CITATION: R. v. Seguin, 2015 ONSC 1908

COURT FILE NO.: 15-13189

DATE: 2015/03/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JUSTIN SEGUIN

Respondent

Kerry McVey, for the Crown

Bruce Simpson, for the Respondent

HEARD: February 10 and 12, 2015 (Ottawa)

REASONS FOR DECISION

PARFETT J.

[1] Crown seeks to retain the hard drive of a laptop computer seized on February 4, 2014, pursuant to s. 490(3) of the Criminal Code[^1] (“Code”) and defence seeks the return of the hard drive on the basis that the seizure was warrantless and breached s. 8 of the Canadian Charter of Rights and Freedoms[^2] (“Charter”).

Background

[2] On May 9, 2013, Microsoft advised the National Centre for Missing & Exploited Children (“NCMEC”) of the fact that 89 images of child pornography had been uploaded onto one of their SkyDrive accounts. The NCMEC investigated and determined that the Internet Protocol (“IP”) address returned to a Canadian account. Consequently, they advised the RCMP. On July 29, 2013, the RCMP reviewed the report they had been sent. They then sent a Law Enforcement Request to the Internet provider to obtain subscriber information at the date and time of the upload. It was determined that the subscriber for the account was Paul Seguin and the residence was located in Greely, Ontario. Therefore, the Ottawa Police Service (“OPS”) became involved.

Evidence

[3] The International Child Exploitation unit (“ICE”) of the OPS investigated this matter. Detective Tami Casselman advised the court that she was assigned to this matter in August 2013. She advised that SkyDrive is available to any Hotmail or Outlook user. However, a person would have to apply to acquire an account. Additionally, she advised that SkyDrive is an online service for hosting files in the “Cloud” – i.e. off site. She determined that the email account associated with the SkyDrive account was “sk8r_49@hotmail.com” and the screen name for the account was “Joel Seguin”. She testified that in order to access the SkyDrive account, a password was required. Further investigation revealed that seven people – all from the Seguin family – lived at the address associated with the Internet account. One of the persons living at that address was Joel Seguin, who is the cousin of Justin Seguin. On January 2, 2014, a wireless network check was done outside the residence and it was found to be a secure network.

[4] As a result of receiving this information, a search warrant was obtained for the residence permitting seizure of all electronic devices found in the residence. Detective Casselman testified that she believed that child pornography would still be found in the residence despite the lapse of time between the upload and the date for execution of the warrant because “collectors collect” and the collection would not be destroyed.

[5] On February 4, 2014, police were watching the residence prior to conducting the search, and they observed a young man leaving the residence with what they described as a backpack. Detective Casselman indicated that she instructed the officers to follow the young man, who had driven away in a car. The car stopped in the parking lot at Algonquin College and the young man got out. At that time, officers described the bag they saw with the young man as a computer bag.

[6] Detective Casselman ordered the officers to identify the young man, arrest him and seize any electronic items that he had with him. The young man was identified as Justin Seguin and police seized his bag containing a laptop and thumb drive, as well as his iPhone. An addendum to the original search warrant was obtained to permit the search of the electronic devices seized from Mr. Seguin.

[7] Detective Casselman indicated that her grounds for ordering Justin Seguin to be arrested were based on the following:

• The grounds for the original search warrant;

• The user name and email address associated with the SkyDrive account suggested that the user was a young male – either Joel Seguin or someone using that name;

• The expectation that a young man attending college would have a computer;

• The expectation that a young man would have electronic devices with him that could connect to the Internet.

[8] Detective Casselman agreed on cross‑examination that at the time of the arrest, she did not know who had uploaded the child pornography to the SkyDrive account. Additionally, she agreed it could have been anyone in the home or, indeed, a guest who had been provided with the password to the Wi‑Fi account. However, she was adamant that she believed Justin Seguin could have been the person involved. She also indicated that if the police had not seized the devices when they did, it is likely that Justin Seguin would have been advised of the search of the residence. In that case, if there had been any child pornography on them, those devices would have been wiped clean before the police had an opportunity to search them.

[9] Justin Seguin was taken to the police station where he was interviewed by Det. Casselman. Detective Casselman had already determined that Mr. Seguin’s computer hard drive was encrypted. She asked Mr. Seguin to provide the password, but he refused to do so. He did tell her, however, that it was a 26‑digit alpha‑numeric password. In addition, he stated that he was attending Algonquin College in the computer technician program. Detective Casselman told the Court that the password is a very secure password.

