ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7507

DATE: 2015-12-11

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT CAPANCIONI

Defendant

David G. Kirk, for the Crown

Bruce Willson, for the Defendant

HEARD: October 5 and 6, 2015

REASONS ON CHARTER APPLICATION

JUSTICE E. GAREAU:

[1] The accused is charged under an indictment dated October 28, 2014 that between September 23, 2012 and January 15, 2013, he did have in his possession child pornography contrary to s. 163.1(4) of the Criminal Code of Canada and that between the same dates, did make available child pornography contrary to s. 163.1(3) of the Criminal Code of Canada.

[2] The accused has entered pleas of not guilty to the aforementioned charges and this matter is scheduled to proceed to trial commencing January 18, 2016.

[3] On September 1, 2015, the accused brought a notice of application to exclude evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. The evidence sought to be excluded is that obtained as a result of the search of the applicants residence and his computer system by the Sault Ste. Marie Police Services. The allegation is that the accuseds rights under s. 8 of the Canadian Charter of Rights and Freedoms were breached.

[4] The Charter application was heard on October 5 and 6, 2015 with the court`s decision reserved.

BACKGROUND

[5] This case arises from an investigation by the Sault Ste. Marie Police Services and its monitoring internet protocol addresses that were identified as potential download candidates sharing child pornography through the Internet Crimes Against Children Task Force Program. The lead investigator was Detective Constable Douglas Erkkila of the Sault Ste. Marie Police Services. Detective Constable Erkkila testified at the Charter hearing. Detective Constable Erkkila has been a member of the Technological Crimes Unit of the Sault Ste. Marie Police Services for the past 11 years. That unit deals with investigations of child pornography.

[6] On November 27, 2012 Detective Constable Erkkila began monitoring a particular internet protocol address (IPA), namely, address 24.109.39.74 using undercover investigative software available to the Sault Ste. Marie Police Services.

[7] On December 2, 2012, the undercover investigative software operated by Detective Constable Erkkila made a direct connection with the computer having the internet protocol address of 24.109.39.74. That client identified itself with a particular peer ID number. The client identified that it had 13 pieces that were downloaded successfully to the investigative computer being operated by Detective Constable Erkkila.

[8] One of the images downloaded to the investigative computer was a digital image of a young prepubescent female who appears to be approximately ten years of age. The female is naked lying on her back on a red shag carpet. The female’s body is oriented away from the camera. The female has no breast development or pubic hair. This image and other images downloaded on December 2, 2012 would be considered child nudity. None of the images downloaded as of December 2, 2012 met the legal definition of child pornography under the Criminal Code of Canada.

[9] At this point in the investigation, with the aforementioned images downloaded to the investigative computer, the Sault Ste. Marie Police Services made a Law Enforcement Request (LER) to the internet service provider requesting what is commonly referred to as “Tombstone Information” from the service provider. This request is used to determine where the physical address of the computer is. The request essentially matches a virtual address with a physical location.

[10] This request was made on December 3, 2012 by Doug Erkkila of the Sault Ste. Marie Police Services to Shaw Cablesystems. The face of the document indicates that “the request for information I am making relates to a lawful criminal investigation.” The particulars of the request made to Shaw Cablesystems is as follows:

“I am requesting the last known customer name and address of the account holder associated with the IP address 24.109.39.74 used on the 02/Dec/2012 between 22:25:21 Eastern Standard Time and 23:44:37 Eastern Standard Time.”

(Tab 3 – Application Record)

[11] Shaw Cablesystems responded to the Law Enforcement Request made by Douglas Erkkila of the Sault Ste. Marie Police Services on December 5, 2012. The body of the document from Shaw in response to the LER reads in part:

“This information is released in accordance with PIPEDA, section 7.3(c.1) and Shaw Communications Inc. policy.

ISP Response to Account Information Requested:

ISP can provide information requested: Having been provided with your authority to request and obtain the following information, this disclosure is being made in accordance with s. 7(3)(c.1) of the Personal Information Protection and Electronic Documents Act..”

The response from Shaw Cablesystems went on to identify the account holder as Moni Valladares with an address at 637 Northern Avenue, E., Sault Ste. Marie, Ontario, P6B 6G3. (Tab 3 – Application Record).

[12] This “Tombstone Information” received as a result of the Law Enforcement Request to Shaw Cablesystems was an important part of the police investigation and an important part of the Information to Obtain a Search Warrant. The investigation continued and on December 31, 2012, further images were downloaded from the IP address 24.109.39.74 to the investigative computer. Detective Constable Erkkila testified that at this point he formed reasonable and probable grounds that an offence of distributing child pornography was being committed and an Information to Obtain Search Warrant (ITO) was prepared and submitted to a Justice of the Peace.

