Her Majesty the Queen v. Michael Thomas Christopher Stephen Rafferty, 2012 ONSC 703

COURT FILE NO.: 10856

DATE: 2012-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MICHAEL THOMAS CHRISTOPHER STEPHEN RAFFERTY

Applicant

Randy Schwartz, for the Crown

Dirk Derstine, for the Applicant

HEARD: January 17, 18, 19, 20 & 23, 2012

Re: Application D-4 (s. 8 and s. 24(2) of the Charter)

HEENEY J.:

[1] This is an application by the accused Michael Rafferty (“the Applicant”), in which he alleges a breach of his right to be secure against unreasonable search and seizure, as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. He seeks the exclusion, pursuant to s. 24(2) of the Charter, of certain evidence obtained pursuant to several search warrants.

[2] Among other things, the application raises the emerging and perplexing issue as to the proper ambit of the powers of the state when they seize and search computers, hard drives and smart phones that function like mini-computers.

The Facts:

[3] On April 8, 2009, eight year old Victoria (“Tori”) Stafford was abducted on her way home from school in Woodstock, Ontario. What began as a missing person report quickly transformed into an abduction case that received national attention. Massive ground search efforts were mobilized, with the aid of volunteers and other police forces. Oxford County Police Services (“OCPS”) requested assistance from the OPP, and they tasked Inspector Renton to lead the joint investigation on April 15. Given the size of the operation, it was managed under the Major Case Management protocol. Insp. Renton testified that, at times, there were as many as 75 detectives working on the case, and as many as 900 police officers participated at one point or another. Over 5,000 tips were received, which had to be followed up, resulting in over 5,700 “actions” by police officers delegated to perform a specific task. Over 8,000 homes were canvassed, and over 100,000 pages of reports were generated. The flow of all investigative information was organized through the Powercase electronic management system.

[4] One cog in this enormous police operation was the search warrant team, led by OPP Det. Sgt. Gast. Their job was to apply for whatever search warrants or production orders that were deemed necessary by the management team. This required them to keep abreast of all developments in the case, since current, reliable and relevant information would have to be provided to the issuing Justice of the Peace for every Information To Obtain (“ITO”) that was filed in support of each application for a search warrant.

[5] Up until May 19, 2009, the primary focus of the investigation had been on members of the child’s family, and other close associates. On that date, however, the investigation took a dramatic turn. Terri-Lynne McClintic gave a polygraph statement in which she confessed to having taken part in the abduction and subsequent murder of Tori, and directly implicated the Applicant in the crime.

[6] In brief, the information obtained from McClintic was that the Applicant pulled up to her house in the early afternoon of April 8, 2009, in his 2003 Honda Civic. Shortly after she got in the car, he told her that he wanted her to “snatch a little girl” for him. She agreed to help, and the Applicant dropped her off near a public school. She waited outside the school, wearing a puffy white jacket and black pants, and ultimately approached Tori as she walked alone along the street. McClintic had a conversation with Tori about dogs and induced her to look into the back seat of the Civic, whereupon she was pushed inside and the door was shut.

[7] They drove to Guelph, with Tori crouched in the back seat. Along the way the Applicant told McClintic “you know we just can’t drop her off now”. When they arrived at Guelph, the Applicant made a stop to pick up some illicit drugs, either Oxycontin or Percocet. They also stopped at an Esso station near the Home Depot in Guelph, where the Applicant took money out of his bank account. When he returned, he handed McClintic some cash and asked her to go to the Home Depot to purchase garbage bags. From information subsequently obtained from the Home Depot, she also purchased a Wavex claw hammer, although that detail was omitted from her May 19 statement.

[8] They then drove to a remote location. McClintic told police that she knew the Applicant had a hammer with him in his gym bag, and acknowledged that she knew he needed the garbage bags for “something”. After they stopped “in the middle of nowhere”, McClintic began walking away from the car because she did not want to watch the Applicant assault the child. The Applicant proceeded to violently rape Tori, first in the front seat of his car and then in the back seat, as she was screaming in pain.

[9] The Applicant called for McClintic to come back to the car, and she saw that his genitals were covered in blood. He grabbed her white coat to wipe the child’s blood off of his body. There was blood on the back seat of the car. She told police that the child was nowhere to be seen.

[10] The Applicant had brought a Good Life Fitness gym bag in the trunk of his car with clothes for both of them to change into. He put McClintic’s white coat in the gym bag after using it to wipe himself. On the way back from Guelph, they both took off the clothes they had been wearing and put them into a bag. She told police that she thought the Applicant dumped the bag in a dumpster on the way back from Guelph.

The Search Warrants:

[11] Following the briefing in which the details of McClintic’s confession were disclosed, Insp. Renton gave immediate orders for the arrest of the Applicant. Not long after, the Applicant was located and arrested. He was in the process of moving two grocery bags from his Honda Civic into a vehicle owned by Joy Woods. Insp. Bickerton, a member of the management team, directed that both vehicles be seized to preserve evidence and that search warrants be applied for to search both vehicles. Orders were also issued to apply for search warrants relating to the residence of the Applicant and his mother at 70 Tennyson Ave., Woodstock, and the residence of McClintic and her mother at 74 Wilson St., Woodstock.

[12] The search warrant team dropped what they were doing and began working on this new assignment. The affiant for the ITO was to be Det. Const. Gingras. Although she was the least experienced member of the team, she had been chosen as the affiant for this and most of the prior judicial authorizations, primarily because she was a member of OCPS. The OPP believed that their involvement in the case would be temporary only, and for the sake of continuity the decision was made to use an affiant from the local police force, who would be available for the duration of the investigation.

[13] The search warrant team had been working 15 hour days to that point in the investigation, but things were about to get worse. Det. Const. Gingras testified that they were briefed on McClintic’s confession at 8:51 p.m. on May 19. She immediately began working on an ITO for issuance of the four search warrants, with the assistance of the rest of the team. She worked through the night until 6 a.m. on May 20, took 2 ½ hrs off, and returned to work at 8:30 a.m.. She worked continuously throughout the day and night of May 20, until 3 a.m. on May 21. After a short rest, she returned at 7:45 a.m. on May 21 to complete the ITO. At 12:45 p.m., she and Det. Sgt. Gast met with Justice of the Peace McMahon to provide him with the documentation.

[14] She explained in her testimony that it was considered urgent to get the ITO completed and the search warrants in place as soon as possible. This was partly out of a concern to avoid the degradation of evidence (particularly the body of the victim), but also because the two residences had been secured pending the issuance of the warrants, and the people residing there had been asked to leave. The team felt that it was important to issue and execute the warrants as soon as possible, so that the residents could return to their homes.

[15] While the search warrant team was putting the ITO together from the large amount of information already at hand, new information continued to flow in. This came from various detectives who were now following up leads on McClintic and the Applicant, who had not previously been persons of interest. Information also continued to flow from McClintic, who was touring the countryside with detectives in a search for the body of Tori Stafford, and who was providing additional details as they went along.

[16] At 2:38 p.m. on May 21, Det. Sgt. Gast received a call from J. P. McMahon, enquiring about the fact that one of the vehicles had been named as the place to be searched, whereas the other had been named as the object to be searched. Det. Sgt. Gast explained the reason for having proceeded in this manner. More will be said about this below, because this represents one of the issues on this application. Det. Sgt. Gast confirmed that this was what they intended, and J. P. McMahon continued with his review of the ITO. He called again at the end of the day to advise that he needed more time, and would call the following morning.

[17] Det. Sgt. Gast and Det. Const. Gingras met with J. P. McMahon at 9:30 a.m. on May 22, 2009, and received the four signed search warrants. They authorized the search of four locations: the residence of the Applicant and his mother, Deborah Murphy, including Ms. Murphy’s van; the residence of Ms. McClinitic; Joy Woods’ car; and Bay #4 at the OPP Forensic Identification Services Office in Tillsonburg, in which would be found the Applicant’s 2003 Honda Civic. Each warrant specified that they were to be executed between 9:30 a.m. and 6:00 p.m.. Search teams were dispatched to execute each search warrant that same day, within the specified time frame.

[18] That concludes my recitation of the basic facts. I now move to consider the various issues raised in this application, wherein the Applicant alleges that his rights under s. 8 of the Charter have been infringed.

Issue #1: No Execution Date on the Search Warrants

[19] In his factum, Mr. Derstine, for the Applicant, attacks the facial validity of all of the warrants, on the basis that they did not specify a date or a date range within which they were to be executed. In his oral submissions, he made a concession of sorts, and acknowledged that the authorities supported the conclusion that the absence of a date for execution was not a fatal blow to the warrants.