[10] At the search of the residence in Greely, Ontario, several of the computers found were seized and examined. Ultimately, all the devices seized were returned as no child pornography was found on them. Mr. Seguin’s thumb drive and iPhone were also returned to him after examination revealed no evidence of child pornography. However, the hard drive from his laptop was retained. The police have been attempting to crack the password using software designed for that purpose since the date of seizure. At present, the password has not been cracked and the police have not been able to conclude their investigation.

Issues

[11] Section 490(3) of the Code provides that detention of items during investigation may not be retained by the police for a period of more than one year unless a judge determines that, having regard to the complex nature of the investigation, further detention is warranted.

[12] Section 8 of the Charter protects everyone against unreasonable search or seizure. In addition, s. 495 of the Code provides that a person may be arrested without warrant if the officer believes on reasonable ground that the person has committed a criminal offence.

[13] The issues to be determined in this case are:

1. Was the seizure of the laptop computer warrantless;

2. If it was, was the seizure of the laptop reasonable in the circumstances; and

3. If so, should the detention of the hard drive be extended pursuant to s. 490(3) of the Code?

Positions of the parties

[14] Defence argues that the laptop computer was seized pursuant to an illegal arrest and therefore the seizure was unreasonable. Alternatively, the seizure was warrantless and unreasonable. In either case, a breach of s. 8 of the Charter occurred and, as such, pursuant to s. 24(1) of the Charter, the hard drive should be returned. Defence contends that, even if he fails on both the above grounds, this investigation is not complex, and further detention of the hard drive should not be ordered.

[15] Crown argues that the seizure was made in exigent circumstances and, although it was a warrantless seizure, it was not an unreasonable one. Moreover, the Crown states that the public interest in pursuing possible users of child pornography is such that the police should be permitted to retain the hard drive and continue to attempt to crack the password. In addition, investigations based on the forensic analysis of computers are, by their very nature, complex and time‑consuming.

Legal principles

Jurisdiction

[16] The first issue to determine is whether an application to retain property, pursuant to s. 490(3) of the Code, is the appropriate time to raise the issue of the lawfulness of the seizure.

[17] In R. v. Raponi,[^3] the Supreme Court of Canada held that, under s. 490(2) of the Code (which allows for the detention of an item beyond three months), a justice of a Provincial Court cannot consider the lawfulness of the search or seizure leading to the detention[^4] and does not have jurisdiction to order the return of detained items.[^5] Instead, the Court held that the correct procedure for the return of the goods is the civil action of replevin before a Superior Court.[^6] The Court did not specifically address whether the Superior Court could return the goods pursuant to s. 490(3) of the Code given its inherent jurisdiction. But the Court did indicate that a Superior Court could hear the issue of the lawfulness of the seizure if the applicant brought a Charter motion. Effectively, that is what has occurred in this case and I find that I can decide at this juncture whether there has been a breach of s. 8 of the Charter.[^7]

Was the seizure warrantless?

[18] The initial position of the Crown in this matter was that the original search warrant extended to the seizure of the laptop. In my view, the case law is clear that the parameters of the original search warrant did not cover the seizure of the laptop. While officers are entitled to detain occupants of a place subject to a search warrant for the purpose of preserving evidence,[^8] officers are not entitled by virtue of a search warrant to search occupants, unless they are placed under arrest[^9]. It follows that a search warrant is insufficient to justify searching a person who was seen leaving a residence that is the subject of a search warrant that has yet to be executed.

[19] Consequently, the seizure was warrantless and is a violation of Mr. Seguin’s s. 8 rights under the Charter, unless it can be justified as a seizure pursuant to a lawful arrest or as a seizure made in exigent circumstances.

Was the warrantless seizure nonetheless reasonable?

[20] In order for there to be a violation of s. 8 of the Charter, Mr. Seguin must have had a reasonable expectation of privacy in his laptop. That Mr. Seguin did have a reasonable expectation of privacy is, I believe, uncontroversial.

[21] Mr. Seguin was carrying the laptop at the time police seized it, which gives rise to a personal privacy interest[^10]. The Supreme Court of Canada has determined that everyone in Canada has a reasonable expectation of privacy in the information contained on their own personal computers[^11]. In R. v. Cole, the Supreme Court stated:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user's biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.[^12]

[22] Defence argued that the police had no reasonable grounds to arrest Justin Seguin and consequently, the seizure of his laptop was unreasonable.