[13] The Information to Obtain Search Warrant (ITO) is produced at Tab 4 of the application record. It is the information of Douglas Erkkila and is dated January 10, 2013. The Information to Obtain is lengthy and detailed, containing 80 paragraphs spanning 41 pages and attaching appendices.

[14] On January 10, 2013, a search warrant was granted by Justice of the Peace Stanghetta authorizing the Sault Ste. Marie Police Services to search the dwelling house of Monica Valladares, 637 Northern Avenue, Sault Ste. Marie, Ontario and to search for and seize computer systems and all of its related devices and data.

[15] This search warrant was executed by the Sault Ste. Marie Police Services on January 15, 2013. The officers located and seized a MacBook Pro Laptop computer and a MacIntosh Time Capsule Wireless hard drive.

[16] As a result of the seizure of the aforementioned items and the ongoing police investigation, Robert Capancioni was arrested on April 2, 2013 and charged with the offences of making child pornography available and downloading child pornography.

THE ISSUES

[17] The accused has brought an application for a finding that his rights as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms were breached.

[18] Section 8 of the Canadian Charter of Rights and Freedoms reads as follows:

“Every one has the right to be secure against unreasonable search or seizure.”

[19] The allegation of the applicant accused is that his s. 8 Charter rights were breached both with respect to the Law Enforcement Request (LER) by the Sault Ste. Marie Police Services to Shaw Cablesystems for the “Tombstone Information” and in the Information to Obtain Search Warrant (ITO), both of which resulted in the search warrant to be issued on January 10, 2013 by the Justice of the Peace.

THE LAW ENFORCEMENT REQUEST (LER) TO SHAW CABLESYSTEMS

[20] The applicant accused argues that the Sault Ste. Marie Police Services and, in particular, Detective Constable Douglas Erkkila did not have reasonable and probable grounds to believe the offence of child pornography had been committed when it submitted the LER to Shaw on December 3, 2012. It was clear from the evidence of Douglas Erkkila that the images downloaded to the investigative computer as of December 3, 2012 constituted images of child nudity, but did not amount to child pornography. The applicant submits that this being the case, there is no way the officer could have formed reasonable and probable grounds for believing that the distribution of child pornography was occurring and without these grounds, there was no lawful basis to submit the Law Enforcement Request to Shaw for the “Tombstone Information” requested on December 3, 2012 and received on December 5, 2012. This “Tombstone Information” is the information which was essential for the Sault Ste. Marie Police Services to prepare the ITO to be submitted to the Justice of the Peace for the issuance of the search warrant. Without this “Tombstone Information”, the address where a search warrant could be executed was not available to the Sault Ste. Marie Police Services.

[21] The applicant relies on the case of R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 as authority for the proposition that the police authorities must have reasonable and probable grounds to believe the offence has been committed before the Law Enforcement Request can be submitted and police authorities can obtain subscriber information from an internet service provider.

[22] There is no doubt that R. v. Spencer stands for the proposition that s. 8 of the Canadian Charter of Rights and Freedoms is infringed when police authorities obtain subscriber information from an internet service provider without prior judicial authorization. That judicial authorization will not issue unless reasonable and probable grounds are established by the police authorities.

[23] The case of R. v. Spencer was heard by the Supreme Court of Canada on December 9, 2013. The court released its written judgment on June 13, 2014 with that judgment being amended by the court on June 17, 2014.

[24] In the case of R. v. Spencer, the court held that the accused’s s. 8 Charter rights were infringed by the police not obtaining prior judicial authorization for the Law Enforcement Request for service provider information but rules that in balancing the factors to be considered under s. 24(2) of the Charter, the evidence was not excluded, but rather admitted into evidence. The court held that the exclusion of the evidence would bring the administration of justice into disrepute.

[25] The request and obtaining of the information through an LER from the service provider about the subscriber amounts to a search in law. As indicated in paragraph 66 of R. v. Spencer, by Cromwell, J.:

“In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy, in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate and sensitive activities being carried out on-line, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.”

[26] In dealing with whether the search was lawful, the analysis conducted by the Supreme Court of Canada in paragraphs 68 to 74 inclusive in R. v. Spencer must be considered with deference.

[27] There is no doubt that the present state of the law is that a Law Enforcement Request to obtain subscriber information from an internet provider cannot be obtained without prior judicial authorization.