[20] All four search warrants were in Form 5, as permitted by s. 487(3) of the Criminal Code. All four warrants were signed by the issuing justice on May 22, 2009, and they bear that date at the bottom, just above his signature. In the space that immediately follows the words “between the hours of”, the issuing justice has written “9:30 am – 6:00 pm”.

[21] As already noted, the evidence is clear that all four warrants were executed on May 22, 2009, within the time frame specified.

[22] In his factum, Mr. Derstine submits that the warrants do not contain an execution date, and therefore could theoretically be executed by the police years after they were issued, when the requisite grounds would no longer be in existence.

[23] I do not agree that the warrants contain no execution date. They were signed on May 22, 2009 and, since no other date is specified, it is implicit in the warrants that they are to be executed on the date that they were signed: see R. v. DeJesus, unreported decision of Ewaschuk J. (Ont. S.C.J.) dated Dec. 5, 2005 (Toronto Court File #C46292). See also R. v. McCarthy, [1995] O.J. No. 2006 (C.A.), R. v. Penner, [1984] B.C.J. No. 1069 (Co. Ct.) at para. 15, and R. v. Cole, [2006] O.J. No. 1402 (S.C.J.); contra R. v. L.S.U., [1999] B.C.J. No. 2305 (S.C.).

[24] On its face, each warrant authorized the police, on May 22, 2009, to enter specified places within a specified time frame and seize specified things. They did precisely that. There is no need for the warrants to have repeated that same date in the space above where the time frame is to be specified. Indeed, the prescribed form makes no provision for such a date to be inserted, but only provides for the insertion of the hours between which the warrant is to be executed. If it is intended that a warrant would be executed on some date other than the date it is signed, then obviously that date or date range must be specified, but in the present circumstances it would be redundant to do so.

[25] I find no merit to the Applicant’s submissions on this issue.

Issue #2: The Searches Were Not Completed Within the Time Frame Specified

[26] In another issue raised in his factum but not pursued in argument, the Applicant submits that the police exceeded their authority under the warrant because they did not complete the search of the Applicant’s residence by 6 p.m. on May 22, 2009.

[27] The ITO clearly indicated to the issuing justice that the search of the house could take days or even weeks to complete. In fact, the search took from the afternoon of May 22 until May 26, when the keys were handed back to the Applicant’s mother.

[28] The law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: R. v. Woodall, [1991] O.J. No. 3565 (Gen. Div.), aff’d [1993] O. J. No. 4001 (C.A.).

Issue #3: Too Much Information

[29] In his factum the Applicant takes the position that the ITO was poorly drafted, was far too lengthy, contained irrelevant information and was confusing. Once again, Mr. Derstine did not press this point in argument, and agreed with the Crown that it was not specifically a constitutional breach to have an obscure or opaque document.

[30] The Applicant relies on Re Criminal Code, [1997] O.J. No. 4393 (Gen. Div.) at paras. 9 to 11, where Hill J. refused to issue an ex parte order to intercept private communications because the ITO was so lengthy, disorganized and poorly drafted that, after reading and rereading the document for many hours, he was unable to satisfy himself that the statutory criteria for issuing the order had been satisfied.

[31] The distinction with that case and the one before me is that Hill J. was the issuing justice, whereas I am the reviewing justice. It was quite in order for Hill J. to conclude that the quality of the draftsmanship in the ITO that was before him was so poor that it failed to demonstrate to him the requisite grounds to issue the order sought. However, there is no basis upon which I can conclude J. P. MacMahon was similarly troubled.

[32] Indeed, I am led to conclude quite the contrary. Despite the fact that the main body of the document, Apppendix D, is 225 pages in length, followed by Appendix E that is about 82 additional pages, it is clear that each and every page of the document was read by the issuing justice. His initials appear on every page, which I infer represents his own means of confirming that he has read every page. He took the time that he needed to complete his review of the ITO, and did not sign the warrants until the next morning. Since he did, in fact, sign the warrants as requested, I must conclude that he was satisfied that the document did contain the requisite grounds to support issuance of the warrants.

[33] Nor do I find the ITO to be confusing or disorganized. The information is organized under many subtitles which serve to group the information that is relevant to that particular topic. The document is, without doubt, very long, and contains an exhaustive description of the progress of the investigation to date, including information about other persons of interest and many witness statements. While much of this information cannot be said to be directly relevant to the grounds for issuing the warrants, I accept the evidence of Det. Const. Gingras that a fulsome description of the information obtained by the police to date was included in an effort to be full, frank and fair.

[34] The ultimate question is not whether the ITO was long or poorly drafted, but rather whether it does, in fact, contain within it sufficient grounds upon which the search warrants could be issued. I am satisfied that it does.

Issue #4: The Search of Joy Woods’ Car and Deborah Murphy’s Van

[35] In his factum, the Applicant argues that the ITO discloses no reasonable and probable grounds to believe that relevant evidence can be found in Joy Woods’ car (into which the Applicant transferred from his own car two grocery bags containing unknown contents immediately before his arrest) nor in Deborah Murphy’s van.

[36] While Mr. Derstine concedes that his client has no reasonable expectation of privacy in those two vehicles, and therefore lacks standing to claim a Charter breach with respect to those searches, he nevertheless seeks to rely on those searches as demonstrating a pattern of police behaviour that can be taken into account when the court addresses s. 24(2) with regard to those s. 8 breaches where he does have standing.

[37] The problem with that approach is that the Applicant’s lack of standing precludes any inquiry into whether the police did or did not act properly with respect to those two searches. In R. v. Edwards, [1976] 1 S.C.R. 128 at paras. 33-36, Cory J. made it clear that the accused must first establish that he has a reasonable expectation of privacy, personal to the accused. It is only then that the inquiry proceeds to the second stage of determining whether the search was conducted in a reasonable manner. At par. 33, he said this:

It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must be made without reference to the conduct of the police during the impugned search. There are two distinct questions which must be answered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy: see Rawlings v. Kentucky, 448 U.S. 98 (1980). Usually, the conduct of the police will only be relevant when consideration is given to this second stage.

[38] In the result, I am not prepared to consider whether these two searches were, or were not, proper. The Applicant has standing to challenge only those two searches where he did have a reasonable expectation of privacy, namely the search of his residence, and the search of his 2003 Honda Civic.

Issue #5: The Honda Civic as a “Thing To Be Searched For”

[39] In his factum, the Applicant attacks the search warrant issued with respect to his Honda Civic, and asserts that it resulted in what amounted to a warrantless search.

[40] As already noted, there was a difference in the manner in which the Honda Civic, owned by the Applicant, and the vehicle owned by Joy Woods, were treated in the ITO and in the search warrants that were issued. Joy Woods’ Honda Accord was described in Appendix A as the “location to be searched”. Appendix B described “things to be searched for” at that location as “shopping bags of unknown descriptors that were carried from Rafferty’s vehicle to Woods’ vehicle just prior to Michael Rafferty’s arrest.”

[41] However, in the warrant for the vehicle owned by the Applicant, Appendix A described the location to be searched as “Ident. Bay #4” at the FIS office in Tillsonburg. Appendix B described the thing to be searched for at that location as a “2003 Honda Civic”, with VIN number and other identifying information.

[42] Det. Sgt. Gast indicated in his evidence that it was his decision to proceed in this manner. He did so because, based on the information the police had, as set out in the ITO, the Honda Civic had been used in the commission of the offence. Therefore, it was not just a place to be searched, it was evidence in and of itself. By seizing the vehicle itself as a thing to be searched, he was of the view that the police would be able to retain possession of it as an item of evidence, and subject it and its contents to an intensive search for trace evidence.

[43] He arrived at this approach through his experience in two previous homicide investigations, where a vehicle was similarly named not as the place to be searched, but as the thing to be searched for. Both resulted in successful prosecutions. He also was familiar with a reference work by Scott C. Hutchison, entitled Hutchison’s Canadian Search Warrant Manual, which makes the point that a vehicle can be both a place to be searched and a thing to be searched for.

[44] Det. Const. Gingras accepted Gast’s direction on this issue, and drafted the ITO accordingly. She acknowledged that, as the affiant, she was ultimately responsible for everything that went into the ITO, but she deferred to Gast’s experience on this point.

[45] In my view, the approach taken by the search warrant team is the correct one. The Honda Accord owned by Joy Woods was named as the place to be searched because what was of evidentiary value were the contents of the two grocery bags that were moved by the Applicant from his vehicle to hers shortly before his arrest. The Honda Accord itself had no evidentiary value, and would be returned to Joy Woods once the search had been completed and the items of relevance had been seized.

