ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-10000633-0000
DATE: 2014/04/24
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ERIC ST. MARTIN
Jennifer Gibson, for the Crown
Adam Forbes, for the Defendant
HEARD: February 24 – 28, 2014
Voir Dire Ruling
A.J. O’MARRA J.:
[1] The applicant, Eric St. Martin, seeks an order from the court declaring that his s.8 rights under the Charter of Rights and Freedoms have been violated and for an order excluding all evidence obtained as a result pursuant to s.24(2) of the Charter.
[2] On March 6, 2012 the police searched a laptop computer at the Toronto Public Library, the property of Mr. St. Martin in which were discovered images identified as child pornography. At the time of his arrest, other electronic equipment in his possession, a tablet computer, external hard drive, 3 USB keys and a cellular phone were seized by the police. Subsequently, a search warrant was obtained. All of the seized items were forensically examined and revealed a number of images and videos categorized as child pornography.
[3] On February 28, 2014 the application was dismissed and I indicated reasons would be issued at a later date. These are those reasons.
[4] It is common ground that the initial search of the laptop computer was a warrantless search and therefore presumptively unreasonable. The issue on the application was whether the search was on consent.
[5] The Crown asserts that the search of the laptop computer was conducted pursuant to a voluntary consent given by the applicant with the full knowledge of any potential consequences thereof. The applicant contends that even though he consented to the police looking at the content of his computer, it was not an informed consent, and as such he did not waive his s.8 right against the invasion of his privacy.
[6] In R. v. Wills, 1992 2780 (ON CA), [1992] O.J. No. 294 it was noted at paras. 49-50 that where the Crown contends that an accused has “yielded a constitutional right in the course of a police investigation” a stringent test is to be applied to ensure the fair treatment of individuals who come into contact with police through the criminal process. It was observed that it is probably more important to insist on a high waiver standard at the investigative stage where there is no judicial arbiter or structural setting to control the process, and sometimes no counsel to advise the individual of his or her rights.
[7] The now well-known test as to whether a valid and informed consent has been made is set out in Wills, supra, at para. 69:
The application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
i) There was a consent, express or implied;
ii) That the giver of the consent had the authority to give the consent in question;
iii) The consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
iv) The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
v) The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
vi) The giver of the consent was aware of the potential consequences of giving the consent.
Overview of the Circumstances
[8] On Tuesday, March 6, 2012 a male patron of the Toronto Public Library located at 269 Gerrard Street East observed another male, later identified as the applicant, viewing images of naked girls, approximately 10 to 13 years old on a small laptop computer in the library. He informed a security officer, and in turn the Toronto Police Service was contacted.
[9] Initially, three police officers arrived at the library, Police Constables Michael Tattersall, Kristophen Lobo and Peter Roberts, all primary response officers in uniform.
[10] Constable Tattersall testified that he was dispatched at approximately 12:43 p.m. and arrived at the library a few minutes later. There he met Barry Gray, the library manager, who directed him to a security officer, Antonio Fernandez, who in turn told him he had been approached by a male, David Garcia, who observed another patron to be looking at images of nude girls. Constable Tattersall spoke to Mr. Garcia briefly and heard that the images he saw the male looking at were those of nude girls approximately 10 years of age.
[11] Mr. Eric St. Martin, still in the library, was pointed out as the male who had been looking at the images. Constables Tattersall and Roberts approached him on the second floor of the library. Constable Tattersall testified he told Mr. St. Martin that they were investigating an allegation that he had been looking at images of 10 year old females in various stages of undress on a computer and that he was being investigated for the possible possession of child pornography.
[12] Mr. St. Martin asked if they could speak in a more private area of the library. The security officer, Fernandez, suggested a nearby conference room. He assisted by unlocking it for the officer and Mr. St. Martin. Constable Tattersall asked the applicant to identify himself. Mr. St. Martin did so verbally and presented a health card. Constable Lobo, who had been in attendance when Mr. St. Martin was first approached, left to check Mr. St. Martin’s identification through the computer in his cruiser. Constable Roberts left to take a statement from the witness David Garcia and to obtain information from the library manager, Barry Gray, about library policy.