[28] The crown argues that this court must be cautious in applying post R. v. Spencer requirements to pre R. v. Spencer circumstances. The crown submits that all that was required on December 3, 2012 when the Law Enforcement Request was made was compliance with the Personal Information Protection and Electronics Document Act (PIPEDA) which required the police authorities to be “carrying out an investigation relating to the enforcement of any such law” as set out in s. 7(3)(c.1) of the PIPEDA legislation. The crown submits that reasonable and probable grounds were not required in December, 2012 when the request was made, but only that a lawful criminal investigation was carried out. The crown submits that this is clear in the document titled “Letter of Request for Account Information Pursuant to a Child Sexual Exploitation Investigation”, which clearly states that “The request for information I am making relates to a lawful criminal investigation.” (Tab 3 Application Record).

[29] With respect to this submission of the crown, which was strongly and ably argued, I respectfully disagree. If the Supreme Court of Canada in R. v. Spencer has clearly set out that the LER is a search and prior judicial authorization is required, then this is the law and this was required by the Sault Ste. Marie Police Services to obtain the “Tombstone Information” from Shaw Cable. The fact that the Sault Ste. Marie Police Services followed the procedure normally followed in December, 2012 to obtain such information does not excuse them from a breach of a Charter right if a court subsequently rules that the procedure was flawed and a Charter right was ultimately infringed. The police conduct in following the usual procedure to obtain such information under PIPEDA is a factor to be considered under s. 24(2) of the Charter in a R. v. Grant analysis, but, in my view, it does not absolve them of a Charter infringement even based on a subsequent ruling. If it was a Charter infringement in June, 2014 when the Supreme Court of Canada rules in R. v. Spencer, then it was a Charter infringement in December, 2012 when the Sault Ste. Marie Police Services obtained the information from Shaw Cable on the basis of a LER without prior judicial authorization.

[30] In the case of R. v. Varty, [2015] S.J. No. 375 (SQB), a decision of the Saskatchewan Court of Queen’s Bench, the crown conceded that a January, 2013 police request of subscriber information from an internet service provider by way of a Law Enforcement Request, which was subsequently used to obtain a search warrant constituted a breach of the applicant’s s. 8 Charter rights. This concession was made in view of the decision reached in R. v. Spencer even though the request was made prior to the Spencer decision being released by the Supreme Court of Canada.

[31] It is clear on the evidence that Detective Constable Erkkila would not have had the reasonable and probable grounds to obtain a judicial authorization when he made the request to Shaw on December 3, 2012 for the subscriber information pertaining to the IP address 24.109.39.74. At that point in time, there were no images of child pornography transferred to the investigative computer, but rather images of child nudity. The police authorities could not have had reasonable and probable grounds to request judicial authorization to search for the subscriber information pertaining to IP address 24.109.39.74. Without such grounds, the request to Shaw Cable, even if accepted protocol was followed, was unlawful as decided in R. v. Spencer and as such, there was an infringement of Mr. Capancioni’s s. 8 Canadian Charter of Rights and Freedoms which protects him against “unreasonable search and seizure.”

[32] Having found that there was a breach of the accused’s s. 8 Charter rights, it is necessary for the court to consider whether there should be an exclusion of the evidence obtained, which is essentially all the evidence flowing from the Law Enforcement Request which includes all evidence seized pursuant to the search warrant granted by the Justice of the Peace.

[33] Section 24 of the Canadian Charter of Rights and Freedoms reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[34] The leading case to be considered with respect to the analysis under s. 24(2) of the Charter and whether the evidence obtained from a Charter breach will be admitted or excluded is R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1. Paragraph 71 of the R. v. Grant decision sets out the analysis required by the court to consider whether evidence should or should not be excluded. Paragraph 71 of R. v. Grant states as follows:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[35] The analysis of the Grant factors done by Schwann, J. in R. v. Varty, [2015] S.J. No. 375 is very useful to this court in the case at bar. As in the R. v. Varty case, Detective Constable Erkkila was following practices and procedures through the LER in a pre R. v. Spencer world. There is nothing in the conduct of the police that can be considered egregious or a flagrant disregard by the police of the law. The comments of the court in R. v. Fearon, 2014 SCC 77, reported at paragraph 69 in R. v. Varty are applicable to the case at bar and are worth repeating:

95 In my view, the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect's rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [Emphasis added]

These comments are equally applicable to the facts before me. The first consideration, that is, the seriousness of the Charter infringing state conduct favours inclusion of the evidence.