[46] By contrast, the Honda Civic was, according to the information the police had, used in the commission of the offence. It was the vehicle in which the victim had been abducted, and was used to transport her to the scene of her rape and murder. It was the vessel in which she was unlawfully confined throughout. It was the scene of her violent rape, during the course of which she bled while in the vehicle. It was, in other words, a crime scene on four wheels.

[47] The vehicle is no different in character than a handgun that had been used in a murder. Both represent tools used in the commission of an offence. The vehicle, and everything in it, constituted a crime scene where the police had reasonable and probable grounds to believe that trace evidence, such as blood spatter, semen and other bodily fluids, fingerprints, hair, fibres and other trace evidence, would be found. This belief arises both from the probability of the direct deposit of trace evidence, as well as from the transfer of trace evidence. The latter is based upon the application of “the Locard Principle”, cited in the ITO, which stands for the proposition that every contact leaves a trace and picks up a trace.

[48] By drafting the search warrant in the manner that they did, the police were authorized to seize the vehicle as an item of evidence, subject it to whatever searches and testing they deemed to be necessary, and retain secure possession of it pending the conclusion of these proceedings. Had it been designated merely as a place to be searched, as suggested by the Applicant, it would have had to be returned to the Applicant, or his representatives, after the search had been completed.

[49] In my view, the search of the Applicant’s Honda Civic was legal and authorized by the search warrant. The Applicant’s submission that this was a warrantless search is rejected.

Issue #6: Search of Items Found Within the Honda Civic

[50] Here, the Applicant argues that while the police may have had the legal right to search his Honda Civic itself, they had no right to search and seize any items found within the vehicle. This is because the search warrant, as drafted, listed in Appendix B only the vehicle itself, and did not list any contents therein to be searched for and seized. Again, therefore, it is suggested that the search and seizure of the contents amounted to a warrantless search.

[51] Det. Sgt. Gast and Det. Const. Gingras both testified that they understood the law to be that once they seized the car under a valid search warrant, they were fully entitled to search not only the surfaces of the vehicle but everything in it as well.

[52] Mr. Derstine mounted an attack on the candour of these witnesses in his cross-examination and in his submissions, suggesting that they deliberately omitted making any reference to the contents of the car so that they could search for anything they wanted, and conduct any testing or other forensic examination of the contents that they wished, without restriction. He made specific reference to the fact that the contents of the car included a laptop computer and a Blackberry. He suggested that these items, along with the rest of the contents, were deliberately omitted from Schedule B for some ulterior purpose.

[53] This submission is not logical. To begin with, the affiant did specifically disclose, in para. 5.100.13 of the ITO, that a laptop computer and Blackberry were observed by Det. Const. Christmas on the front passenger seat of the Civic. There was no effort to hide the fact that these items were found. In my view, the only logical explanation for having failed to list those items in Schedule B is the honest belief on the part of the search warrant team that it was not necessary to do so. They were firm and honest in their belief that once the vehicle itself was seized as a thing used in the commission of the offence, they were entitled to search the vehicle and all of its contents. If they had thought otherwise, it would have been a simple matter to include a reference to the contents in the search warrant, and they would undoubtedly have received a warrant to search those objects as well from the issuing justice, on the same grounds that justified the search of the car itself.

[54] In my view, their understanding of the legal ambit of the search warrant is correct. The right to search a vehicle carries with it the right to search its contents. This follows from the plain meaning of the word “search”. In an example that I posed to Mr. Derstine during argument, suppose that you are crossing the border and the border guard announces that he wants to search your vehicle. What does the guard proceed to do? He opens up the vehicle to see what is inside. Sometimes the vehicle is dismantled to look into the interior cavities of the vehicle to see what they contain. If contraband is found, it is seized. To search a vehicle implies a search of not just the surfaces of the vehicle but also a search of what the vehicle contains.

[55] The view advocated by the Applicant would lead to the absurd result that the police would be entitled to closely examine every interior and exterior surface of the vehicle, but in the course of so doing they would have to ignore everything that was in the vehicle. Objects would have to be moved out of the way so that the carpets, seats and mouldings of the vehicle could be closely examined, but the police would be forbidden from looking at or seizing the objects themselves.

[56] It is important to recognize that the car was seized and searched under the search warrant as something that was used in the commission of the offence. As already noted, the vehicle and everything in it constituted the crime scene. It would be both wrong and unnecessary to require the police to itemize every item within the vehicle that they intended to search for, for two reasons. First, they would have no way of knowing what the vehicle contained until they actually opened it up and commenced their search. Second, it really does not matter what objects the vehicle contains: everything in the vehicle, being part of the crime scene, is of evidentiary value, irrespective of the nature of any given object. Whether the vehicle contained a blanket, an empty coffee cup, an old newspaper, an article of clothing, or virtually any object one could name, each and every one of those objects is part of the crime scene and there are, therefore, reasonable grounds to believe that they contain trace evidence. It would, therefore, be pointless to attempt to list them in advance.

[57] There is, apparently, no clear statement of the law in this regard, probably because it is self-evident and largely a matter of common sense. Mr. Schwartz, for the Crown, was able to point to an American authority, Ohio v. Curtis (1978), 54 Ohio St. 2d 128 (S.C.), which held that where an automobile is seized by police officers as an item of evidence named in a search warrant, a search of the vehicle for other items is reasonable despite the absence of language in the search warrant specifying that it may be searched for items listed in the search warrant.

[58] Seizure of the contents of the vehicle would also be rendered lawful by virtue of s. 489(2) of the Criminal Code. This section authorizes any officer who is lawfully present in a place pursuant to a search warrant to seize, without warrant, anything that he believes on reasonable grounds will afford evidence in respect of an offence. I have already observed that since the contents of the vehicle are part and parcel of the crime scene, reasonable grounds exist to believe that every item within that car will afford evidence. Thus, even if the search warrant only authorized the police to search the surfaces of the vehicle, the contents could be seized pursuant to this authority.

[59] Furthermore, once the police are lawfully inside the vehicle searching its interior surfaces, all of the contents of the vehicle would be plainly visible. In such circumstances, the Applicant would be unable to establish a reasonable expectation of privacy in those items, which is fatal to his claim that his s. 8 Charter rights have been violated. That was the conclusion of Doherty J.A. in R. v. Nicolosi, 1998 2006 (ON CA), [1998] O.J. No. 2554 (C.A.). In that case, a vehicle was lawfully impounded pursuant to the provisions of the Highway Traffic Act, which further authorized the police to enter the vehicle for the purpose of cataloguing the visible contents. During the course of doing so, a handgun was found. The application by the accused to exclude the handgun pursuant to s. 24(2) of the Charter was rejected, because the accused could not establish a reasonable expectation of privacy in objects plainly visible upon entering the vehicle. Doherty J.A. also inferentially confirmed at para. 31 that, once the police had lawfully seized the gun, they had a right to examine it.

[60] Accordingly, the Applicant’s request to exclude the contents of the Honda Civic is dismissed, because he has failed to demonstrate a breach of his s. 8 Charter rights with respect to that search. Thus, the Crown is entitled to submit the items found in the car, listed in Appendix A to their factum, as evidence at trial. This includes the Good Life Fitness gym bag, upon which was found a mixed sample of DNA, an analysis of which could not exclude the Applicant and Tori Stafford as the donors, and which has been characterized by the Crown as perhaps the single most important piece of evidence in their case.

[61] If my analysis above is in error and a s. 8 breach did occur with respect to the contents of the vehicle, I would not have excluded this item pursuant to s. 24(2). The police were, in my view, acting in the good faith belief that they had a right to seize and examine the contents of the vehicle based upon the search warrant that entitled them to seize the vehicle itself. No caselaw has been cited to me to indicate that they were wrong in law in that belief. There is no doubt that a search warrant for this and the other contents of the Honda Civic would have been issued had it been requested. The Good Life Fitness bag was, in fact, one of the items listed on Appendix B to the warrant to search the Applicant’s residence, and the grounds for seizing that item are fully set out in the ITO. A breach, if one occurred at all, was a technical one only. The impact of the breach on the Charter protected interests of the Applicant was minimal, since he had virtually no reasonable expectation of privacy in the contents of the vehicle, as outlined above. Finally, this constitutes real, reliable, non-conscripted evidence that is central to the Crown’s case. Exclusion of this evidence would exact too great a toll on the truth- seeking goal of the trial. Society’s interests in the adjudication of this case on its merits would be better served by the admission of this evidence than by its exclusion.