[13] Constable Tattersall testified, he asked Mr. St. Martin if he had a laptop computer. Mr. St. Martin removed one from his backpack. He asked Mr. St. Martin if he had been looking at pictures of young girls around 10 to 12 years old to which Mr. St. Martin said that he had been. He was asked what sites he had been looking at. Mr. St. Martin replied that he was not sure, but the information would be on his computer.
[14] Constable Tattersall testified that at that point he cautioned Mr. St. Martin he was being investigated for child pornography and asked permission to search his laptop computer. The officer stated that he wrote down the questions that he asked Mr. St. Martin and the answers given by him “verbatim, as best I could” in his notebook. His notes of the questions and answers read as follows:
Q: I’ll be looking through your computer in respect to images/videos that would afford me evidence and reasonable grounds to believe you are in possession of child pornography. Do you understand that?
A: Yes, you want to look on my computer, that’s ok.
Q: You understand that I actively will be looking for child pornography contained on your computer?
A: Yes, it’s ok.
Q: I want you to understand that your consent for me relates to the investigation of child pornography and any evidence found may result in criminal proceedings against you.
A: Yes, you can search.
Q: I want to be clear that if I find any images of child pornography you will be charged and arrested. Do you understand?
A: Yes.
Q: I want you to know that providing of this consent that you may consult with a lawyer or legal counsel of your choice. Do you understand?
A: Yes that I can talk to a lawyer if I want to.
Q: Do you wish to contact a lawyer prior to my search?
A: No.
Q: I want you to understand that you can remove your consent at any time prior to the completion of my search. Do you understand?
A: Yes.
Q: Do you allow me consent to look at your computer?
A: Yeah, go ahead.
Q: You understand that you can stop this at any time and leave?
A: Yes.
[15] Constable Tattersall acknowledged that he could not remember if any other police officer was in the room at the time he asked Mr. St. Martin for his consent. Further, he did not ask Mr. St. Martin to sign or initial his notes to acknowledge the responses he had given to the questions asked.
[16] Constable Tattersall knew of no standard forms available to him to obtain the consent from a suspect. There is no evidence that there is a standard consent waiver used by the Toronto Police Service, although some units, like the Child Exploitation Unit have developed forms for their own use. Constable Tattersall testified that as a uniformed patrol officer, he would not have such forms readily available to him.
[17] The laptop computer was password protected and Mr. St. Martin entered the password to permit the officer access. Constable Tattersall opened the history of internet search in the computer and observed the titles of eight websites with names such as “juniortease.info, top.realjailbaitgirls.com, top.tinylittlegf.com. Next he opened a folder entitled “My Pictures” and sub-folders within it and observed several pictures of girls who appeared to be ages 7 to 12 in sexually suggestive poses. Constable Tattersall, unsure as to whether it was child pornography, contacted his supervisor, Sergeant Charles Lee, and asked him to attend the library.
[18] Sergeant Lee on arrival attended to the conference room where he met Constable Tattersall and the applicant. He testified he spoke with Constable Tattersall to ensure that the officer had obtained Mr. St. Martin’s consent to look at his computer. Constable Tattersall told him the applicant had given his consent and he knew why they were there at the library with him.
[19] The laptop at that point had “timed out” and Sergeant Lee asked Mr. St. Martin if he would enter his password again, to which he complied. Sergeant Lee looked at the pictures that had been opened by Sergeant Tattersall and directed the officer to call the Child Exploitation Unit of the TPS to ask what they should be looking with respect to the images at to determine whether it was child pornography.
[20] In a file labeled “Personal Notes 2012” there were several photographs that appeared to meet the definition of child pornography described as follows:
“59-2”, female white, 13 to 14 years old, shows her lying on her back on a couch, white in colour, undeveloped breasts, no pubic hair.
“133x100-734443”, female white, approx. 12 to 14 years old, lying down on her back, wearing what appears to be a blue/yellow/white cheerleader outfit, blond hair, skirt up to her stomach, male adult wearing glasses performing oral sex and finger penetration on girl.
“177-2”, female white, approx. 12 to 14 years old, lying on her back with two males involved. One male above her head holding onto her waist/hip area with both hands. Second male having intercourse. Minimal breasts on girl and no pubic hair.
“179-2”, female white, approx. 10 to 12 years of age, lying on her back with male white adult penetration on top. Wearing purple top, undeveloped breast exposed and pubic hair on genital area.
