SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: SCA (P) 666/14
DATE: 20151102

RE: HER MAJESTY THE QUEEN
Crown/Appellant

AND

FREDERICK CUSICK
Defendant/Respondent

BEFORE: Ricchetti, J.

COUNSEL:
S. Latimer, Counsel for the Crown/Appellant

T. MacDonald, Counsel, for the Defendant/Respondent

HEARD: September 25, 2015

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice E. Ready on October 30, 2014]

Contents

OVERVIEW OF THE APPEAL.. 3

THE CHARTER APPLICATION.. 4

NEMEC REPORTS. 4

Microsoft Corporation. 4

The Role of NCMEC.. 8

The Handling of the NCMEC Report in Canada. 9

THE FACTS. 10

THE POSITION OF THE PARTIES AT TRIAL.. 13

THE TRIAL JUDGE’S REASONS. 14

(A) On the issue of the failure to include the Disclaimer the trial judge stated: 14

(B ) On the issue of PhotoDNA the trial judge stated: 15

(C) On the Issue of Time Discrepancy in the NCMEC report, the trial judge stated: 15

(D) on whether there continued to be reasonable and probable grounds after the Elliot search. 16

(E) On whether there were reasonable and probable grounds that evidence of the offence would be found at Mr. Cusick’s home, the trial judge stated: 17

THE LAW... 18

Trial Judge’s Review of the Issuance of the Search Warrant 18

Appellate Review.. 20

THE POSITION OF THE PARTIES ON APPEAL.. 21

THE ANALYSIS. 21

PART 1 - The Reliability of NCMEC CyberTipline Reports. 22

A) Undisputed facts. 22

B) NCMEC’s identification of the geographic location. 23

C) PhotoDNA.. 25

D) User Name, IP and Timing of the Uploading. 26

E) How NCMEC CyberTipline Reports are treated in the USA.. 26

F) How NCMEC CyberTipline Reports are relied on in Canada. 29

H) Inherent reliability of the essential information in NCMEC CyberTipline Reports. 30

I) The Debot analysis. 32

J) Conclusion. 34

K) Trial Judge’s Error of Law.. 34

PART 2 - THE Trial Judge’s Specific Issues with the NCMEC CyberTipline Reports?. 36

a) The failure to include the Disclaimer 36

b) Lack of Confirmation of the use of PhotoDNA.. 38

c) The Time Discrepancy in the NCMEC CyberTipline Report 39

PART 3 - Was there reasonable and probable grounds to believe that evidence of the offence would be found at Mr. Cusick’s residence?. 42

a) Lack of detailed knowledge of the computer procedure or methodology of uploading. 43

b) the 8-9 month time interval from the date of the reported uploading until the execution of the search warrant 46

Conclusion On Trial Judge’s Ruling Regarding the Search Warrant 51

PART 4 - Was there a lack of reasonable and probable ground to continue with the search warrant after the search at Mr. Elliott’s home?. 52

PART 5 - Did the trial judge err in her s. 24(2) Charter analysis?. 55

CONCLUSION.. 55

OVERVIEW OF THE APPEAL

1On January 21, 2013 the Peel Regional Police (PRP) obtained a search warrant to conduct a search of Mr. Cusick’s computer equipment at his home on 338 Queen Street South, Mississauga. A search warrant was granted by the issuing Justice of the Peace. On January 23, 2013, the PRP executed the search warrant at Mr. Cusick’s home. Mr. Cusick’s computer equipment was found to contain images alleged to be child pornography. Mr. Cusick was charged with possession of child pornography.

2The Defence submitted that there were a number of breaches of Mr. Cusick’s s. 8 Charter rights and sought to exclude the computer images obtained during the execution of the search warrant under s. 24(2) of the Charter.

3The pre-trial application was heard before the Honourable Justice E. Ready of the Ontario Court of Justice (the “trial judge”).

4The Defence cross-examined Constable Chris MacDonald, the affiant of the Information to Obtain (ITO).

5On October 30, 2014, the trial judge found that Constable MacDonald failed to “verify for accuracy” information set out in the ITO and the execution of the search warrant infringed Mr. Cusick’s s.8 Charter rights. The trial judge excluded the evidence of the images found as a result of the execution of the search warrant.

6As a result, the Crown led no evidence at trial and the charge against Mr. Cusick for possession of child pornography was dismissed.