[36] With respect to the second consideration, the impact of the breach on the Charter-protected interests of the accused, an analysis of this factor favours excluding the evidence. The Charter-offending conduct involves an unauthorized invasion of Mr. Capancioni’s privacy rights. The privacy rights of an individual is a serious matter and a violation of a person’s privacy rights has a significant and potentially long-lasting impact on him.

[37] The third Grant factor is society’s interest in the adjudication of the case on its merits. As in the R. v. Varty case, the evidence is essential to establishing that Mr. Capancioni accessed, possessed and made available child pornography. The evidence sought to be excluded is crucial. Given the nature of the charges, the seriousness of the charges which are punishable by minimum sentences as dictated by the Parliament of Canada, society’s interest in the adjudication of a case of this nature on its’ merits is high. An analysis of this factor favours the inclusion of the evidence.

[38] Considering the totality of the matter and balancing the above three factors set out in R. v. Grant, for the analysis required under s. 24(2) of the Charter, the conclusion that I reach is that the exclusion of the evidence would bring the administration of justice into disrepute. The evidence is therefore admitted.

THE INFORMATION TO OBTAIN SEARCH WARRANT (ITO)

[39] The position of the applicant accused is that the Information to Obtain the Search Warrant is flawed in that it does not contain full and frank disclosure and that the ITO contains erroneous mis-statements of facts.

[40] The crown contends that looking at the affidavit to obtain the search warrant in its totality, it contains information to indicate reasonable and probable grounds that are sufficient to have a search warrant issue by the Justice of the Peace. The position of the crown is that any mis-statements in the affidavit, explained on amplification in the evidence of Detective Constable Douglas Erkkila, were made inadvertently and in good faith by him. The crown contends that nothing turns on the mis-statements in the affidavit and that even if these mis-statements were excluded, there would be more than sufficient grounds in the affidavit to justify a search warrant being issued.

[41] The onus lies on the applicant to demonstrate the invalidity of the affidavit to obtain the search warrant by establishing that there was no basis for its issuance. This essentially means that there were not reasonable grounds to support its issuance. (R., v. Campbell, 2010 ONCA 558).

[42] In reviewing the authorization issued by another judicial officer, the court’s analysis is governed by the principles set out by the Supreme Court of Canada in R. v. Garafoli, 1990 52 (SCC), [1990] SCJ No. 115. As stated at paragraph 56 of that decision:

“The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.”

[43] My inquiry is not a hearing de novo. It is not an inquiry as to whether or not I would have issued the authorization. (R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.) at para. 84.)

[44] The standard for review, in examining an Information to Obtain a Search Warrant (ITO) has been described by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, 252 C.C.C. (3d) 273 in paragraphs 40, 41, and 42 as follows:

[40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as “a means of circumventing a prior authorization requirement” (Araujo, at para. 59).

[45] The obligation to make “full and frank disclosure of material facts”, favourable or not, in an Information to Obtain (ITO) is set out in paragraph 44 of R. v. Morelli and is set out more fully in paragraphs 58 to 60 of that decision as follows:

[58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[59] The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

[60] The facts originally omitted must be considered on a review of the sufficiency of the warrant application. In Araujo, the Court held that where the police make good faith errors in the drafting of an ITO, the warrant authorization should be reviewed in light of amplification evidence adduced at the voir dire to correct those mistakes. Likewise, where, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO.

[46] With respect to the alleged mis-information or mis-statement in the Information to Obtain, Detective Constable Douglas Erkkila deposes that the peer I.D. numbers on both the computer downloads to the investigative computer on December 2, 2012 and December 31, 2012 were the same when they were not.

[47] At paragraph 11 of the ITO, Douglas Erkkila states the following:

“At 11:23 PM on December 02nd 2012, the UIS made a direct connection with the suspect computer at the address 24.109.39.74. This client identified itself with a peer id number of 2d415a343530342d6c6d6a5432544b7070647965 (version: - AZ4504-) This indicates that it is an Azureus bittorent client.”

[48] At paragraph 23 of the ITO, Douglas Erkkila states the following:

“The UIS successfully connected to the suspect computer which identified itself as having a peer Identification number of 2d415a343530342d787a6e463035524d79325438 (version: -=AZ4504-) This indicates that it is an Azureus BitTorrent client. This is the same peer Id number identified on December 02nd 2012.”

[49] Detective Constable Erkkila clearly states in the Information to Obtain at paragraph 23:

“This is the same peer Id number identified on December 02nd 2012.”

This assertion is repeated in paragraph 28 in the ITO where Mr. Erkkila states:

“This is the same peer Id as identified on December 02nd 2012. This client indicates that it had 361 of 549 pieces of the torrent file.”

[50] In his viva voce evidence on the Charter application, D