[23] Section 495 of the Code provides that:

(1) A peace officer may arrest without a warrant

a. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

b. a person whom he finds committing a criminal offence; or

c. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without a warrant for

a. an indictable offence mentioned in section 553,

b. an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

c. an offence punishable on summary conviction,

in any case where

d. He believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

i. establish the identity of the person,

ii. secure or preserv3e evidence of or relating to the offence, or

iii. prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

e. He has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

[24] In this case, the Crown argued that the police had reasonable and probable grounds to arrest Mr. Seguin. She stated that the police knew that someone living at the address in Greely, Ontario, had uploaded child pornography. They also surmised that the person was likely a young male adult based on the username for the SkyDrive account. However, as conceded by Det. Casselman, the police did not know the identity of the perpetrator and there was at least one other young male adult living at that address – Joel Seguin – and his name was the screen name on the account.

[25] For an arrest without warrant to be lawful, the grounds for the arrest must be both subjectively and objectively reasonable.[^13] In this case, Det. Casselman believed that she had the necessary grounds to order Mr. Seguin’s arrest. However, in my view, those grounds were not objectively reasonable. The information concerning the identity of the person who uploaded the child pornography was, at best, equivocal. In those circumstances, it was not open to the police to arrest Mr. Seguin on the basis that it was he – and no one else – who had committed the offence. Therefore, the arrest was not lawful.

[26] For a search incident to arrest to be lawful:

1. The arrest itself must be lawful;

2. The search must be incident to arrest; and

3. The manner in which the search is conducted must be reasonable[^14].

[27] As noted above, the arrest was not lawful. However, that finding does not end the matter. In R. v. Caslake,[^15] the Supreme Court of Canada found that the search in question was not authorized by the common law rule permitting search incident to arrest.[^16] The Court then went on to consider the Crown’s argument that the search was nonetheless reasonable because there should be an “inventory search exception” to s. 8 of the Charter. While the Court ultimately dismissed that argument, the analysis undertaken by the Court nevertheless demonstrates that a search is not rendered unlawful merely because it was a search incident to an unlawful arrest. Instead, a search made pursuant to an unlawful arrest may nevertheless be valid if otherwise authorized by law.

[28] The Crown’s principal argument in this matter was that the seizure of the laptop was necessary in order to preserve evidence or, put another way, the seizure was made in exigent circumstances.

[29] Section 487.11 of the Code codifies the concept of exigent circumstances in the context of a warrantless search. That section states:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. [emphasis added]

[30] The Ontario Court of Appeal in R. v. Kelsy[^17] considered the concept of exigent circumstances. The Court stated:

Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety. [^18] [emphasis added]

[31] There is no evidence in this case that the police were concerned for public or police safety. The only type of exigent circumstances that is applicable in this case is the risk of imminent loss or destruction of evidence.

[32] With respect to this branch, the Court in Kelsy also held that “the premise underlying the exigent circumstances doctrine where there is an imminent risk of loss or destruction of evidence is that, if time permitted, the police could have obtained prior authorization, usually in the form of a search warrant”.[^19] In other words, the police must still have had the grounds necessary for obtaining a search warrant before a search in exigent circumstances will be found to be lawful. In the present case, the police already had a search warrant permitting them to seize and search all electronic devices found in the residence in Greely.

[33] Crown counsel provided several cases involving computers left at repair shops to illustrate the point that a warrantless seizure made in circumstances where there are reasonable and probable grounds to believe that the hard drive contained child pornography, have been found to be reasonable.[^20]

[34] Defence counsel argues on his client’s behalf that there is a significant difference between a seizure from a computer repair store after a technician has found child pornography on the hard drive and the circumstances of this case. I do not agree. In this case, the police had reasonable and probable grounds to believe that a computer from the Greely address contained child pornography. They also had obtained a search warrant for the residence that for the purposes of this motion is presumed to be valid. The computer seized from Justin Seguin came from that residence.

[35] There is a distinction to be drawn between seizing a computer for the purpose of searching it and actually searching it. The privacy interest in a computer relates primarily to its contents – the “biographical core of personal information”. While the seizure must also be lawful, the line where reasonableness is drawn is fact and context driven.[^21] As Paciocco J. noted in the Butters case, “if the police can ameliorate the risks … presented to the loss or destruction of evidence by taking physical control over a computer tower without putting the material privacy interest at risk by delaying inspection until a warrant is obtained, the law should and in my view does accommodate it.”[^22]

[36] I conclude in this case that the police had reasonable and probable grounds to believe that the laptop might contain evidence based on the grounds used to obtain the original search warrant. They knew that the laptop had been in the residence immediately prior to Mr. Seguin leaving the residence. They never lost sight of the car or Mr. Seguin and it was reasonable to conclude that the computer bag Mr. Seguin was carrying contained a laptop. The next step in the analysis is whether there were exigent circumstances justifying the warrantless seizure.

