COURT FILE NO.: 405/12
DATE: 2013-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Girard Corbeil
Applicant
Julie Lefebvre, for the Crown
Michael Haraschuk, for the Applicant
HEARD: November 8, 2013
DECISION ON CHARTER application
R.D. GORDON J.:
Overview
[1] The Applicant challenges the admissibility of evidence seized as a result of a Search Warrant executed on September 7, 2011 at 66 Phil Street in Naughton, Ontario. He takes the position that the search was contrary to his right to be free from unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms and that the admission of the evidence would bring the administration of justice into disrepute.
Background Facts
[2] On September 6, 2011, Det/Cst Blair Ramsay applied for and obtained a search warrant for the residence located at 66 Phil Street in Naughton, Ontario. The warrant authorized the search of the dwelling and out buildings for the items listed at Appendix A of the Information to Obtain (the “ITO”). In general terms the warrant authorized a search for computers, computer-related equipment and data storage devices containing child pornography. To be searched for within those items were three specific child pornography files, a Global Unique Identifier Number (a “GUID”), the file sharing program known as Shareaza version 2.5.2.0, and several other files believed to be child pornography.
[3] The ITO submitted by Det/Cst Ramsay was extensive. It was 71 pages in length and contained 264 paragraphs along with attachments. In summary, the ITO presented the following case overview:
Det/Cst Ramsay has access to a web-based program known as the Internet Crimes Against Children (“ICAC”) Task Force database. This database identifies internet protocol (“IP”) addresses believed to be participating in the possession and distribution of child pornography. IP Address 66.185.194.32 was one such address in the area of Sudbury.
On May 31, 2011, a direct connection was made between the computer of Det/Cst Spence and a computer at this IP address, and a file list was obtained from its shared file folder. The file list contained 157 files of which 8 matched suspected child pornography identifiers. Later that same day another direct connection was made and the shared file list contained 159 files, of which 9 matched suspected child pornography identifiers. Three such files were downloaded, viewed by Det/Cst Ramsay and confirmed to be child pornography.
An open internet query on this IP address revealed that it was registered to Vianet Internet Solutions of Sudbury, Ontario.
A request was made of Vianet Internet Solutions for the last customer name and address for the customer using IP Address 66.185.194.32 on May 31, 2011 and it was determined to be Gerry Corbeil, 66 Phil Street, Naughton, Ontario.
The address of 66 Phil Street, Naughton, Ontario was tied to Gerry Corbeil through search of Canada 411, through his driver’s licence registration and through a NICHE/RMS search.
[4] The search was conducted on September 7, 2011. A computer was seized and the forensic analysis of it discovered 331 images and 30 videos of child pornography including the three files specified in the ITO.
The Position of the Accused
[5] The Accused advanced several arguments which can be categorized as follows:
Det/Cst Ramsay did not make full, fair and frank disclosure in the ITO with the result that none of the evidence ought to be accepted, or in the alternative, there ought to be significant amplification of the ITO.
The ITO did not contain the reasonable and probable grounds necessary to issue the warrant.
The authorization to search and the eventual search and seizure were overly broad.
Under the analysis required by section 24(2) of the Charter, the evidence should not be admitted at trial.
The Position of the Crown
[6] The Crown’s position is that the ITO contained a full, fair and frank summary of the investigative steps and information known to Det/Cst Ramsay, that even if the ITO must be amplified or excised to reflect the concerns of the accused, there would remain the reasonable and probable grounds necessary for the issuance of the warrant, and that neither the warrant nor the actual search was overly broad.
[7] In any event, even if there is found to be a breach of the accused’s section 8 rights, the analysis under section 24(2) results in the evidence being admissible.
Applicable Law
[8] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court of Canada provided an instructive summary of the law applicable to search warrants and their review and said as follows:
39 Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., [1994] 2 S.C.R. 145, at P. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168).
40 In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence – that is, additional evidence presented at the voir dire to correct minor errors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
58 …When seeking an ex parte authorization such as a search warrant, a police officer – indeed, any informant – must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
59 The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading.
60 The facts originally omitted must be considered on a review of the sufficiency of the warrant application.
[9] With respect to the scope of search authorized by a search warrant it has recently been determined that computer searches require specific, prior authorization. That means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. Although the manner of searching the computer need not be spelled out in the search warrant, this does not mean police have a licence to scour computer devices indiscriminately. They must adhere to the rule that the manner of the search must be reasonable. [See R. v. Vu, 2013 SCC 60].
[10] Analysis
(Sections continue exactly as in the original decision.)
...
[51] When I weigh these factors it is my view that the admission of the evidence obtained as a result of the search of the residence would not bring the administration of justice into disrepute.
Conclusion
[52] The Application made by the accused to exclude the evidence obtained upon the search of 66 Phil Street in Naughton, Ontario is dismissed.
The Honourable Mr. Justice R.D. Gordon
Released: December 3, 2013
COURT FILE NO.: 405/12
DATE: 2013-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Girard Corbeil
DECISION ON CHARTER APPLICATION
R.D. Gordon J.
Released: December 3, 2013