America v. Anekwu, supra, at para. 29, and R. v. Côté, supra at para. 48

[^28]: R. v. Grant, supra, at para. 71

[^29]: R. v. Grant, supra, at para. 72

[^30]: R. v. Grant, supra, at para. 75

[^31]: R. v. Grant, supra, at para. 74

[^32]: R. v. Grant, supra, at para. 75

[^33]: R. v. Grant, supra, at para. 76

[^34]: R. v. Nugent (2005), 193 CCC (3d) 191 at para. 16 (Ont. C.A.)

[^35]: R. v. Grant, supra, at para. 83

[^36]: Strachan v. The Queen, supra, at 498 and 499