7The Crown appeals the trial judge’s Charter ruling seeking an order setting aside the acquittal and ordering a new trial.

8I am satisfied that the trial judge erred in requiring that the information in the ITO needed to be “verified for accuracy” before such information could be relied upon by the issuing Justice of the Peace to issue the search warrant. The trial judge made findings which were not supported by the evidence. The trial judge erred in failing to determine whether the issuing Justice of the Peace “could have issued the search warrant” based upon the information set out in the ITO and Constable MacDonald’s grounds for belief.

THE CHARTER APPLICATION

9Constable MacDonald, in addition to giving evidence on the subject investigation, was qualified as an expert in the areas of “online cloud storage and internet investigations”.

10One of the central issues regarding the alleged s. 8 Charter breaches was Constable MacDonald’s reliance on a “NCMEC CyberTipline Report”. It is therefore necessary to review how such reports are generated and how they find their way to local police authorities.

NEMEC REPORTS

Microsoft Corporation

11Microsoft Corporation (Microsoft) is an Electronic Service Provider (ESP) and Internet Service Provider (ISP); not that a distinction between an ESP and ISP is significant to this case. One part of Microsoft’s global business includes providing cloud-based storage on its servers through Skydrive. This service is available to all internet users throughout the world, including Canada. This essentially permits users to have access to Microsoft’s servers to upload, store, transfer and download a user’s files. These files can include images.

12Microsoft permits a user to access the “cloud storage” from any computer connected to the internet anywhere in the world. This permits a user not to have files stored on the user’s computer but instead stored in the Microsoft “cloud”. A user can upload images to the “cloud” in a number of ways including uploading files on his or her computer’s hard drive, files on a thumb (or flash) drive or files from an email attachment. If the file is uploaded to the cloud from the user’s computer hard drive, the file containing the images would remain on the computer until deleted. However, if the uploaded file is directly from a thumb drive or an email attachment a copy of the images would not necessarily be or remain on the user’s computer. Once uploaded in whatever manner, a user can nevertheless view, transfer, store or retrieve files directly from Microsoft’s cloud-based storage. “Artifacts” are electronic remnants on a computer which show the electronic actions of the computer such as uploading, downloading or transfer of files to the internet, even though the files themselves may not be located on the computer.

13ESP are governed by American legislation called the Victims of Child Abuse Act, 1990 – U.S. Code, Title 18 – Crimes and Criminal Procedure, Chapter 110, s. 2258a which provides:

(a) DUTY TO REPORT

(1) IN GENERAL - Whoever, while engaged in provide an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible-

(A) provide to the CyberTipline of the National Center for the Missing and Exploited Children, or any successor to the CyberTipline operated by such center, the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider;

(B) make a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by such center.

(2) FACTS OR CIRCUMSTANCES – The facts or circumstances described in this paragraph are any facts or circumstances from which there is an apparent violation of-

[various child pornography provisions]

(b) CONTENTS OF REPORT – To the extent the information is within the custody or control of an electronic communication service provider or a remote computing service provider, the facts and circumstances included in each report under subsection (a) (1) may include the following information:

(1) INFORMATION ABOUT THE INVOLVED INDIVIDUAL -……

(2) HISTORICAL REFERENCE – Information relating ot when and how a customer or subscriber of an electronic communication service or a remote computing services, uploaded, transmitted or received apparent child pornography or when and how apparent child pornography was report to, or discovered by the electronic communication service provider or remote computing service provider, including a date and time stamp and time zone.

(3) GEOGRAPHIC LOCATION INFORMATION –

(A) IN GENERAL- Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified billing address, or, if not reasonable available, at least 1 form of geographic identifying information, including the area code or zip code.

(B) …

(4) IMAGES OF APPARENT CHILD PORNOGRAPHY – Any image of apparent child pornography relating to the incident such report is regarding.

(5) COMPLETE COMMUNICATION - …

(c) FORWARDING OF REPORT TO LAW ENFORCEMENT –

(1) The National Center for Missing and Exploited Children shall forward each report made under subsection (a)(1) to any appropriate law enforcement agency designated by the Attorney General under subsection (d)(2).

(2) STATE AND LOCAL LAW ENFORCEMENT-…

(3) FOREIGN LAW ENFORCEMENT –

(A) IN GENERAL – The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to any appropriate foreign law enforcement agency designated by the Attorney General under subsection (d)(3), subject to the conditions established by the Attorney General under subsection (d)(3).