[62] The Crown is also entitled to submit as evidence at trial the laptop computer and Blackberry, insofar as they constitute objects found within the vehicle which could be subsequently examined for trace evidence. As to whether they may also be searched for the information that those devices contain, that raises a separate and distinct issue which will be dealt with below.

Issue #7: The Search of the Applicant’s Residence

[63] Subject to issues #1, #2 and #3 above, which have already been dealt with, the Applicant concedes that the police were lawfully entitled to search his residence, and that many of the items seized pursuant to that search warrant may be relied upon by the Crown at trial. Mr. Derstine, quite helpfully, identified in argument which items on Appendix A to the Crown’s factum he conceded to be admissible, and which items he sought to be excluded.

[64] Item 1 on Appendix A is not being relied upon by the Crown. The items conceded to be admissible are item 3 (photograph of handwritten note); item 4 (copy of OCPS missing person’s poster); item 7 (blue folding knife); item 8 (three Nestle brand water bottles); item 9 (black pea coat); item 10 (two Oxycocet prescriptions); item 11 (empty Oxycocet pill bottle); and item 12 (Wavex hammer).

[65] With respect to items seized from the Honda Civic, Mr. Derstine also conceded that items 1, 2, 3 and 4, which were blood and semen samples seized from the surfaces of the vehicle, are admissible, but took the position that all of the items seized from within the vehicle were inadmissible. I have already ruled on that issue.

[66] Accordingly, the items seized from the Applicant’s residence which the Applicant seeks to exclude are the following: item 2 (Wal-Mart receipt dated April 11, 2009); item 5 (20 gig. Hitachi hard drive); and item 6 (digital memory card from camera). The Applicant also seeks to exclude the results of the search for information on the laptop and Blackberry that were seized from the Honda Civic.

[67] I will deal first with item 2, the Wal-Mart receipt. This evidence is relevant to the issue of post-offence conduct. On April 9, 2009, the media released video surveillance from the scene of the abduction depicting a “dark haired woman” walking with the victim. McClinic told the police that, following the abduction and murder, the Applicant demanded that she dye her hair to change its colour. The receipt, dated April 11, 2009, pertains to the purchase of two hair dye products from Wal-Mart. The bar code on the receipt matches the bar code on an unopened box of L’Oreal hair dye found in McClintic’s bedroom during the search of her residence. The receipt, therefore, serves to corroborate her evidence, and implicates the Applicant in the purchase of this product so as to alter the hair colour of McClintic.

[68] The Applicant’s objection is that the search warrant is overbroad. Indeed, the Crown concedes that it is overbroad in certain respects. For example, item 3 in Appendix B named, as things to be searched for, “clothing and belongings of Michael Rafferty, including but not limited to:” a list of specified items. Mr. Schwartz concedes that the italicized portion is a “basket clause” that is objectionable as being overbroad, since it could apply to virtually any item in the house. As a result, the offending words should be excised. However, he submits that doing so would not affect the validity of the search because the items that were seized, and which are now relied upon by the Crown as evidence, were covered by the balance of the search warrant, which remains valid.

[69] The receipt in question is arguably covered by item 20 in Appendix B to the search warrant, which reads as follows:

Bank statements, credit card statements, debt lists, ledger, journals, accounting documents, cancelled, deposited, cashed or paid cheques; bank pass books, electronic funds transfer confirmations and other similar documents such as credit card slips, debit receipts and cash sales receipts associated but not limited to gasoline purchases, vehicle repairs and fast food outlets that will show date, times and locations of purchases and dates, times and direction of travel.

[70] The issuing justice added to this item, in his own handwriting, the words “between March 1, 2009 and May 20/09”.

[71] The first question is whether, based on the ITO, the issuing justice could have issued a search warrant that contained this particular item.

[72] The standard of review of a decision of the issuing justice to issue a search warrant is stated by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452 as follows:

The reviewing judge does not substitute his or her view for that 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.

[73] The ITO contained information relating to the movements of the Applicant and McClintic before, during and after the date of the abduction, April 8, 2009. It documented evidence that both McClintic and the Applicant took steps to destroy evidence after the abduction and murder of the victim. Page 106 provides specific evidence that hair dye was purchased to alter McClintic’s appearance. In my view, that provides an ample basis upon which the issuing justice could issue a search warrant that included item 20. Both the movements of the Applicant and McClintic, before, during and after April 8, 2009, and any purchases or transactions made by them, were highly relevant to the investigation, and reasonable grounds existed to believe that evidence of the kind sought would be found at their respective residences.

[74] In this regard, I rely on the observations of Hill J. in R. v. Sanchez, 1994 5271 (ON SC), [1994] O.J. No. 2260 (Gen. Div.), where he said the following, at para. 39:

It is common knowledge from our experience with warrants to search that evidence relating to an offence may be discovered at premises under the control of one suspected to be complicit in the crime or at a location occupied by an innocent third party custodian of the things to be searched for.

[75] While some broad wording was employed in the words “associated but not limited to”, those words were then qualified to limit them to documents that show the times and locations of purchases, and dates, times and direction of travel. Those words of limitation, in my view, served to close the category of items to be searched for so that a seizing officer, with no knowledge of the investigative background, would be able to look at the search warrant alone and be in a position to make a reasoned and considered decision as to whether a particular item did or did not fall within this description. The category was further limited by the issuing justice himself, by imposing a time frame of March 1 to May 20, 2009. For these reasons, I do not find item 20 to be overbroad.

[76] I am satisfied that item 20 was properly included in the search warrant, and I am further satisfied that the Wal-Mart receipt dated April 11, 2009 was properly seized pursuant thereto.

[77] I will next deal with item 6, the SanDisk digital memory card. This card was found near the front entrance in the Applicant’s residence. It was not in a camera at the time, but from the metadata contained on the card it was linked to the Applicant’s Sony Cybershot camera. This card contains a number of photographs, including three of McClintic that serve to corroborate her statement that she spent a night out at the movies with the Applicant in late March 2009, and subsequently spent the evening together at the Super 8 Motel. The fact that McClintic and the Applicant had an intimate relationship is a relevant fact in the Crown’s case, because it provides important context for the events of April 8. Furthermore, the t-shirt that McClintic is wearing appears to be the same one worn by the Applicant in his Facebook self-portrait photographs.

[78] Items 12, 13, 14, 15, 16 and 19 of Appendix B to the search warrant arguably have relevance to this seizure and to the seizure of the 20 gig. Hitachi hard drive, which I will be discussing shortly. Item 12 authorizes a search for:

A computer system as defined in section 342.1(2) of the Criminal code, R.S.C. 1985, Chap. C-46 as:

“... a device that, or a group of interconnected or related devices one or more of which,

a) contains computer programs or other data, and

b) pursuant to computer programs,

I. performs logic and control, and

II. may perform any other function

[79] Item 13 authorizes a search for the following:

Computer systems peripherals and related devices, including the video monitor, any input or output devices, and associated communication equipment, cables and connectors devices or media capable of storing data (defined in section 342.1(2) of the Criminal Code, R.S.C. 1985, Chap. C-46 as “...representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system”). [emphasis added]

[80] Item 14 authorizes a search for “devices, media and documents containing computer passwords.”

[81] Item 15 authorizes a search for “operating systems and computer programs”, while item 16 authorizes a search for “computer system or software manuals and references materials”.

[82] Item 19 authorizes a search for the following:

Correspondence, notes, calendar, date books, address books, hardcopies of electronic e-mail, telephone records, bank cheques, money orders and other similar documents showing a relationship between Michael Rafferty, Terri-Lynne McClintic and the victim, Victoria Stafford and Victoria Stafford’s family.

[83] The digital memory card is a type of digital media that stores digital photographs. Thus, it falls within the description of “media capable of storing data” in item 13, and therefore on its face the seizure of the card was authorized by the search warrant. The question remains, however, whether the warrant was overly broad.

[84] Item 13 does not specify what type of data is being searched for on the storage media. This same issue arises with respect to the seizure of the 20 gig. Hitachi hard drive (item 5 in Appendix A to the Crown’s factum), which will be discussed further below, but which bears mentioning at this juncture. Computer systems and similar devices are authorized to be searched, by virtue of items 12, 13 and 14, but no parameters are included that specify what sorts of documents or information are to be searched for on those devices. Does this render the warrant overly broad?

[85] The Ontario Court of Appeal addressed a similar situation in R. v. Jones, 2011 ONCA 632, [2011] O.J. No. 4388 (C.A.). In my view, Jones is an extremely important decision in this emerging area of the law, and provides a virtual roadmap for navigating most of the computer-related issues presently before this court.

