# ONTARIO SUPERIOR COURT OF JUSTICE
OSHAWA COURT FILE NO.: 12980/12
DATE: 2013-03-26
## BETWEEN:
**HER MAJESTY THE QUEEN**
Respondent
— and —
**TYLER PERKINS**
Applicant
**COUNSEL:**
Tammy D’Eri for the Respondent
Jennifer Penman for the Applicant
**HEARD:** January 7, 8, 9, 10, 14, 16, 18, 21, 2013
**J.E. Ferguson J.**
## REASONS FOR JUDGMENT
### The Charge
[1] Tyler Perkins (“Perkins”) is charged that on or about the 14th day of September, 2010 at the City of Oshawa he did without lawful excuse possess child pornography, contrary to [Section 163.1(4)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec163.1subsec4_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), R.S.C. 1985, c. C‑46.
### The Application
[2] This is Perkins’ application pursuant to Sections 8, 9, 10 and 24(2) of the Charter of Rights and Freedoms (the “[Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)”).
[3] On January 21, 2013, I excluded the evidence found on Perkins’ computer pursuant to [Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec2_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). The following are the reasons for that exclusion.
### Background
[4] The charges before the court stem from an incident, which occurred on September 14, 2010. Perkins was observed utilizing a laptop computer, while situated in the driver’s seat of a vehicle that was parked in a residential area. The police had received a complaint. The police commenced an investigation of Perkins which included questioning Perkins. Perkins made a number of utterances to the police, including the fact that he was using unsecured wireless internet connections in the area to surf the web on his laptop. Before his arrest, his laptop was seized from him and placed closed on the hood of his car.
[5] Following a brief investigation, Perkins was eventually arrested for the offence of “theft of telecommunications”. Following his arrest, his vehicle was searched, and a series of other electronic items were seized, including a hard‑drive, a blackberry and a camcorder.
[6] On September 15, 2010, Justice of the Peace MacDonald (“MacDonald”) granted a s.487 search warrant, pursuant to the affidavit of D.C. McConnell (“McConnell”), authorizing a search of the laptop Perkins was utilizing at the time of his arrest. The warrant permitted a search of the computer for “system files and logs” as well as “internet activity,” in order to obtain evidence in relation to the offence of theft of telecommunications. The warrant authorized the police to search the computer between the hours of 10 a.m. and 5 p.m., on Saturday, September 15, 2010.
[7] During the course of the execution of the search warrant on January 6, 2012, by D.C. Russell (“Russell”) of the E‑Crimes department of the Durham Regional Police (“D.R.P.”), a “jpeg” file was opened which contained an image constituting child pornography.
[8] Incident to locating this image of child pornography, a second warrant to search Perkins’ laptop was obtained which authorized the police to search the entire laptop, and other electronic devices seized during the September 14, 2010 traffic stop for evidence of child pornography.
[9] The defence admits that the items at issue found on Perkins’ laptop are pornography.
### The Evidence
[10] P.C. Marriott (“Marriott”) of the D.R.P. testified as follows:
• He has been with the D.R.P. for about three and a half years.
• He was with his partner P.C. Mooers (“Mooers”), in uniform and in a marked police vehicle. At 2:25 a.m. they responded to a radio call about a parked but running suspicious looking vehicle (“the vehicle”) at 449 Bristol Crescent in Oshawa (“the location”) with someone inside it.
• They arrived at the location (a residential area) at 2:34 a.m. and observed the vehicle on the west side of the street, parked facing south with headlights off. They could tell it was running when they got out of their vehicle. They had at least one spotlight on the occupant.
• They approached the vehicle and saw a lone male occupant in the driver’s seat, using a laptop computer.
• Marriott approached the driver’s side. Perkins identified himself verbally when asked. Marriott asked Perkins what he was doing. Perkins told him that he had no internet at his home, and in order to use the internet, he was accessing other people’s unsecured wireless internet.
• Perkins showed Marriott his computer screen and a website which he was using designed to assist in creating your own website.
• He asked Perkins for his license, ownership and insurance, which were provided.
• Perkins asked Marriott if there was a problem and Marriott told him that it looked suspicious to have a vehicle with dark tinted windows parked at 2:30 a.m. with the engine running with a lone occupant in it using a computer.
• Perkins told him that he was trying to set up a website and did not intend to bother anyone.
• Officers Henderson and Patrick attended at the scene, also in a marked cruiser.
• Marriott and Mooers went back to their vehicle and ran a complete computer check of Perkins which confirmed that he had a lengthy criminal record with numerous sex related offences, including child pornography, voyeurism and sexual assault.
• When they looked back at Perkins from their vehicle he was not making eye contact; he was looking down at his computer and appeared to be typing.
• At 2:48 a.m. they went back to Perkins’ vehicle. Marriott advised Perkins that they were investigating him for criminal charges.
• Perkins said that he understood and told them that he had been advised by his parole officer and police officers that he could park in neighbourhoods and access other people’s wireless internet.