(B) TRANSMITTAL TO DESIGNATED FEDERAL AGENCIES – If the National Center for Missing and Exploited Children forwards a report to a foreign law enforcement agency under subparagraph (a), the National Center for Missing and Exploited Children shall concurrently provide a copy of the report and the identity of the foreign law enforcement agency to –

(i) the Attorney General; or

(ii) the Federal law enforcement agency or agencies designated by the Attorney General under subsection (d)(2)

(4) REPORTING DESIGNATED FOREIGN AGENCIES….

(5) SENSE OF CONGRESS REGARDING DESIGNATION OF FOREIGN AGENCIES…

(6) NOTIFICATION TO PROVIDERS –

(e) FAILURE TO REPORT – An electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report required under subsection (a)(1) shall be fined - …..

(f) PROTECTION OF PRIVACY- ….

(g) CONDITIONS OF DISCLOSURE INFORMATION CONTAINED WITHIN REPORT-….

(“American Reporting Legislation”)

14Microsoft is an electronic service provider for the purpose of the American Reporting Legislation. Constable MacDonald testified that in order to carry out its responsibilities to identify child exploitation, Microsoft created PhotoDNA in association with Dartmouth College. PhotoDNA is a program which is able to electronically and automatically compare digital images with previously identified child pornography. PhotoDNA has since been adopted by Facebook, Twitter and other large ESPs.

15PhotoDNA automatically scans all files uploaded to Microsoft’s cloud based storage. When child pornography is identified, reports are automatically generated and delivered electronically to The National Center for Missing and Exploited Children (NCMEC). Microsoft’s report includes the images, the user account information and the IP address.

16Constable MacDonald, as an expert and a repeat user of NCMEC CyberTipline Reports to obtain search warrants, knew that Microsoft was involved in the development of PhotoDNA and believed that Microsoft used PhotoDNA to identify child pornography for the purpose of generating NCMEC CyberTipline Reports. Constable MacDonald has relied on NCMEC CyberTipline Reports from ESP’s on numerous occasions to obtain search warrants for computer equipment searches related to child pornography.

The Role of NCMEC

17As set out in the American Reporting Legislation, NCMEC is the recipient of the electronic reports from the ESP. NCMEC creates a written report of the information received from the ESP, which report is called a NCMEC CyberTipline Report. The information from the ESP is set out in the first three pages of the NCMEC CyberTipline Report under the heading:

The following information was submitted to NCMEC’s CyberTipline. This information cannot be modified by ECD staff.” The report identifies the ESP.

18Starting at the top of page 4, the NCMEC CyberTipline Report sets out the NCMEC supplemental information being:

(a) the geographic jurisdiction of the IP address; and

(b) the law enforcement agency to whom the NEMEC CyberTipline Report is forwarded.

19NCMEC is statutorily bound to provide this report to the appropriate law enforcement agency by the American Reporting Legislation.

20NCMEC is a “clearing house”; the exact words used by Constable MacDonald when describing NCMEC’s role in the ITO. NCMEC does not generate any information regarding what was uploaded, when it was uploaded or the user information.

21This role of NCMEC is described in the NCMEC CyberTipline Report:

NCMEC does not investigate and cannot verify the accuracy of the information reported to NCMEC. NCMEC forwards reports of child sexual exploitation to law enforcement for purposes of investigation and disposition.

LAW ENFORCEMENT OFFICIALS PLEASE BE ADVISED: This Report is being provided solely for informational purposes pursuant to NCMEC’s congressional authorization and mission. Under no circumstances shall this Report be used as evidence of criminal wrongdoing Please treat all information contained in this report as law enforcement sensitive information and do not share any contents of this report with persons unrelated to the criminal investigation or any resulting criminal prosecution.

22These two statements in the NCMEC CyberTipline Report are hereafter referred to as the “Disclaimer”.

The Handling of the NCMEC Report in Canada

23When NCMEC determines that the ESP report relates to a Canadian IP address, it forwards the NCMEC CyberTipline Report to the Canadian National Child Exploitation Coordination Center (NCECC), a division of the RCMP.

24The RCMP reviews the NCMEC CyberTipline Report and forwards it to the appropriate local law enforcement agency. In this case, the IP addresses were identified as being in the Region Municipality of Peel. As a result, NCECC forwarded the NCMEC CyberTipline Report to the PRP to investigate.

