ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 505-13
DATE: 2014-03-05
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Darrell Suchoplas
Applicant
Julie Y. Lefebvre, for the Crown
Michael J. Venturi, for the Applicant
HEARD: February 24, 2014
DECISION ON APPLICATION
del frate j.:
[1] The applicant seeks an order excluding the evidence seized as a result of the search warrant executed at his residence on June 14, 2012, on the basis that there was insufficient evidence presented to the issuing justice, and on the basis that there was no full frank and fair disclosure on the Information to Obtain (“ITO”).
[2] The applicant stands charged of possession of child pornography contrary to section 163.1(4), accessing child pornography contrary to section 163.1(4.1) and possession of child pornography for the purpose of making it available contrary to section 163.1(3) of the Criminal Code of Canada.
Background
[3] In November 2011, Detective Constable Blair Ramsay initiated an investigation into Internet Protocol address (“IP address”) 67.204.248.5, while executing his duties as an officer of the Greater Sudbury Police Service, Cybercrime Unit. Using the program “EPhex”, a direct connection with that particular address, he was able to view and download files determined to consist of child pornography.
[4] With the assistance of Constable Boyd, it was determined that the IP address was owned by EastLink Communications situated in Sudbury, Ontario. A production order for the name and address as well as Internet Protocol Logs for that particular address were obtained. It disclosed that the address was assigned to Darrell Suchoplas of 24 Henry Street in Whitefish, Ontario.
[5] Further monitoring of the IP address took place until February of 2012, during which time the IP addressed had been observed on the Gnutella network in possession of child pornography files. The ITO confirmed that the Globally Unique Identifier (“GUID”) assigned by Limewire was the same throughout the investigation, indicating that the same computer had been used to access the files.
[6] The ITO consists of 57 pages and 307 paragraphs. It outlines what items are to be searched and what the forensic analysis on the items found would be. It goes on to describe the way in which systems and programs can be accessed to determine whether certain IP addresses are involved in the possession and distribution of child pornography.
[7] The ITO affidavit describes the terms of internet providers, defines child pornography, and provides a description of the Gnutella Network which indicates how others can have access and file share.
[8] The description of the sources of information and computer protocols constitutes 14 pages of the affidavit and 43 paragraphs.
[9] The affidavit also describes the investigation and the grounds for believing that an offence has been committed pursuant to the officer’s experience and training as a police officer working in this field.
[10] The officer details how files can be moved from the internet onto the computer hard drive or how they may be filed under separate folders to prevent access by someone else. Even if the files are deleted, forensic analysis can retrieve information that may have been deleted. The officer goes on to describe in detail how such information can be retrieved.
[11] The officer outlines how some child pornography collectors store this information, basing this opinion on his experience as an internet child exploitation investigator. To emphasize his point, the officer refers to reported court decisions.
[12] Armed with all of this information, he applied for a telewarrant since the local justices of the peace were not available. The telewarrant was granted and it was executed on June 14, 2012.
[13] The seizure and analysis of the computer discovered 213 images, six videos of child pornography, 139 images of child nudity and 708 images of other relevant material.
Position of the Applicant
[14] The evidence seized as a result of the execution of the search warrant should be excluded since the information relied upon to obtain the warrant was stale. The initial observations were made in November 2011 and February 2012. The warrant itself was issued on June 13, 2012. Much could have happened between the initial observations and June 13, 2012. There must have been a credible probability that the evidence was still on the property at the time that the warrant was issued.
[15] In the applicant’s view, the failure to provide updated information is not consistent with the requirement placed before the issuing justice to provide “full, frank and fair” disclosure, especially when one considers this is an ex parte process.
[16] Most importantly however, the applicant submits that the ITO is deficient in that it does not comply with the requirements enunciated in R. v. Ward, 2012 ONCA 660, where the Ontario Court of Appeal discussed the “extensive technical evidence” that was referred to in that particular ITO (para. 114).
[17] The applicant submits that no extensive technical evidence was provided in this particular case. At best, the ITO discloses a “possibility”, rather than a reasonable probability, that it would have been required.