[86] The police believed that Jones had participated in a fraudulent internet scheme involving the sale of a motorcycle. They seized his computer pursuant to a search warrant, and in the course of examining its contents for evidence of fraud, they discovered evidence of child pornography. They obtained a legal opinion from Crown counsel that they did not require a further search warrant to expand their search to view video files, and when they proceeded to do so, videos of child pornography were found.

[87] As outlined at para. 8 of the reasons of Blair J.A., the relevant portions of that search warrant included the following:

• All originals or copies of documents or data whether recorded on paper or as data stored within a computer system relating to the email transmissions form Ronald Jones to James Holtz, including but not limited to any email address used by Ronald Jones including rob-johnson_nysp@hotmail.com that contacted the victim James Holtz at this email address mud4you@rochester.rr.com or by any other means.

• Any electronic data processing and storage devices, personal computer and computer systems ...

• Any documents ... images, digital representations and templates of counterfeit tokens of value including but not limited to counterfeit Western Union money orders.

[88] As in the present case, the second bullet point above authorized the seizure and search of computer systems, without specifying the type of data that was to be searched for on the computer. The defence argued that this was overly broad.

[89] In the overview of his analysis, Blair J.A. set out his conclusions on this and the other main issue, at paras. 23-24:

I have concluded that the trial judge was correct in holding that the warrant itself was valid for purposes of authorizing the search for evidence of fraud, but that it did not authorize a different search for evidence of child pornography other than that found in the data image files.

This is not because the warrant should be struck as "too broad," in the sense that it contained no limitations on the ability of the police to search the computer, and therefore improperly invaded the high expectation of privacy the respondent had in the contents of his computer, as the respondent argues. It is because the warrant itself is properly restricted in the circumstances. Although it contained no limitations on the types of files that could be examined, it was reasonably focused and limited in the types of evidence the police could seek; and that evidence did not include evidence of child pornography.

[90] In a portion of his reasons subtitled “Was the Warrant ‘Too Broad’”, Blair J.A. addressed this issue in more detail, at paras. 32-34:

First, I do not read the warrant as authorizing a comprehensive review of the entire contents of the appellant's computer without limitation. It is true that there are no parameters on the types of files that could be accessed or on the relevant time frame within which the police were entitled to examine the dated files on the computer. I do not see either of these factors as fatal, however.

As noted above, the warrant places restrictions on the type of evidence that may be sought and is therefore not as broad and unlimited as may be suggested. It authorizes a search and seizure in respect of evidence of fraud. And in respect of fraud, it is relatively focused in its reach: it permits a search in the respondent's residence for, and the seizure of: (i) any personal computers and related equipment or devices ("the computers"), (ii) data stored within a computer system relating to email transmissions between the respondent and the seller of the motorcycle, and (iii) any documents, images or digital representations of counterfeit tokens of value including, but not limited to, counterfeit Western Union money orders. In effect, the warrant contemplated a two-staged search: first, for the computer and related devices, and secondly a search of the contents of the computer for evidence relating to the email transmissions and the counterfeit images in question. This is not too broad.

Ms. Ives further submits that the warrant is invalid on its face because it does not place any constraints on the relevant time frame within which the police were entitled to examine the dated files on the computer: see R. v. Du, 2004 ABQB 849, at paras. 16-22. I do not think much turns on this omission here, however, because the warrant is quite clear and focused with respect to the targets of the computer search, i.e., data stored within the computers systems relating to the described email transmissions and images, digital representations and templates of counterfeit tokens. Date parameters are not particularly pertinent to that inquiry and their absence does not allow the police authorities to stray beyond the legitimate targets of the search. The warrant is not overly broad in this respect either, in my opinion.

[91] In effect, the court held that the broad, unrestricted authorization to search any computer system was qualified by the other terms of the warrant, which served to limit the types of documents that could be searched for. The warrant was held not to be overbroad precisely because of those limitations.

[92] Applying that approach to the case at bar, I conclude that the broad, unrestricted terms of items 12, 13 and 14 are qualified by items 19 and 20, which serve to limit the types of evidence that the police are entitled to look for. For these reasons, I do not find the warrant to be overbroad.

[93] Returning to the item of evidence in question, the SanDisk memory card contains digital photographs and nothing more. It is the equivalent of an electronic photo album. While the photographs are somewhat more difficult to view than simply opening the cover of an album, it is still quite simple. The card was found in an adaptor that could easily be plugged into a computer, and the pictures viewed with picture viewing software. Alternatively, the card could be inserted into a compatible camera, and the pictures could be viewed on the camera’s monitor.

[94] Item 19 of the search warrant authorized a search for documents showing a relationship between the Applicant, McClintic, Tori Stafford and her family. The relevance of showing a relationship between the Applicant and McClintic has already been dealt with, and is well supported in the ITO. The ITO also establishes a link between McClintic and the child’s mother, which needed to be investigated to determine if parties other than the Applicant and McClintic were implicated. It is a reasonable inference that evidence showing a relationship between the Applicant and others would be found at his principle place of residence.

[95] Such evidence could reasonably include a photo album, because one would reasonably expect a photo collection to show the Applicant interacting with other people with whom he has a relationship, at social gatherings and otherwise. Even if the Applicant is not shown in the photo, repeated photographs of a person could support the existence of an interest in, and therefore a relationship with, that person. In my view, the search warrant is broad enough to authorize the seizure of what amounts to an electronic photo album. The word “documents” in a search warrant can be interpreted to include electronic versions of documents: see R. v. Vu, 2011 BCCA 536. The memory card was found in plain view, and was examined for the purpose of searching for evidence of relationships between the named parties. The evidence that is sought to be adduced by the Crown falls precisely into this category, since it supports the existence of a relationship between the Applicant and McClintic. I am satisfied that this evidence was lawfully obtained pursuant to the search warrant, and that no s. 8 breach occurred.

[96] If I am wrong, I would not have excluded this evidence pursuant to s. 24(2). Without embarking on a full analysis, the key factors in that regard would be that the police were in the residence pursuant to a valid search warrant; there is no evidence that the police acted in bad faith in seizing an item that was in plain view and fit within the category of items that could be seized pursuant to item 19; the impact on the Charter-protected rights of the Applicant was negligible, since the police were lawfully in the residence and entitled to search the house from top to bottom for the enumerated items, such that the Applicant had no reasonable expectation of privacy in the other contents of the residence; and it is real, non-conscripted evidence, that existed independently of any Charter breach.

[97] The final item that was seized from the Applicant’s residence, and which is sought to be excluded, is the Hitachi 20 gig. hard drive (item 5 in Appendix A to the Crown’s factum). This was found inside a clear plastic bag hidden behind a dresser and other belongings in the Applicant’s bedroom. It was formerly a component of a laptop computer. The probative value that is attributed by the Crown to this evidence, as set out in Appendix A to their factum, is threefold. First, an examination of the hard drive revealed the Applicant’s internet browsing history from 2005-06, and showed that he virtually never accessed online news media websites. This contrasts with his internet activity on his laptop during the weeks following Tori Stafford’s abduction, when he showed intense interest in following this news story. Second, data from the hard drive assisted E-Crimes in establishing patterns of computer use that assisted them in concluding that the Applicant was the principal, if not exclusive, user of the laptop found in his car. Third, an examination of the hard drive revealed that, in 2005-06, the Applicant had downloaded child pornography using Limewire. When the police examined the Applicant’s laptop, they found data fragments from which it may be inferred that the Applicant had also used Limewire in the months leading up to the offence to access child pornography.

[98] In oral argument of motion C-7 dealing with electronic evidence, where the nature of the evidence sought to be relied upon by the Crown was canvassed in greater detail, Mr. Carnegie, for the Crown, indicated that the Crown would not be seeking to elicit evidence that the Applicant downloaded child pornography, primarily because this would constitute inadmissible character evidence.

[99] Despite this concession, it is still worthwhile to discuss the issue of child pornography, because it animated much of the oral argument on this application. The Crown relied on an inference that a person who commits the rape of a child would probably also have an interest in child pornography, and offered this inference as forming part of the reasonable and probable grounds for searching for a computer at the Applicant’s residence. The defence attacked this argument on two fronts. First, Mr. Derstine invoked R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 to make the point that no proper evidentiary basis had been laid in the ITO to support such an inference. Second, he argued that this inference that the Applicant was a sexual deviant was inferentially supported by improperly referring to a report from London Police Services alleging that the Applicant had anally raped a complainant he had met on line. That reference in the ITO stated (incorrectly, as it turns out) that the police determined the conduct to have been consensual.