THE FACTS

25In accordance with Victims of Child Abuse Act, 1990, Microsoft reported to NCMEC the following relevant information:

a) Email address: we.are.theborg@hotmail.com

b) Screen/User Name: John.E

c) Two IP addresses: 174.95.50.159 and 174.95.50.28; and

d) 41 JPG files setting out the IP address, the date and time of the upload for each of the files.

26In August 2012, NCECC received 21 files from NCMEC which had originated from Microsoft.

27On December 3, 2012, NCECC received 20 more NCMEC files.

28In total, in the 41 files identified by Microsoft, there were approximately 2,000 images uploaded. The files were uploaded between May 14th and 19th, 2012.

29NCMEC identified, on page 4, that the two IP addresses originated from a Canadian address and that it forwarded the Microsoft information to “RCMP NCECC”.

30The NCMEC CyberTipline Reports were forwarded to the PRP for investigation. The investigation was commenced on August 9th, 2012. The various investigative steps taken by the PRP over the next few months are set out in the ITO.

31As set out above, copies of the images were available with the NCMEC CyberTipline Report. Constable MacDonald reviewed the images in the uploaded files and was satisfied that the images were child pornography under the Criminal Code. Brief descriptions of some of the images and why they were considered to be child pornography were described by Constable MacDonald in the ITO.

32The PRP made a request of Bell Canada, for the two IP addresses used by we.are.theborg@hotmail.com. Bell Canada provided residential addresses for the two IP addresses. One of the two IP addresses, used on May 10, 2012, was that of Mr. Elliott on Nipiwin (Nipiwin address). The other IP address, used on May 19, 2012, was that of F. Cusick at 338 Queen St. S. BSMT, Mississauga, the respondent in this case (Mr. Cusick’s home).

33In December 2012 the PRP received the second NCMEC CyberTipline Report.

34Shortly after the receipt of the second NCMEC CyberTipline Report, on January 21, 2013 Constable MacDonald prepared a search warrant application to search the two residences associated with the IP addresses used to upload the apparent child pornography identified in the NCMEC CyberTipline Reports.

35The ITO contained the following:

… Police wish to seize all computer system capable of operating on the Internet in order to identify, collect and preserve any images on the computer, as well as the electronic artifacts to afford evidence of possession of child pornography. The further analysis of the computer systems(s) will clarify which identifying what computer(s) have access to this Microsoft account.

Other devices capable of storing electronic data may contain images of child pornography. Due to the type of files uploaded, there is reason to believe that the suspect used an external storage device, that at some point was plugged into a Windows operating system and later a Macintosh/Linux operating system, or visa versa. Police wish to seize all devices capable of storing electronic data to have it analyzed for evidence of child pornography images.

I have reasonable ground to believe that one Microsoft account, we.are.theborg@hotmail.com, has uploaded images of child pornography using two different internet connections at two locations in Mississauga. This application is for 338 Queen St. South, Basement Apartment, Mississauga, ON. I believe the seizure and analysis of the items listed in Appendix A will corroborate the information originating from Microsoft, determine what computer system(s) specifically had access to this Microsoft account and render evidence of the child pornography based offence named in appendix B. ..

36The presiding Justice of the Peace granted the search warrants to search the Nipiwin address and Mr. Cusick’s home on January 23, 2013.

37The PRP executed the search warrant at the Nipiwin address. A resident of that home was John Elliott, consistent with the user name of “JohnE.”. During the execution of that warrant, Constable MacDonald learned that John Elliott was a 17 year old autistic male who had also previously been cautioned by the police for child pornography offences. John Elliott admitted he had used the account we.are.theborg@hotmail.com . However, John Elliot denied that he had uploaded any child pornography in years. Mr. Elliott denied he knew Mr. Cusick and stated he had not been to Mr. Cusick’s home.

38After considering the information from John Elliott and considering that NCMEC CyberTipline Report had shown that the IP address associated with Mr. Cusick’s home had uploaded apparent child pornography, Constable MacDonald continued to believe he had reasonable and probable grounds to continue with the search of Mr. Cusick’s home to obtain evidence of the offence.