[21] Constable Roberts had returned to the conference room and spoke with Mr. St. Martin briefly to confirm where he lived. Mr. St. Martin told him he was living at the Maxwell Megan Shelter, run by the Salvation Army. Constable Roberts testified it struck as odd that Mr. St. Martin said he was homeless yet he was planning on buying a house and marrying a woman he met online. He described some of Mr. St. Martin’s comments as “rambling”. He made a note in his notebook that Mr. St. Martin was possibly “EDP”, an emotionally disturbed person.
[22] Constable Tattersall and Sergeant Lee, both of whom said that in their duties they had dealt with many persons with mental health issues, but made no similar observation of Mr. St. Martin.
[23] Sergeant Lee on seeing the images directed that Mr. St. Martin be arrested for possession of child pornography. Constable Roberts placed Mr. St. Martin under arrest and provided him with a caution and read him his rights to counsel. Mr. St. Martin indicated he wished to speak with counsel. On arrival at the division, after being paraded before the booking sergeant, he was given the opportunity to speak to duty counsel.
[24] Several hours later Detective Constables Amy Davey and James Fleming of the Child Exploitation Unit conducted an interview of Mr. St. Martin that lasted approximately 45 minutes. The interview was videotaped, and transcribed, entered as Exhibits 6A and 6B respectively.
[25] Detective Constable Davey candidly acknowledged that a fair characterization of St. Martin was that he had mental health issues. He had been hard to keep on track and focused on the questions asked during the interview. Some of his answers tended to be rambling responses.
[26] Mr. St. Martin testified he had been in the library that morning and he had accessed the library public internet in order to browse the web for modelling sites. When he was on the second floor of the library several police officers approached him. One, identified as Constable Tattersall said that they wanted to speak to him, asked him to identify himself and to go with them to speak privately in another room.
[27] In the conference room, Constable Tattersall asked him what he had been doing earlier that day and if he had a laptop with him. He told the officers he had a laptop and he had been looking at modelling sites for young women. When he was asked to show the officer what he had been looking at he pulled the laptop from his jacket and gave it to the officer. While he was speaking with Constable Tattersall he observed Constable Roberts standing at the door with Constable Lobo. Constable Tattersall opened the laptop, but because it was password protected he asked Mr. St. Martin if he would put the password in for him, which he did.
[28] Mr. St. Martin testified that he tried to show the officer what he had been looking at but the officer would not let him. He believed Sergeant Lee came after the second time the laptop “timed out” so he entered the password for the officer.
[29] Mr. St. Martin testified that Constable Tattersall did not tell him they were investigating possible possession of child pornography before he entered the password. However, he believed that they mentioned child pornography before he entered the password the second time when the computer “timed out”.
[30] Mr. St. Martin asserts he was not asked if he wanted to consult a lawyer. He said that he was not asked before entering the password the first time, but he was asked before he entered the password the second time. When he was arrested and advised his rights to counsel then he asked to speak to a lawyer. He confirmed he was given the opportunity later on arrival at the division to speak with duty counsel.
[31] In cross-examination he acknowledged he had wanted the police to look at the sites he had been looking at because he thought there was nothing wrong with them. In his testimony he referenced seeing someone on the site he thought was a friend of his ex-girlfriend. Just as his answers to the questions asked when he was being interviewed, his answers in cross-examination were interspersed with non sequiturs.
[32] The position of the Applicant is that on the evidence of Constable Tattersall and the putative series of questions and answers noted in his notebook he provided neither an informed nor valid waiver of his rights. He acknowledged that the first three criteria set out in Mills were met on Constable Tattersall’s and his evidence. He had authority to give consent to look at his laptop and his consent was voluntary.
[33] Although Mr. St. Martin provided consent for Constable Tattersall to search his laptop, he was: 1) not informed by the officer why he wanted to search his laptop, that he was conducting an investigation into possible possession of child pornography; 2) he was not advised as to the potential consequences of giving consent to the officer to look at the contents of his computer; 3) he was not told he could contact a lawyer, including access to free and immediate legal advice from the Ontario Legal Aid “Hotline”.
[34] Alternatively, the Applicant argues Constable Tattersall’s evidence should be rejected as having been fabricated. He contends the officer tried to mislead the Court by making up the series of questions and answers. The Court should consider his evidence suspect because he did nothing to corroborate or verify what he had done i