[100] When the computer equipment and related devices that were seized landed on the desk of the forensic examiner, Det. Const. Falconer, he wrote an email (Ex. 4) on May 24, 2009, in which he stated that he has reviewed the ITO and noted “very little articulation in regards to items that can be located on an examined computer relating to this investigation. (Seems limited to child porn).” He said he “would like to discuss some issues in regards to the seizure of these devices and consideration to a secondary warrant prior to their examination.” He was subsequently advised by Det. Sgt. Gast, in effect, that he could perform an unrestricted search of the contents of the computer equipment and related devices.

[101] The striking point that emerges is that, despite the focus in the ITO on the usage of a computer to download child pornography, the search warrant itself makes absolutely no mention of child pornography. While Det. Const. Falconer referred to the ITO to determine the proper scope of his investigation, it should not have been necessary for him to do so. As Blair J.A. stated in Jones above, the search warrant itself should be reasonably focussed and limited in the types of evidence the police could seek. And at para. 25, he expressly rejected the notion (for which some support can be found in prior caselaw: see R. v. Weir, 2001 ABCA 181, [2001] A.J. No. 869 (C.A.); R. v. Giles, 2007 BCSC 1147, [2007] B.C.J. No. 2918 (S.C.)) that once the police had possession of the computer, they could search for anything they wished:

In addition, I do not accept the Crown’s argument that the warrant authorized the search because a computer is an indivisible object which, like pieces of physical evidence, can be tested and inspected in whatever ways the police deem necessary once lawfully seized under the warrant. I also reject the somewhat connected suggestion that because the right to seize a computer would be a hollow one without the ability to examine its contents, it must follow that the police are entitled to examine the entirety of the contents.

[102] At para. 42, Blair J.A. made it clear that it is the warrant which must articulate the legitimate targets of the search, even though searching for those targets may require unlimited access to the computer files:

I do not accept that the right to examine the entire contents of a computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint – even where, as here the warrant may properly authorize unlimited access to the computer’s files and folders in order to accomplish its search objectives. A computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant.

[103] The seizing officer should be able to, and indeed must, look to the search warrant itself to determine the proper ambit of the search to be performed. The terms of items 19 and 20 which, I have found, serve to define and limit the types of information the police can search for, do not include child pornography. Searching for the types of information set out in items 19 and 20 would not involve a search of video files. As in Jones, a video file was not the type of file that was reasonably permitted to be searched by the search warrant. Thus, it could not even be said that such files might be properly seized under the “plain view” doctrine or pursuant to s. 489.

[104] Accordingly, I would have ruled that the police had no authorization under the warrant to search for child pornography, even had the Crown not conceded that it does not intend to rely upon this evidence at trial.

[105] The next question to be addressed is whether the two categories of evidence emanating from the Hitachi hard drive that the Crown does wish to tender at trial fall within the ambit of the search warrant.

[106] Item 20, as discussed above, relates to documents showing the movements and purchases of the Applicant and McClintic between March 1 and May 20, 2009. It was immediately obvious to Det. Const. Falconer, when he examined the hard drive, that it had been in use from May 2004 until March 27, 2006, at which point in time all activity ceased. This is well before the time frame stipulated by the issuing justice in relation to item 20, and no further search could be justified under this item.

[107] Det. Const. Falconer testified that his first priority in searching this hard drive, and the laptop and Blackberry as well, was to search for images of Tori Stafford, the Applicant and McClintic. This would fall within item 19, since it would constitute evidence of a relationship between those named parties, although they would be of questionable relevance given the dated nature of the hard drive. He found none.

[108] His next priority was to search for on-line communications between these same individuals. This included searching on-line websites known to have been used by Tori Stafford, as well as instant messaging services, to search for links between the parties. This search, again, would fall within item 19, because it would constitute evidence of a relationship between the parties named in the warrant. Once again, no links were found.

[109] The evidence found on the hard drive by Det. Const. Falconer that the Crown seeks to elicit at trial relates to the Applicant’s internet browsing history in 2005-06, to show two things: first, that he virtually never accessed online news media websites; and second, to establish a pattern of internet activity. This evidence will only be relevant at trial if the results of the search of the laptop are admitted, because the information on the hard drive serves to establish a baseline for comparison. With respect to accessing news media, the comparison will show no history of interest in news media on the hard drive, compared to intense interest in news stories about Tori Stafford following her abduction. With respect to his pattern of internet activity, the usage demonstrated on the hard drive establishes patterns that are repeated on the laptop, and support a conclusion that the Applicant was the primary, if not exclusive, user of the laptop.

[110] None of this evidence falls within item 19, and therefore cannot be said to have been authorized by the search warrant. It may be argued that it falls within the “plain view” doctrine, or falls within s. 489, since searching for on-line links between the Applicant and the other parties necessarily involves a wide ranging look at the Applicant’s internet usage, from which patterns would emerge even if that were not the purpose of the search. However, one of the requirements for the application of the plain view doctrine is that the evidence be discovered “inadvertently”. From the evidence of Det. Const. Falconer, it appears that searching the computer to establish patterns of usage was a stated objective, not an inadvertent by-product, of the search that was done.

[111] This point was not clearly addressed in the evidence or argument of this application. However, it is not necessary to rule on it unless and until the results of the search of the Applicant’s laptop are found to be admissible. If information found on the laptop is excluded, then the evidence found on the hard drive is rendered irrelevant, and would be inadmissible on that basis.

[112] For the same reason, it is not necessary at this time to consider other concerns with the ITO that were raised during argument relating to the residential computer search, such as the failure to source information that computers were in the house; the failure to make it clear that Deborah Murphy had said that there were two computers, one of which was a laptop owned and used by the Applicant, and that the laptop was seen by investigators to be in the Honda Civic, not at the Applicant’s residence; the propriety of including information from London Police as to the sexual assault allegation, referred to above, and whether that information should be amplified or excised; or the decision to include information as to the extent of the contemplated forensic computer search in Appendix E to the ITO, rather than in the main body of the document. The only computer equipment seized in the residence that is sought to be relied upon by the Crown pursuant to the search warrant is the Hitachi hard drive. Once again, if exclusion of the results of the laptop search renders evidence emanating from the hard drive irrelevant and inadmissible, any defects in the warrant to seize computer equipment from the residence become moot.

[113] Accordingly, I now move to a consideration of the admissibility of the information gleaned from the search of the laptop and Blackberry, both of which were seized from the Applicant’s car while it was being searched.

Issue #8: The Search of the Laptop and the Blackberry

[114] In recent years, computers and hand-held devices have come to be recognized as repositories of a wealth of highly personal information. This was recognized by Fish J. in Morelli (supra at paras. 2-3) where he said the following:

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

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

[115] Given this, it is not surprising that the law has evolved to recognize that computers and related devices are not merely objects that, once lawfully seized, can be subjected to forensic testing to determine whether they contain evidence of a crime. Instead, they are also seen to be places, which hold information that is invested with a very high expectation of privacy. As such, if the police wish to “enter” those places and search for information, they must obtain a valid search warrant before doing so.

[116] This was the view of Fuerst J. in R. v. Little, 2009 41212 (ON SC), [2009] O.J. No 3278 (S.C.J.), where a Treo “smartphone” was lawfully seized by the police pursuant to s. 489(1)(c) during a search of the residence of the accused. While it was quite permissible to analyze the phone to determine its telephone number, and to forensically examine the blood spatter on it, the court held, at para. 149, that:

[i]f the police wished to examine the information stored in the Treo, they should have applied for a warrant authorizing the search of its contents. The Treo was safely in their possession. There was no urgency to search its contents, nor were there other circumstances that made it impracticable to obtain judicial authorization for the search.

[117] A similar ruling was made by Trafford J. in R. v. Polius, [2009] O.J. No. 3074 (S.C.J.). In commenting on Polius during the course of his reasons in R. v. Manley, 2011 ONCA 128, [2011] O.J. No. 642 (C.A.), Sharpe J.A. said the following, at para. 39:

Accordingly, it is neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information - all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

[118] In view of the current jurisprudence, Mr. Schwartz concedes that the forensic search of the information contained on the laptop and Blackberry does not pass constitutional muster, despite the devices themselves having been lawfully seized from the Applicant’s car. It is, therefore, conceded that the s. 8 rights of the Applicant have been breached. I agree with that concession.

[119] The focus of these reasons must, therefore, shift to a consideration of s. 24(2) of the Charter.