[37] In R. v. Grant[^23], the Supreme Court described the exigent circumstances test, in the context of warrantless searches under the Narcotic Control Act, R.S.C., 1985, c. N‑1, as follows:

This exception to the general rule which proscribes warrantless searches must be narrowly construed. In general, the test will only be satisfied where there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in a narcotics investigation if the search or seizure is delayed in order to obtain a warrant. See R. v. D. (I.D.) (1987), 1987 CanLII 206 (SK CA), 38 C.C.C. (3d) 289, [[1988] 1 W.W.R. 673], per Sherstobitoff J.A.

[38] In Kelsy, at para. 35 the Court of Appeal held that exigent circumstances are extraordinary:

… [I]t is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary. Sopinka J. made that point in R. v. Feeney at para. 52:

According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. With respect to safety concerns, in my view, it was not apparent that the safety of the police or the community was in such jeopardy that there were exigent circumstances in the present case. The situation was the same as in any case after a serious crime has been committed and the perpetrator has not been apprehended. In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant.[^24]

[39] In the present case, the police were concerned that if they delayed the seizure of the laptop while they obtained an additional warrant, there was a risk that one of the other inhabitants of the residence would warn Mr. Seguin of the police interest in their electronics and Mr. Seguin would then have the opportunity to delete any evidence from his hard drive. Mr. Seguin testified on his own behalf and it was apparent that he is very knowledgeable about computers and would have had no difficulty quickly destroying any evidence had he been alerted to the risk in time.

[40] It is important to note in the present case that once the laptop was seized the police did not go further until they had in fact obtained an addendum to their original warrant permitting them to search the contents of the hard drive. Unlike the situation in Feeney, the police in the present case did no more than was necessary to preserve the evidence. The present case is also distinguishable from R. v. Chuhuniak.[^25] In that case, the police entered the outbuildings before obtaining a search warrant. The entry was not required for public safety or to preserve evidence. Again, a watch on the outbuildings would have been sufficient assuming the police could show that they had reasonable and probable grounds to obtain a warrant.

[41] In this case, there was a realistic risk that any evidence contained on the hard drive would have been destroyed before the police had the time to obtain a warrant. Consequently, I find that there were exigent circumstances justifying the warrantless seizure of the laptop and, therefore, there was no breach of s. 8 of the Charter.

[42] Despite my finding, it is important in my view to consider what remedy might have been appropriate had there been a breach of Mr. Seguin’s rights under s. 8 of the Charter.

Section 24(1) of the Charter

[43] Section 24(2) of the Charter does not apply in this case. However, s. 24(1) could provide a solution. Defence argued that the appropriate remedy pursuant to s. 24(1) would be the return of the hard drive. I agree.[^26] On the other hand, the remedy is not automatic. In R. v. Chapman, the Ontario Court of Appeal held that, if items were seized in violation of s. 8 of the Charter, the owner is not absolutely entitled to their return, nor is the Crown absolutely entitled to retain the items. Rather, it is in the judge’s discretion to permit the Crown to retain items it requires for a prosecution if doing so would be just under s. 24(1) of the Charter.[^27]

[44] In this case, the Crown has pointed out that there is a significant public interest in the investigation of allegations of possession of child pornography. In R. v. Beauchamp, the court noted that where there is a reasonable possibility that encrypted files contain child pornography, it would not be consistent with principles of fundamental justice to provide that material to the accused.[^28] Furthermore, the evidence indicates that there has been no bad faith on the part of the police and that they believed they could seize the laptop in accordance with the original search warrant. That warrant is presumed valid at this stage of the proceedings. In striking the appropriate balance between Mr. Seguin’s rights at the investigatory stage of the proceedings and the public’s right to have serious offences properly investigated, I find that even if there had been a breach of Mr. Seguin’s right pursuant to s. 8 of the Charter, I would not have returned the hard drive.

Section 490(3) of the Code

[45] This section provides that:

490 (3) More than one order for further detention may be made under paragraph(2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a judge of a superior court of criminal jurisdiction …on the making of a summary application to him after three clear days’ notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or

(b) proceedings are instituted in which the thing detained may be required. [emphasis added]

[46] As noted in Canada Revenue Agency v. Okoroafor[^29], while s. 490(1) and (2) focus on detaining the items for the purpose of the investigation, detention pursuant to s. 490(3) can only be justified having regard to the complexity of the investigation and the onus is on the Crown to establish that complexity[^30]. In that case, the judge noted:

In assessing the complexity of the investigation, the Court may consider what work is yet to be done, the estimated time for completion and whether the work should reasonably have been done earlier: Tran, [supra note 7] para. 36; Bromley [v. Her Majesty the Queen in Right of Canada, 2002 BCSC 149, 52 W.C.B. (2d) 504], para. 22. Put bluntly, is it a complex investigation requiring further detention or a non-complex investigation that investigators have had insufficient time to complete? The former leads to further detention. The latter does not. [citations added]

[47] In this case, the investigation, apart from the issue of decrypting the hard drive, is not complex. But decrypting the hard drive in circumstances where a 26‑digit alpha‑numeric password has been used is very complex. And without knowing the contents of the hard drive, the investigation cannot move forward. There has been no “foot‑dragging” in this investigation, nor any evidence of procrastination or bad faith. It is not a matter of a lack of training or resources.[^31] It is a matter of decrypting a hard drive, which is a long and complex procedure. The evidence before me indicates that multiple computers have been working 24/7 to unravel the password, but it has yet to happen.

[48] In these circumstances, I have no difficulty finding that the investigation is complex and that retention of the hard drive is warranted. Consequently, an extension of 12 months is granted.

Madam Justice Julianne A. Parfett

Released: March 24, 2015

CITATION: R. v. Seguin, 2015 ONSC 1908

COURT FILE NO.: 15-13189

DATE: 2015/03/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

JUSTIN SEGUIN

Respondent

REASONS FOR DECISION

Parfett J.

Released: March 24, 2015

[^1]: R.S.C. 1985, c. C-46. [^2]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [^3]: 2004 SCC 50, [2004] 3 S.C.R. 35. [^4]: At para. 21. [^5]: At para. 34. [^6]: At para. 33. [^7]: See R. v. MacLeod, 2005 MBQB 15, 193 Man. R. (2d) 163 at paras. 38-39. However, see also Tran, Re, 2004 BCSC 339, 62 W.C.B. (2d) 469, decided before Raponi, supra note 3. [^8]: Levitz v. Ryan (1972), 1972 CanLII 399 (ON CA), 9 C.C.C. (2d) 182 (Ont. C.A.) at paras. 33-35. [^9]: Hutchison & Bury, Search and Seizure Law in Canada, looseleaf (Carswell, Toronto, 2014), 17-8; James A. Fontana and David Keeshan, The Law of Search & Seizure in Canada, 8th ed. (Markham, Ontario: LexisNexis Canada Inc., ( 2010), at p. 695, citing R. v. O’Donnell (1835), 7 C. & P. 138, 173 E.R. 61. [^10]: See R. v. M. (A.), 2008 SCC 19, [2008] 1 S.C.R. 569 [R. v. M. (A.)]. [^11]: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at para. 2. [^12]: 2012 SCC 53, [2012] 3 S.C.R. 34 at para. 2. [^13]: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at paras. 16 and 17. The Supreme Court has cited this decision as standing for this principle as recently as last year in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 at para. 85. [^14]: R. v. Fearon, 2014 SCC 7, 15 C.R. (7th) 221 at para. 20 [Fearon]. [^15]: 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51. [^16]: At para. 29. [^17]: 2011 ONCA 605, 280 C.C.C. (3d) 456 [Kelsy]. [^18]: At para. 24. [^19]: At para. 25. [^20]: See R. v. Winchester, [2010] ONSC 652 at paras. 48 & 49; R. v. Barwell [2013] O.J. No. 3743 (C.J.) at para. 16; and R. v. Butters, 2014 ONCJ 228. [^21]: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para. 29. See also R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60 at para. 3. [^22]: Butters, supra. Note 20 at para. 36. [^23]: 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at para. 42. [^24]: See also R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303 at para. 247. [^25]: 2010 BCCA 403, 261 C.C.C. (3d) 486. Similarly, the present case is also distinguishable from R. v. Saciragic, 2013 ONSC 7648. [^26]: See R. v. Carroll (1989), 1989 NSCA 2, 47 C.C.C. (3d) 263 (N.S.C.A.) and R. v. Chapman (1984), 1984 CanLII 2054 (ON CA), 9 D.L.R. (4th) 244 (Ont. C. A.) at para. 21. [^27]: Chapman, supra note 23 at paras. 18-19, 21. [^28]: R. v. Beauchamp, 2008 CanLII 27481 (ON SC), 58 C.R. (6th) 177 (Ont. Sup. Ct.) at paras. 52-53. This case is primarily a disclosure case involving encrypted computer drives containing personal financial information, but the judge’s comments are nonetheless apt. [^29]: 2010 ONSC 2477, 259 C.C.C. (3d) 87. [^30]: At paras. 15 and 18. [^31]: These are some of the factors considered in the Okoroafor case, supra note 26 at paras. 21 and 22.```