ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CJ 7875

DATE: 2014-08-07

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Paul Sop

Applicant

Cynthia Jennison, for the Crown

Boris Bytensky, for the Applicant

HEARD: June 23, 2014

The Honourable Justice James W. Sloan

reasons for judgment

FACTUAL BACKGROUND

[1] The Applicant stands charged with two counts of accessing child pornography and one of possession of child pornography.

[2] The accessing charges relate to events that allegedly occurred on or about November 15 and December 15 of 2010.

[3] The possession charge relates to February 1, 2012 the date the search warrant was executed at the Applicant's residence.

[4] Prior to May 2011 a company named AZOV Films was involved in the sale and distribution of something labeled “naturist” videos.

[5] On or about May 1, 2011 members of the Toronto Police Service and others, none of whom were members of the Waterloo Regional Police Service executed a series of search warrants at locations in the Greater Toronto Area in connection with their investigation of AZOV.

[6] In addition to seizing computers storage devices, movies and videos the police also seized AZOV’s business records.

[7] Part of this information included information relating to purchasers such as the Applicant, including what purchases they made, their names, addresses, phone numbers, IP addresses, usernames, passwords and credit card information as well as all titles of items they allegedly purchased from AZOV.

[8] The above information was compiled into a series of investigative files and sent to various police forces. The information on the Applicant was sent to the Waterloo Regional Police Service.

[9] In addition, the Toronto AZOV investigators obtained the subscriber information of the various purchasers through their Internet Service Providers (ISP) and forwarded this information on to various local police forces. The Toronto police obtained this information by means of a Legal Enforcement Request, (LER) which is essentially a letter from the police to an ISP asking for the information.

Waterloo Regional Police Service

[10] Detective Illes is part of a Major Case Branch within the policing community which deals with Internet child exploitation. It is run by the OPP, funded by the Ontario Government and information obtained by it is shared with other police forces. It takes part in special projects on a provincial, national and international level.

[11] Illes is involved with the Ontario Provincial Strategy Combating Internet Child Exploitation sometimes referred to as ICE investigations. This is not a separate police force. It appears to be made up of officers from different police forces throughout Ontario. Illes is paid by the Waterloo region however Detective Rhab who assisted him on this case, is paid by the Province of Ontario through something called the Provincial Strategy.

[12] In November of 2011, Illes heard from the Toronto Police Services about a project called Spade. He was told that information they obtained was being disseminated to police forces throughout Canada and internationally. He subsequently received information about the Applicant.

[13] Illes did not turn his mind to whether or not he needed a further warrant or order to receive the information from the Toronto Police Services. He was informed that the information obtained by the Toronto Police Services had been Judicially authorized.

[14] After receiving the information from the Toronto Police Service, Detective Illes obtained a warrant and attended at the Applicant's residence on or about February 1, 2012 at which time the residence was searched & numerous computers and digital storage devices were seized. On this date, the Applicant was out of the country.

[15] The Applicant was arrested at Pearson airport upon his return to Canada on February 28, 2012 and was released on bail on March 1, 2012.

[16] Although the Applicant's lawyer informed Illes that the Applicant would turn himself in, Illes declined this offer.

[17] On March 8, 2012, Illes attended at the Applicant's residence with the intention of arresting him. Although Illes did not have a Feeney warrant, the Applicant was advised that he was being arrested and what the charges were when he answered the door. On March 8, 2012 during the arrest Illes saw a DVD from AZOV on top of a shelving unit and seized it.

[18] Illes testified that the Applicant did not appear surprised by the police at his door and that the Applicant invited him in and that the discussions between them were polite.

[19] While still in the residence, the Applicant was able to speak privately with his lawyer Mr. Bytenski. After this discussion, the Applicant was allowed to gather some personal items and he was then taken into custody.

[20] Issues Raised by the Accused

A. Were the accused rights under Sections 7 & 8 of the Charter violated?

B. If so should some or all of the evidence gathered in violation of the accused’s Charter rights be excluded?

Was the Warrant Properly Issued?

[21] The Applicant submits that to answer this question, I must strip away any material that was unconstitutionally obtained, along with any material that is manifestly erroneous.

[22] The Applicant further submits, even if I find that the warrant could have issued, I must then decide, whether or not, the manner in which it was executed was reasonable. He submits there was an over seizure of items and a much too penetrating look into the files on the computer devices.

Information Sent to the Waterloo Police from the Toronto Police

[23] The Applicant further submits that the Toronto Police did not have the authority to forward his personal information to the Waterloo Regional Police without further judicial oversight. He argues that the judiciary are required to do oversight both before and after the issuance of a warrant.