[120] In R. v. Little, [2009] O.J. No. 3385 (S.C.J.), Fuerst J. dealt with the application of s. 24(2), having found in her earlier ruling, cited above, a breach of s. 8. At paras. 10 to 13, she concisely and helpfully sets out the current framework for analysis:

Section 24(2) requires that evidence be excluded where, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. In the majority opinion in R. v. Grant, 2009 SCC 32 the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice, and not to punish the police or compensate the accused. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The question, as framed by the majority at paragraph 68, is an objective one: "[W]hether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute".

The majority determined that a judge faced with an application for exclusion of evidence under s. 24(2) must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to three factors:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused; and,

3. Society's interest in the adjudication of the case on its merits.

The judge must consider each of the three factors, then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

There is no overarching rule that governs how the balance is to be struck.

[121] The first factor is the seriousness of the Charter-infringing state conduct.

[122] The police came into possession of the laptop and Blackberry lawfully, pursuant to their search of the vehicle that had been authorized by a search warrant validly obtained. They were authorized to examine those objects for trace evidence, as they were entitled to examine everything else found in the vehicle since, according to the information they had, it had been used in the commission of the offence under investigation.

[123] They were not, however, authorized to forensically search the two devices for the information that they contain. They proceeded to do an exhaustive search of the entire contents of both devices, without a warrant and in breach of the s. 8 Charter rights of the Applicant.

[124] Their conduct cannot be described as a deliberate, brazen, flagrant or egregious breach of the rights of the Applicant. They were operating under the honestly-held belief that these searches were authorized by the search warrant that related to the vehicle in which the devices were found.

[125] However, I find that their conduct was, at the very least, careless. It is true that the searches in question took place before the release of Little on July 27, 2009, which was the first case to clearly articulate that a further search warrant was needed in these circumstances. As in Little, it can be said that, at the time of the search, no binding authority indicated that the police were obligated to obtain a search warrant.

[126] Nevertheless, the issue as to whether a secondary warrant was needed was expressly raised by Det. Const. Falconer in his e-mail, prior to the searches of the devices being conducted. Det. Sgt. Gast instructed Falconer to proceed, based on his belief that the search warrant covering the vehicle was sufficient. He relied in part upon his experience, but also on the training he had received over the years. He considered Hutchinson’s Canadian Search Warrant Manual to be an authoritative resource, and purchased two copies of the 2005 edition for this very investigation.

[127] An excerpt from the 2003 edition was filed as Ex. 5 on this application, and deals with the issue of overseizure. I am advised that the relevant part is virtually identical to the 2005 edition. At page 107, the author states the following:

One challenge peculiar to electronic media is that of overseizure. A warrant authorizes the seizure of certain identifiable things. The seizure of those things is justified by the grounds in the Information to Obtain. The warrant will be properly challenged if it authorizes the seizure of things beyond those justified by the grounds.

[128] At page 108, the author deals with a situation where a valid warrant authorizes a search for child pornography, but the search reveals evidence of fraud. He states the following:

In such a situation the concepts of plain view would seem to provide the police with a legitimate justification for their conduct. There is, however, good reason to question whether this approach will survive.

The search and seizure of mass storage devices tests the “reasonableness” of plain view in context of computer crime investigations. Justifiable searches will often require sweeping examinations of all data on a hard drive. Where the circumstances of the particular investigation justify such a wide ranging search (for example, where evidence suggests that the target of the search has used “counter measures” to secret seizable data in, or disguised as, other files), then no issues should arise.

Where, however, police routinely seize and review all material on a hard drive, even if they know only a small percentage is likely to be responsive to their warrant, then constitutional issues are engaged. At present these issues remain unresolved but it is likely that police use of software such as Encase will be challenged as “over seizure”.

[129] Encase was, in fact, the software used in the search of the laptop.

[130] I appreciate that the author was dealing with a situation where a wide ranging search went beyond the parameters of a validly issued search warrant. However, the point made by the author should be equally, if not more, applicable where a wide ranging search is conducted upon a computer where there is no warrant to search that computer at all, but merely a warrant to search the vehicle in which it was found.

[131] It is clear that no exigent circumstances existed that would have prevented the search warrant team from obtaining a secondary warrant. The laptop and Blackberry had been seized and were secure. While the search warrant team, and Det. Const. Gingras in particular, had expended Herculean efforts to obtain the four primary search warrants as quickly as possible, that crisis no longer existed once the devices were in police custody. There is no reason why a secondary warrant could not have been applied for in the days following the initial seizure.

[132] In sum, while I have no quarrel with the conduct of the police up to and including the issuance of the four warrants, and am satisfied that they were doing the best they could in the face of extremely difficult circumstances, the failure to later obtain a secondary warrant prior to searching the laptop and Blackberry demonstrates a careless disregard as to whether the rights of the Applicant would be violated if they failed to do so. In other words, they took the risk, a risk that was made clear in the very textbook that Det. Sgt. Gast relied upon, that such a search might turn out to be contrary to the Charter. This factor weighs in favour of exclusion.

[133] This case can be distinguished from Little, in that the police in that case sought out an opinion from an experienced Crown attorney before proceeding with their search. While that opinion turned out, in hindsight, to be wrong, the police could hardly be faulted for having relied upon it. Justice Fuerst ultimately declined to exclude the information obtained from the Treo handheld device.

[134] The second factor is the impact on the Charter-protected interests of the accused. Since Morelli, it can confidently be said that the information contained on a laptop computer carries with it an extremely high expectation of privacy. This laptop contained, among many other things, a record of the Applicant’s internet browsing history, showing intimate details of his personality and interests in the subjects that he searched (many of which were characterized in argument as perverse); it contained movies and artefacts of movies that he had downloaded; and it contained records of communications, not only of those initiated on his laptop, but also those he had conducted on his Blackberry, since that device was synced with the laptop. The device was password-protected, signifying an intention that the contents of the computer were private.

[135] Justice Fish, in discussing the second Grant factor in Morelli, and after discussing how personal and intimate are the contents of a personal computer, had this to say, at para. 107:

It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-protected privacy interests of the accused than occurred in this case.

[136] The impact on the Applicant’s Charter-protected interests is less significant with respect to the Blackberry. This is primarily because it did not contain the vast array of personal information found on the laptop, but primarily contained information about telephone calls and text messages sent and received. However, such communications carry a high expectation of privacy as well, which is reflected in the requirement that judicial authorization be obtained before private communications can be intercepted.

[137] A consideration of the second factor weighs in favour of exclusion.

[138] The final factor is society’s interest in the adjudication of the case on its merits. As summarized in Appendix A to the Crown’s factum, and as modified during argument on motion C-7 (Electronic Evidence), the evidence obtained from the laptop computer contained data from which, the Crown submits, the following inferences could be drawn:

• The Applicant was extremely interested in the progress of the police investigation following the offences, and regularly accessed news media websites;

• Blackberry backup files on the laptop confirm:

o Relevant communications with McClintic and other parties that corroborate her account of the circumstances of the offences and the events before and after;

o The relationships between the Applicant and McClintic, and other relevant persons;

o The Applicant’s activities immediately following the offences (including socializing with other girlfriends) that may rebut any defence that the Applicant was an unwilling party or witness to the offences; and

o The Applicant’s incriminating post-offence conduct, in attempting to induce McClintic to change her appearance, and attempting to modify the appearance of his car;

• Date gaps in the Blackberry back-up file suggest post-offence efforts to erase incriminating electronic evidence;

• The laptop contains a movie, Gardens of the Night, downloaded prior to the abduction, rape and murder, which is said by the Crown to provide a virtual blueprint for the abduction;

• The laptop records an internet search history that reveals an interest in raping children.

[139] The information on the Blackberry is duplicated in its entirety on the backup files on the laptop, and need not be repeated. The primary value of this evidence would simply be to confirm the accuracy and completeness of the backup data.

[140] In considering the third factor, the question to be asked is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79. The reliability of the evidence is an important factor in this line of inquiry. If the breach in question undermines the reliability of the evidence, that militates in favour of exclusion. That is not the case here. The evidence existed entirely independently of the Charter breach.

[141] At para. 83, McLachlin C.J. and Charron J., writing for the majority, discussed how the importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, 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.

[142] The reference in this passage to the reasons of Deschamps J. may be found at para. 226, where he said the following:

As a corollary, whether the evidence in issue is essential or peripheral is highly significant.