39When the police attended at Mr. Cusick’s home, Mr. Cusick’s was asked if there would be any child pornography on his computer. He said there “shouldn’t” be any. Mr. Cusick said that he didn’t know “John E.”; denied any knowledge of the email address we.are.theborg@hotmail.com; and denied that any kids come over to use his computer. As noted by the trial judge: “He was asked about naked kids on the computer and he replied about an image of a girl against the wall but there was no sex, he should have deleted it and maybe child nudity but no pornography”. Not satisfied, the police continued to execute the search warrant on Mr. Cusick’s home. Mr. Cusick’s computers equipment was seized.

40After reviewing Mr. Cusick’s computer equipment, the police did not find any evidence relating to the uploading of the apparent child pornography set out in the NCMEC CyberTipline Reports. However, the police found other alleged child pornography and Mr. Cusick was charged with possession of child pornography.

THE POSITION OF THE PARTIES AT TRIAL

41The Defence submitted that:

a) The search warrant was facially invalid as the ITO did not disclose reasonable and probable grounds to believe that evidence of the offence would be found at Mr Cusick’s home;

b) The search warrant was sub-facially invalid because the affiant failed to provide full, fair and frank disclosure;

c) The search warrant was sub-facially invalid because the ISP provided the customer information to the police at the police request without a warrant; and

d) Subsequently obtained information (the prior search of the Elliott home) removed any semblance of reasonable and probable grounds to believe that there was evidence of the offence at Mr. Cusick’s home.

42As a result, the Defence submitted that Mr. Cusick’s s. 8 Charter rights were breached and all evidence obtained through the execution of the search warrant at Mr. Cusick’s home should be excluded under s. 24(2) of the Charter.

43The Crown conceded that, as a result of the decision in R. v. Spencer [2014] S.C.C. 43, which post-dated obtaining and executing the search warrants at issue, there was a breach of the Respondent’s Charter rights. The Crown denied there were any other breaches of Mr. Cusick’s s. 8 Charter rights.

44In any event, the Crown submitted that the evidence should not be excluded under s. 24(2) of the Charter.

THE TRIAL JUDGE’S REASONS

45The trial judge’s reasons dealt with a number of issues leading to her finding of multiple s. 8 Charter breaches and excluding the evidence under s. 24(2) of the Charter.

(A) On the issue of the failure to include the Disclaimer the trial judge stated:

Constable MacDonald felt the warnings from NCMEC need not go into the ITO because he believed them to be disclaimers to protect NCMEC from criminal responsibility for the information in the reports.

My findings and conclusions. I do not accept Constable MacDonald’s explanation as to his understanding of the meaning of the NCMEC warnings as a disclaimer to protect NCMEC only from criminal responsibility. He has never confirmed with NCMEC what either warning means and a common sense reading of the wordings both at the top and the bottom of this page indicates a warning to whoever comes into possession of this report, that it is in essence a tip. It’s information that is not verified as to accuracy, you are the people who must do that, you investigate, it is not evidence of criminal conduct.

By not putting the warning into the ITO about the information in the NCMEC report for the Justice of the Peace to assess, and by not verifying the information in the NCMEC report for accuracy, the record as it stood had the Justice of the Peace acting on unreliable, unverified information in support of reasonable and probable grounds. By not including this relevant material information, I find in the ITO, the Justice of the Peace was misled in respect of the reliability of the information he was acting upon.

There is no basis, therefore on which the search warrant could issue. I find that the failure to place the NCMEC warnings into the ITO and the failure to verify the accuracy of the information he placed before the Justice of the Peace was done as a result of carelessness and recklessness. ....

(emphasis added)

(B ) On the issue of PhotoDNA the trial judge stated:

He [Constable MacDonald] said Microsoft and NCMEC are large organizations and Microsoft uses photo DNA from his experience which he says is reliable, not subject to human error. Microsoft is in the forefront of child pornography investigation and he had no reason to be suspicious of their information and verify it for accuracy.

He has never verified the accuracy of what’s in a NCMEC report with Microsoft. Notwithstanding the warnings on the NCMEC report, he does not verify the accuracy of information and he doesn’t investigate it. ...

(emphasis added)

(C) On the Issue of Time Discrepancy in the NCMEC report, the trial judge stated:

The officer, as he indicated, assumed that the times in the NCMEC report written beside the file names were times the perpetrator uploaded the images. The contradiction arose because common sense says that illicit uploading has to occur before the time that the report was prepared at 16.46 GMT. And common sense would also say the illicit uploading would have to be before the time set out beside the file names in the NCMEC report, namely, before 23.46 GMT or approximately 8:00 p.m., Mississauga time.