[24] The Applicant argues that the Toronto Police needed, either a further warrant or an order under section 490(15) of the Criminal Code before they could send his personal information to the Waterloo Regional Police. He submits that this judicial oversight is critical.

[25] He states that it would be routine that the Toronto police would be authorized to hold on to the material they seized until the end of their proceeding however he further states that he is not a part of their proceeding and therefore the lack of judicial oversight could negatively affect him in the future.

[26] The Applicant relies in part on R v Law 2002 SCC 10, [2002] 1 S.C.R. 227. In the Law case the accused’s safe was stolen and found by the police. While reviewing the contents of the safe the police found incriminating evidence against the accused. The court stated at paragraph 21: “While the state cannot be held responsible for such a theft, the accused equally cannot be said to have relinquished all privacy interest in the stolen items." In the Law case, the police were in legal possession of the safe and would have been searching it to further their criminal investigation into who stole it. In this case, the police are investigating the Applicant for alleged crimes perpetrated using a computer.

[27] The Applicant submits, that even if the police came upon personal information about him legally, his expectation of privacy is not extinguished and that his continuing privacy requires a further warrant or order before the information can be disseminated. In addition to his general arguments he points to the AZOV website which says it guarantees privacy.

[28] The Applicant also relies on the case of R v Chen 2007 ONCJ 177, [2007] O.J. No. 1572 where the CRA (in a tax case) went to court to get an order allowing them access to material obtained by the OPP pursuant to search warrants. This case refers to Sec 490(15) of the Criminal Code.

[29] He also relies on CRA v Ontario Ministry of Finance [2004] O.J. No. 2567 when the CRA used a provision of Ontario legislation similar to section 490, to obtain information obtained by the Securities Commission pursuant to a search warrant.

[30] Both the Chen and CRA v Ministry of Finance cases are distinguishable since they are between “unrelated” ministries of the government and subject to other legislative considerations.

[31] The Applicant further relies on R v Bishop 2007 ONCJ 441, [2007] O.J. No. 3806 where at paragraph 11 the court states: “Inspector Zito then took all necessary legal procedures in the state of New Jersey to obtain an order permitting the State of New Jersey to disclose and share grand jury information with the Ottawa police service in Ottawa Canada…”. This case is also distinguishable since it is between different branches of government, and a different country with international protocols, not police forces in the same province, sworn to do the same thing, which is to uphold the law.

[32] The Applicant further submits, based on the cases of Law and Dyment 1988 SCC 10, [1988] 2 S.C.R. 417, that when police forces obtain something lawfully it brings with it a constructive trust such that the police forces can only use it for their own purposes. To hold otherwise he argues would render judicial oversight and make the provisions that police should return items (excluding contraband) to an accused when no longer needed meaningless.

[33] The Applicant concedes there are many cases where sharing of information between Police Departments is appropriate, except he submits, where the information to be shared has an expectation of privacy

[34] The Applicant argues that if he never lost his expectation of privacy after the information was found by the Toronto Police, then the Toronto Police must decide if there is an expectation of privacy before they can forward the information on to any other police force

[35] The Applicant further submits that the act of the Waterloo Regional Police obtaining his personal information from the Toronto Police force was a search and therefore pursuant to R v Spencer, 2014 SCC 43 he had a reasonable expectation of privacy in the information provided. The Spencer case involved a police force obtaining information from an Internet service provider by using an LER.

[36] At paragraph 36 of Spencer, the court states "The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. To paraphrase Binnie J. in Patrick, the issue is not whether Mr. Spencer had a legitimate privacy interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their homes for private purposes.

[37] It is the Crown's position, that the principle of privacy interests vary pre-and post-lawful seizure. She argues, that there is no reasonable expectation of privacy remaining in an object, once that object has been lawfully obtained by police for use in a criminal investigation. See R v Jones, 2011 ONCA 632 at para 45.

[38] The Crown admits that the Waterloo Regional Police Service got the accused’s name address and business phone number from the Toronto Police Service.

[39] However before requesting a warrant they were able to verify the above information through open source information, including advertisements placed on the Internet by the accused for his personal and business reasons. In addition, the police had access to government databases such as the Ministry of Transportation to further confirm the correctness of their information.

[40] The Crown submits that by doing all of this research the Waterloo Regional Police have shown good faith by the careful manner in which they confirmed the accused information from multiple trusted sources.

[41] The Crown submits there can be no expectation or at best a very minimal expectation of privacy in such information that has already been disseminated throughout the Internet.