[143] The first item of evidentiary value emanating from the laptop, summarized at para. 136 above, is the Applicant’s post-offence internet searching activity, where he demonstrated an interest in the ongoing progress of the investigation. This is post-offence conduct which, the Crown theorizes, shows a motivation to keep one step ahead of the police. Post-offence conduct is rarely the most important evidence in the Crown’s arsenal, particularly where it might serve only to show some involvement in the events in question, as opposed to providing any circumstantial evidence as to the precise role played in those events. From the submissions of counsel, it appears that the latter will be the focus of this case as the evidence begins to play out.

[144] This evidence is further weakened by the common sense reality that the Applicant would have been only one of perhaps many hundreds of Woodstock residents who demonstrated a keen interest in following this case in the media.

[145] The next three points all relate to the Blackberry backup files, where the data will corroborate the Applicant’s communications and relationships with others, both before and after April 8. This evidence is relatively unimportant because in almost every case the same point can be proven through other evidence that was not obtained through a Charter breach. Every communication involves both a sender and a recipient, and the Crown is in a position to provide this evidence from the other end of the phone, so to speak.

[146] The evidence that the Applicant induced McClintic to dye her hair is contributed to by one message in the Applicant’s Outbox, sent April 11, 2009 at 7:51 p.m., where the message was “Get it?” This obscure communication is of little corroborative value, and pales in importance to the Wal-Mart receipt and the discovery of the matching unopened box of hair dye that is described above.

[147] Date gaps showing an effort to delete “incriminating” electronic content could have some value as post-offence conduct. However, on reviewing the deleted messages themselves at Tab 3b of Ex. 2 in Motion C-7, it is difficult to label any of them as “incriminating”. They are, at best, of peripheral relevance.

[148] The movie Gardens of the Night was downloaded onto the Applicant’s laptop on March 28, 2009. The opening 15 minutes of that movie was played in court during argument on Motion C-7. It is a professionally made, Hollywood movie, which depicts an adorable young girl with blonde hair being abducted on her way home from school. To call it a “blueprint” for the abduction of Tori Stafford is not accurate, however. There are significant differences between the story line in the movie and the facts of this case as the Crown believes them to be. The movie involves two men as the abductors, not a female and a male. The abduction is done in two stages. First, the principal male befriends the child on her way to school, through discussions about his supposedly missing dog. He then drives her to school and drops her off, and in the conversation along the way he convinces her that he works with the child’s father. He later pulls up beside her as she is walking home from school, tells her that her father is in trouble and has asked him to pick her up, thereby inducing her to enter the vehicle. At that point, she is drugged into unconsciousness by being given a soft drink laced with some chemical.

[149] Despite the differences, the Crown could argue that this movie, at the very least, is about the same subject matter: the abduction of a young, blonde girl on her way home from school. Tori Stafford fits that description perfectly, and appears to be of a similar age to the child actress in the movie. However, the evidence that the Crown will be relying on is that Tori Stafford was plucked from the street at random, as opposed to being a carefully selected, blonde victim of the right age. Indeed, the evidence of McClintic is expected to be that the Applicant was upset that Tori was as old as she was, because she would be able to identify them later on.

[150] This movie is of marginal probative value. Its prejudicial impact, however, is extreme. The potential for this movie to inflame the jury cannot be overstated. There is a danger that the jury would not confine the use of this evidence to motive and planning, but would rather see it as something akin to a re-enactment of the abduction. The angelic little blonde actress in the movie is likely to become the embodiment of Tori Stafford in the minds of the jury. A work of fiction is likely to become something resembling reality.

[151] I will be ruling on Motion C-7 immediately following the release of this decision, but I can say at this point that if Gardens of the Night survives the s. 24(2) analysis, it will nevertheless be ruled inadmissible based on my conclusion that its prejudicial impact far outweighs its marginal probative value.

[152] The final aspect of the evidence emanating from the laptop is the recent internet browsing history of the Applicant. The details of this evidence can be found at Tab 4b of Ex. 2 in Motion C-7. It is not possible to say when these search queries were posed by the Applicant, just that they were happened between January 25 and April 7, 2009, and that the first and last entries represent the earliest and latest.

[153] The entries represent search terms entered by the user “Mychol” which, the Crown expects to prove, is the nickname commonly used by the Applicant, both on the internet and elsewhere. The queries sought to be admitted by the Crown include the following:

• Underage rape

• Real underage rape

• Real underage rape pictures

[154] There are many other queries that the Crown does not seek to elicit in evidence, because they constitute evidence of bad character. These include entries relating to the drug “oxycotton” (sic), “pussy close up”, “pussy close up videos”, “tight ass”, “transgender”, “necrophilia videos”, “real rape”, “best program to download child porn”, “nude preteen”, “how to find preteen web sites”, “naked girl seazing”, “seizures girl”, “seizures videos”, “epileptic naked”, “epileptic naked attack”, “preteen nude model galleries”, “real gang rape” and “peeing”.

[155] The Crown concedes that the internet searches that it does seek to enter into evidence do, arguably, constitute character evidence, but submits that these entries are admissible for another, legitimate purpose, namely as evidence of motive and planning.

[156] Mr. Derstine submits that to admit the three search queries on their own without the rest would place undue emphasis on an interest in underage rape, which would distort the fact-finding process. The search queries demonstrate the potential for several paraphilias, such as necrophilia and fetishes involving sex associated with epileptic seizures. Placing a demonstrated interest in underage rape among a list of several other deviant interests, in an absence of evidence that the Applicant was motivated to act out on those other interests, tends to undermine the value of this as evidence of motive or planning to commit child rape.

[157] The Catch-22 in all of this is that admitting evidence of these other deviant interests, so as to place the child rape queries into proper perspective, would also serve to greatly enhance the prejudice that flows from the fact that such evidence is unquestionably evidence of bad character. It would be hard for the jury to resist the temptation to conclude that the Applicant is a sexual deviant who is, therefore, more likely to have committed the rape and murder of the victim, despite any instructions to the contrary.

[158] While it may well be that this evidence could be held to be admissible as evidence of motive and planning, it would be a close call. In my view, it cannot be said that society’s interests in the adjudication of the case on its merits are best served by admitting evidence that was obtained by means of a Charter breach, when its probative value is so weak and its prejudicial effect will be so devastating.

[159] As to the rest of the evidence emanating from the laptop as discussed above, I have already found it to be either inadmissible, or of weak probative value. For the most part, the points sought to be proven by that evidence can be proven by the Crown through other evidence that does not involve a Charter breach.

[160] A consideration of the third factor militates in favour of exclusion as well.

[161] The final step is a balancing of all of these factors. That is a relatively easy task, since all three factors point toward exclusion of the evidence. While the conduct of the police was not egregious, it did involve taking a risk that the Applicant’s Charter rights were being breached, a risk that could have been avoided. The circumstances following the seizure of the devices were no longer exigent, and a search warrant could easily have been obtained. The impact on the Charter-protected interests of the Applicant was extreme. The evidence sought to be excluded is, variously, inadmissible, of questionable admissibility, or of little value to the Crown’s case as a whole. The points that the Crown seeks to make with much of this evidence can, largely if not entirely, be made through other evidence that was not obtained through a breach of the Applicant’s Charter rights.

[162] In short, the repute of the administration of justice would be better protected by excluding this evidence rather than admitting it. Exclusion of this marginal and questionable evidence will not exact too great a toll on the truth-seeking goal of the trial.

[163] I recognize that these are extremely serious charges. However, as has been pointed out by our Chief Justice and Charron J. in Grant, that cuts both ways. In a case of such importance as this, which will be subjected to so much public scrutiny, it is all the more important for the repute of the administration of justice to ensure that the trial proceeds based on evidence that is clearly admissible and was lawfully obtained.

[164] Accordingly, the information obtained through a search of the Applicant’s laptop and Blackberry is to be excluded, pursuant to s. 24(2) of the Charter. As in Little, this would not preclude the Crown from leading evidence as to the phone number for the device that was obtained from the Blackberry.

[165] It follows from this ruling that the information obtained from the search of the 20 gig. Hitachi hard drive is rendered irrelevant, since its only purpose was to establish a baseline for the Applicant’s internet search activities, so as to inform the analysis of the information gleaned from the laptop. It is, therefore, inadmissible on that basis.

"T. A. Heeney J."

Mr. Justice T. A. Heeney

Released: January 31, 2012

COURT FILE NO.: 10856

DATE: 2012-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL THOMAS CHRISTOPHER STEPHEN RAFFERTY

REASONS FOR JUDGMENT: Application D-4

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 648 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE T. A. HEENEY, SUPERIOR COURT OF JUSTICE, DATED DECEMBER 16, 2010

Heeney J.

Released: January 31, 2012