Constable MacDonald could not, as I say, really explain the contradictions noted above. By the next date that we returned to court he had done his own analysis of the contradictions between incident date times and the uploading times and prepared another spreadsheet which became Exhibit Three on the application.

This is a form of amplification evidence that if accepted, could have added to and corrected the record that the Justice of the Peace would have had before him. He felt the incident date and time written on the report as GMT was incorrect and what was meant to have been put in there was PDT. I believe that is pacific daylight time.

As to Constable MacDonald’s new theory that the automated system should have put PDT in, not GMT in the incident date time clause which would make sense of the time of uploading when the accused had an IP address at 23.46 GMT, it cannot be said that it is credible amplification evidence to correct the record before a Justice of the Peace when this new theory has never been verified or confirmed with Microsoft and at best it is unverified and unreliable evidence, based upon his personal theory and his assumptions. That the automated system put in the wrong time zone must be verified, I find.

In the end result there was no basis upon which the warrant could issue.

(emphasis added)

(D) on whether there continued to be reasonable and probable grounds after the Elliot search

The first search warrant was executed at Nipiwin. Then the second search warrant was executed at 338 Queen Street South.

Constable MacDonald said that to this day he believes that the 17 year old was responsible for uploading the pornography but he cannot prove it. He then went on to say that he knew that wearetheborg email address was used at 338 Queen Street South, from his information and he said to the Crown that nothing he learned at Nipiwin or at 338 Queen Street South negated his reasonable and probable grounds.

However, at 338 Queen Street South, he spoke to the accused, Mr. Cusick. Mr. Cusick, after being apprised of why the officer was there, gave a general and surprised response to the allegations. He says he doesn’t know John E., he has no idea about the email address of wearetheborg and Mr. Cusick’s mother said no kids come over to use the computer or bring their own computers over.

He was asked by Constable MacDonald, would police find any child pornography on the computer and he made a comment that it shouldn’t. Police used a device to go onto the computer and found no connection with wearetheborg and no images of child pornography as identified by the NCMEC report.

He was asked about naked kids on the computer and he replied about an image of a girl against the wall but there was no sex, he should have deleted it and maybe child nudity but no pornography. Police felt it might not be child pornography but took the computers and the discs anyways and analysed them. What they did find after analysis was child pornography they felt but it was totally unrelated to the NCMEC report.

Constable MacDonald agreed that he had no grounds to believe Mr. Cusick had anything to do with the we.aretheborg uploadings but decided to take the computer anyways and fully analysed them, in other words, do a proper search because there was still the possibility of evidence on his computer and he gave an example.

For example, John E. uses the computer at Cusick’s house even though – and I say this, even though he said he had this to tie to the possibility of evidence, even though all the information that he had to date pointed to no connection between the two houses or the two men.

Assessing reasonable and probable grounds that Constable MacDonald had up to the point he seized the accused, Cusick’s computer and discs, I conclude that it would not be objectively reasonable that there would be evidence of the uploading activity on the accused’s computer and storage discs at the time. The possibility of evidence on the computer because John E. might have come to Mr. Cusick’s house based upon the information the officer had was speculative.

This is not reasonable and probable grounds to believe notwithstanding the existence of the search warrant, this search I find – and seizure, was unreasonable, arbitrary and a Section 8 breach.

(emphasis added)

(E) On whether there were reasonable and probable grounds that evidence of the offence would be found at Mr. Cusick’s home, the trial judge stated:

The ITO was prepared and an application for a search warrant was made some seven to eight months later.

The reasonable and probable grounds, must show that there is evidence of the offence at his address. The grounds must be sufficiently current to disclose that the evidence will be on the premises seven to eight months after the reported times of the illicit conduct.

The amplified record disclosed that the images could be transferred to Skydrive from emails or from a hard drive. Constable MacDonald did not know how they were uploaded in this case. He said he had no grounds to believe that actual images, in other words, a collection of images would be at either address, the Queen Street address or the Nipiwin.

However, in the Information To Obtain he stated artifacts can be left behind on the computer. He felt this is what he was searching for really, were these artifacts. However, he testified that this is not the full story as any technical expert would know. Artifacts, they remain sometimes for years but artifacts can degrade or be written over, they can get lost or they can just go away. As to how long they are there depends on the type of the system, the type of the computer used and the usage of the computer.