[18] The police executed a warrant to search the applicant’s residence, attached to which there are significant privacy interests. As such, the evidence seized should be excluded under section 24(2) of the Charter, taking into account those principles outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Position of the Crown
[19] The Crown submits that there is more than sufficient evidence to establish reasonable grounds that an unknown person using IP address 67.204.248.5 between the 14th and the 24th of November, 2011, accessed, possessed and made available child pornography. First, Constable Ramsay was able to access the information. He proceeded to identify the IP address and subsequently the applicant. He was able to view and download the child pornography files. The officer concluded from his experience that these files met the definition of child pornography and further, that in his view, even if the files had been deleted, with proper analyses, the information contained on the hard file could be retrieved. Accordingly, even if his opinion of what child pornographers do with files is inaccurate, there is sufficient evidence to establish that someone at this particular address was involved with child pornography.
[20] Finally, the Crown submits that considering the actions of the investigating officers, the evidence that was found, and applying the Grant principles, the administration of justice would not be in disrepute by not excluding such evidence.
The Law
[21] Both counsel agree that in undertaking such a challenge, the onus rests with the applicant on a balance of probabilities. Both counsel also agree that the analysis must consider the statements made in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.CC. (3d) 161, and R. v. Araujo, 2000 SCC 65, 149 C.C.C. (3d) 449.
[22] In Garofoli, the Supreme Court of Canada outlines the role of a reviewing court and states at para. 56:
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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[23] In Araujo, at para. 29, the Supreme Court of Canada noted:
The authorizing justice must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard. All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis. Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests. The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant.
Discussion
[24] The applicant’s submission on full, frank and fair disclosure is not that the information was misleading. Rather, the applicant submits that the information was not as recent as it could have been and not updated. Accordingly, he was asking the issuing justice to grant a warrant on information which may no longer have been valid.
[25] In my view, that submission fails since even though the information may not have been as current as it could have been, that information would still be imprinted on that particular computer even if it were deleted. If anything, not updating the information would have worked to the applicant’s benefit if in fact, the applicant had somehow disposed of that particular computer.
[26] At no time in the ITO does the officer attempt to mislead or misinterpret any of the information that he had uncovered. He describes in detail what he did and further describes from his knowledge and experience how computers and these particular websites operate. Likewise, he expressed his opinion as to how collectors of child pornography tend to store their files.
[27] The officer’s personal experiences and knowledge are factors that the issuing justice can consider in determining whether to issue a warrant: Ward at para. 115.
[28] Even if the officer’s experiences and opinions were excised from the record, there would still remain the real evidence that the computer from which the officer was able to access the child pornography was situated at the residence of the applicant.
[29] The additional argument that the ITO failed to provide “extensive technical evidence” is also not accepted. The ITO gives considerable information as to how files can be observed and information transferred from one computer to another. Further, it discloses how the various networks operate and how automated computer programs such as E-Phex, Limewire, Bearshare, Shareaza, can be accessed to exchange information. The ITO further discloses how, with the appropriate technology, deleted information can be retrieved from the hard drive.
[30] It must be remembered that the issuing justice requires “reasonable grounds to believe that evidence related to the offences would be found in the searches” (Ward, para. 111). The fact that the officer was able to view and download pornographic materials from that IP address in November 2011, and the fact that the information was still available in February 2012, could make a justice infer and conclude that “there was a reasonable probability that child pornography had been accessed and stored on the computer” (Ward, para. 113).
[31] The reasoning in Ward was most recently reaffirmed in R. v. Sadikov, 2014 ONCA 72. I conclude that, upon reviewing the ITO in its entirety, the issuing justice had sufficient information to conclude that there were reasonable grounds to issue the warrant.
[32] Even if I were wrong in that conclusion, I would not have excluded the evidence pursuant to Grant and most recently in Sadikov. The officers acted in good faith. They immediately informed the applicant of the purpose of their visit and proceeded to search and seize the computer in a reasonable fashion. There is no evidence that any damage was occasioned to the residence. No threats or violence were exerted.
[33] The evidence that was obtained was important in that it is crucial to the Crown’s case. It is not conscripted and is quite reliable. The charges are very serious and it would be in society’s interest to have the matter adjudicated on its merits. In my view, the admission of such evidence would not lead the administration of justice into disrepute.
[34] Accordingly, the application is dismissed and the evidence seized as a result of the execution of the search warrant is not excluded.
The Honourable Mr. Justice R.G.S. Del Frate
Released: March 5, 2014
COURT FILE NO.: 505-13
DATE: 2014-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Darrell Suchoplas
Applicant
dECISION ON APPLICATION
Del Frate J.
Released: March 5, 2014