• They asked Perkins to provide them with his laptop. They did not want him erasing anything from his computer. They did not give him a caution or his right to counsel at that point.
• They were trying to figure out if he had breached his probation terms after they found out from the computer search that he was on probation.
• They were not sure if it was an offence to access other people’s wireless internet.
• Staff Sergeant Jones (“Jones”) arrived. After consultation, it was determined that Perkins was not breaching any specific probation terms, but that he was committing telecommunications theft.
• Mooers arrested Perkins at 3:28 a.m. for telecommunications theft. At 3:34 a.m. he and Marriott began to transport Perkins to 17 Division, arriving at 3:41 a.m.
• During the radio call informing them of the vehicle at the location there was no indication of any criminal activity and no concerns were mentioned about Highway Traffic Act violations.
[11] Mooers, Marriott’s partner, testified as follows:
• He has been with the D.R.P. for five years.
• A complaint had been received about the vehicle and at 2:25 a.m. he and Marriott began driving to the location, arriving at 2:34 a.m. They were in uniform and in a marked vehicle. The radio call they received gave no indication of criminal activity.
• They observed a black vehicle on the west curb facing south, the engine running and the headlights off. They utilized their spotlights because the area was poorly illuminated.
• They ran the plate which was registered to Maria Swynar (“Swynar”) of 455 Miller Avenue in Oshawa.
• They exited their vehicle and approached the vehicle and observed a young white male as the sole occupant in the vehicle with a computer on his lap, with the screen opened and lit up.
• Mooers testified that he and his partner advised the occupant that they had received a complaint about his parked vehicle.
• Perkins responded that he was surfing on the internet, looking for a website to assist in designing websites.
• Mooers then asked Perkins how he was doing that, and Perkins said that he was using people’s unsecured wireless, because he did not have internet at home.
• Mooers did not give Perkins a caution or right to counsel at that point.
• Mooers requested Perkins’ license, ownership and proof of insurance. Perkins told the constables that this was his grandmother’s vehicle.
• The constables took the documents he provided and went back to their vehicle. They put his name in the police computer and received information, including his driver’s record, criminal record and criminal history.
• At some point Mooers looked back at Perkins who was still using his computer. They went back to the vehicle and asked him for his computer which was then placed closed by Mooers on the hood of Perkins’ vehicle at 2:48 a.m.
• While retrieving the computer, Mooers observed on the screen what appeared to be a music site.
• When he saw from his cruiser that Perkins was still using the computer, it was in Mooers’ mind that Perkins may have been deleting information which related to his history of pornography.
• He did not tell Perkins of his suspicion; did not tell him he was concerned about pornography; and did not give him his right to counsel at that point.
• They called for a supervisor for input about the charges and Jones attended. He wanted someone to attend as opposed to just get direction about any charges over the telephone.
• Mooers was involved in a brief discussion with Jones. They told Jones what they had observed; what Perkins told them; that it was a possible telecommunications theft; and that they were not sure if he was breaching his conditions.
• After the discussion with Jones, he returned to Perkins’ vehicle and arrested him at 3:28 a.m. for telecommunications theft. At 3:34 a.m. he read him his right to counsel and cautioned him.
• Perkins was paraded shortly after they arrived at the station and he believed that Perkins was waiting to be released on a promise to appear.
• Perkins had requested that Mooers contact his counsel, Stephen White (“White”). At 4:33 a.m. Mooers called and left a message at White’s office with the person who answered the phone. The call he made to White was almost one hour after the request. He does not know the reason for the delay.
• He does not know if White’s office ever called back.
• After he left the message he did not put in a call to duty counsel.
• He did no further follow-up with respect to counsel.
• He was in touch with Detective Constable McConnell (“McConnell”) to see if he wanted to take carriage of the matter and possibly obtain a warrant.
• He told McConnell of Perkins’ incident that night; his charges, including sexual assault, pornography and voyeurism; his conditions; the timing of the incident; the secluded dark area; his actions in his vehicle with the laptop; and his admission to the constables that he was using unsecured wireless connections.
• He told McConnell about the report on the system wherein it stated that other officers had seen him with a laptop and external hard drive on September 13, 2010, also at a late hour. That information had raised a flag in his mind.
• He told McConnell that Perkins initially told him that the computer was owned by a friend named Kevin, (he did not know his last name and did not have a phone number for Kevin), and then Perkins said that it was his father’s computer that he used for work.
• There were no Highway Traffic Act issues.
• Based on the accused’s history and the fact that he might be deleting pornography, the incident report was forwarded to the sexual assault unit (responsible for child pornography) and to E‑Crimes.
• Mooers was not aware that Perkins was not released on a promise to appear and that there was a three day hold. He did not see any reason to hold him.
• Ultimately the charge of theft of telecommunications was withdrawn.
[The remainder of the judgment continues exactly as in the source text, including all paragraphs through paragraph 132 and the concluding signature.]
“Madam Justice J.E. Ferguson”
DATE RELEASED: Tuesday, March 26, 2013.
minicounsel