At the time of drafting, he had no idea of any of this, of the usage, of the systems, et cetera. Nor, he had no idea as to the chances the artifacts on the computer would be there seven to eight months later. He couldn’t say, he said if he tried it was speculation.

Constable MacDonald agreed he could not say what the chances would be that a computer would be there seven to eight months later. It is clear the affiant’s belief was below the standard of reasonable and probable grounds.

However, in the ITO he clearly states he had reasonable and probable grounds to believe evidence would be found. The amplified record addressed above shows that at best he exaggerated the existence of reasonable and probable grounds and thereby misled the Justice of the Peace. Had the amplified record been placed before the Justice of the Peace, it would be impossible to find reasonable and probable grounds to believe the evidence would be found there. On the amplified record, there is no basis on which a warrant could issue.

(emphasis added)

THE LAW

Trial Judge’s Review of the Issuance of the Search Warrant

46The principles applicable to a review of the issuance of a search warrant were canvassed in R. v. Campbell, 2010 ONCA 588:

46In Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68, LeBel J., writing for the majority of the Supreme Court of Canada, indicated that:

[T]he reviewing judge will assess the whole of the evidence submitted to him or her and to the authorizing judge, and will then decide whether the authorization should have been given. The reviewing judge will begin the analysis by recalling that the law regards the authorization as facially valid, and that it is the task of the applicant, on review, to demolish that appearance of validity. If that attempt fails, the authorization will be upheld.

47Earlier in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para 62, Sopinka J., writing for the majority, said:

[T]he reviewing judge should not set aside the decision [of the issuing justice] unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

48In Araujo at para. 54, LeBel J., writing for the whole court, said:

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.

49When looking for sufficient reliable information in the balance of the ITO the statutory standard to be applied is whether the affiant had “reasonable grounds to believe” relevant evidence would be found. This standard has been the subject of much judicial consideration.

50In the seminal case, Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, Dickson J. first set the standard of reasonable and probable grounds for search warrants to be consistent with s. 8 of the Charter. He also offered the following guidance as to the application of the standard:

The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.

51Later, in Debot, at p. 1166, Wilson J., without alluding to the term “credibly-based probability”, described the standard of proof as one of “reasonable probability” or “reasonable belief”.

52Most recently the dicta of Deschamps J. in Morelli, at para. 129, are helpful in understanding the standard. Although she was writing for a minority of three out of seven justices of the Supreme Court of Canada, the following comments are not inconsistent with the majority reasons:

Determining whether evidence gives rise to a “credibly-based probability” does not involve parsing the facts or assessing them mathematically. Rather, what the judge must do is identify credible facts that make the decision to authorize a search reasonable in view of all the circumstances. I therefore agree with the non-technical, common-sense approach taken by Rehnquist J. (as he then was) in Illinois v. Gates, 462 U.S. 213 (1983):

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

53The Supreme Court and this court have referred to Illinois v. Gates in earlier cases. See Garofoli, at para. 61; R. v. Church of Scientology (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) (leave to appeal to SCC dismissed).

54No matter what formulation is used, it is essential that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not on mere suspicion. The standard is necessarily qualitative and reasonable people can differ in some cases about whether the authorization should have been granted. In this context the question for the reviewing court remains could the Justice of the Peace have issued the warrant.

55Before applying the standard to this particular case, I make two observations. First, the grounds for the warrant to search the respondent’s room did not have to be restricted to those grounds for believing that the evidence to be found would incriminate him. The evidence to be found could incriminate any person. A general search warrant issued pursuant to s. 487 the Criminal Code authorizes the police to search for “evidence with respect to the commission of an offence”. Second, it is not relevant whether either of the other tenants may have had backgrounds or circumstances that made them more suspect of being involved in the offence than the respondent. The only question for the reviewing court is whether the Justice of the Peace could have issued the warrant to search the respondent’s room.

(emphasis added)

[The remainder of the judgment continues exactly as reproduced above through paragraphs 56–167.]

Ricchetti J.

Date: November 02, 2015

COURT FILE NO.: SCA (P) 666/14

DATE: 20151102

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Latimer, for the

Appellant/Crown

• and –

FREDERICK CUSICK

T. MacDonald, for the Defendant/Respondent

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice E. Ready on October 30, 2014

Ricchetti J.