[42] The Crown also submits that once you freely give private information to a website such as AZOV, you have a diminished expectation of privacy and would have little if any recourse in the event that the website disseminated the information.

[43] The Crown further submits that in this case, the Toronto Police Services seized the AZOV servers pursuant to a proper warrant. Both the issuing justice and the police would be aware that in all likelihood there would be information pertaining to the customers of AZOV on the servers.

[44] The Crown submits that the Justice would be aware at the time he signed the warrant that the police would investigate the owners, employees, suppliers and clients of AZOV with respect to the facts set out in the Toronto ITO.

[45] Pursuant to the Police Services Act R.S.O. 1990, Chapter P.15 and in particular section 42(1) & (2) all police officers have authority to act throughout Ontario to investigate and prevent crimes.

[46] In addition, it is the evidence before this court that there are task forces in Ontario and dedicated officers in various municipal police forces to deal with child pornography issues.

[47] The Crown submits, that based on the Police Services Act and the June 1996 report of Mr. Justice Archie Campbell following the infamous Bernardo case, the police not only have the authority to pass on information of possible crimes outside of their home jurisdiction but have a positive obligation to do so.

[48] Both parties have referred me to the recently released Supreme Court of Canada decision in R. v. Quesnelle 2014 SCC 46, [2014] S,C,J, No. 46 and in particular paragraphs 38, 39 &40.

[49] The crown submits that these paragraphs essentially authorize police forces to disseminate otherwise private information between themselves.

[50] The applicant argues that this case is not about sharing between police forces. He submits that because he provided information to a website that stated it guaranteed privacy that he would have a heightened privacy interest in the information he gave to the website. He further submits that the information is only to be used for the purpose for which it was obtained and in this case, that would be to prosecute Mr. Way, the person who ran the AZOV website.

[51] It is difficult to see how a reasonable person would expect, that otherwise private or confidential information obtained legally by the police in the investigation of alleged crimes, would not be shared with the police force in the locality where a person of interest resides, particularly, with respect to allegations of Internet crimes such as accessing or possession of child pornography.

[52] I find no merit in the accused’s submission that either the Toronto or Waterloo Police Services had to obtain a warrant or order to allow for the flow of information from Toronto to Waterloo.

[53] Once the information about the accused was in the hands of the Toronto Police Service pursuant to a valid warrant, the accused could not possibly have any reasonable expectation of privacy in the information passed on to the Waterloo Regional Police Services.

Adequacy of ITO

[54] Given the recent ruling by the Supreme Court of Canada in R v Spencer, [2013] S.C.C. 43, the Applicant submits that the Toronto Police obtained his IP address illegally by sending a law enforcement request (LER) to his Internet Provider.

[55] The Crown agrees and seeks the court's consideration of whether the ITO could still support the warrant with paragraphs 40-43 excised.

[56] Could the Waterloo warrant have been issued if paragraph 40-43 of the ITO were not present?

[57] The grounds for reviewing a search warrant is a reasonable test which is set forth at paragraphs 52 to 56 of R v Garofoli 1990 SCC 52, [1990] 2 S.C.R. 1421.

[58] Without the information contained in paragraphs 40-43 of the ITO the Applicant argues that the police would not have known where the downloading had taken place and therefore there would be no creditable evidence on which the Justice of the Peace could determine the downloads probably took place at his home address.

[59] Even without the IP information which pin pointed the location of the download as the accused’s residence, the police knew that the accused used a credit card, that the credit card included a municipal address and that a person using the credit card downloaded certain movies on certain dates.

[60] As set out on page 16 of Exhibit 1 (the warrant and ITO) and reproduced at page 16 of Exhibit 3 Tab A, this information would have included the accused’s name and municipal address complete with postal code.

[61] Illes did other research, including readily available online information and the Minister of Transportation driving records, which also linked the accused to the same municipal address of 34 Guildner Street.

[62] Therefore the probability that the accused still lived at this address was extremely high

[63] In addition to paragraphs 40-43 being excised from the ITO the parties agree that the last bullet on page 46 in the first bullet on page 47 must also be excised from paragraph 160.

[64] It is the information contained in the first bullet at the top of page 47, which connects the IP address for the download of the AZOV films to the accused municipal address.

[65] The Applicant argues that without this information the justice of the peace would not have been able to satisfy him or herself that the items to be seized, were at a certain location.

[66] While the excised portions of the ITO would have brought greater certainty to the location where the items to be seized would likely be found, it would have never reached the point of absolute certainty. There was however a reasonable probability that the items to be seized would be found at the Applicant's municipal address.

[67] The Applicant argues that in the ITO, Illes does not re