ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-175

DATE: 2015-12-10

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

SASA ELEZ
Respondent

K. Hull, for the Crown/Appellant

D. Zekavica, for the Respondent

HEARD: October 23, 2015

RULING ON SUMMARY CONVICTION APPEAL

J. R. McCARTHY J.

The Appeal

[1] The Crown appeals from the June 9, 2014, acquittal of the Respondent entered by His Honour Justice W.G. Beatty of the Ontario Court of Justice on charges of four counts of possession of child pornography and three counts of making available child pornography, contrary to ss. 163.1(4) and 163.1(3) of the Criminal Code, R.S.C. 1985, c. C-46. The trial of the matter proceeded by voir dire with evidence and argument on ss. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms.

Background

[2] On January 4, 2012, acting on a search warrant granted to Detective Constable Lockhart (DCL) the day preceding it, police entered the Respondent’s home to search for child pornography on computers. Police seized a laptop computer, numerous discs and video tapes from the home and arrested the Respondent on the charges set out above. The Respondent was taken to Orillia detachment where he was afforded an opportunity to speak with duty counsel. The Respondent gave a statement to DCL a short time later. The Respondent took no issue with this statement at trial.

[3] Following the seizure of the items and the arrest, DCL forgot to file the required return to justice under s. 489.1 of the Criminal Code. DCL testified that he was aware of the obligation to file the return to the justice as soon as practicable; however, it had totally left his mind to do so until he was reminded by a court clerk. The report was not filed until June 8, 2012. The investigation proceeded to a forensic examination of the seized computer, discs and video tapes with the report completed in January 2013.

[4] The trial judge found that the failure to file the return to justice until June 2012, constituted a breach of s. 489.1 of the Criminal Code which calls for a return report of items seized “as soon as is practicable”. This failure meant that the police detained the seized items unlawfully. The trial judge concluded that the unlawful detention and subsequent search of the contents of the seized items constituted an infringement of the Respondent’s rights as prescribed by s. 8 of the Charter. The trial judge went on to conduct the three part analysis under s. 24(2) of the Charter as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He concluded that the evidence ought to be excluded. The trial judge reached this conclusion after finding that the failure to file the return as soon as was practicable was a widespread practice, that the Charter right infringed was important and that the admission of the evidence would bring the administration of justice into disrepute.

The Position of the Crown

[5] The Crown accepts that there was a breach of s. 489.1 of the Criminal Code. The Crown accepts as well that such a breach constitutes an infringement of the Respondent’s rights under s. 8 of the Charter. However, the Crown argues that the trial judge’s s. 24(2) analysis was both critically devoid of reason and based upon a misapprehension of the evidence. In addition, the trial judge misplaced his analysis under the second prong of the test in R. v. Grant: the deprivation of privacy was the infringed right that required assessment for importance, not the fact that the impugned evidence comprised almost all of the evidence supporting the charge before the court.

[6] The recent Court of Appeal for Ontario decision in R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, should serve as governing authority for this court because six of the seven reasons why the evidence in that case was not excluded apply here: (a) the initial search was valid, meaning that a justice had already balanced the privacy interests of the Respondent against the interests of the state in investigating crime; (b) at the time of breach, the Respondent had a much reduced expectation of privacy because the computer had already been seized; (c) the property seized was precisely that authorized by the warrant and used for precisely the purpose authorized. Nothing that happened subsequent to the seizure could have re-engaged the balancing exercise already undertaken; (d) had the officer complied with s. 489.1, the evidence seized would inevitably have been detained under s.490 of the Code. It is indisputable that the police required the Respondent’s computer to further their investigation. No other result could have logically followed than what in fact took place – the police would have been entitled to keep and examine the computer; (e) this was a case of delayed compliance, not non-compliance; and (f) the Respondent’s residual privacy interests in the copy of the hard drive was even less than in the computer, since even if the computer had been ordered returned, the police would still have been entitled to keep a copy of the hard drive.

[7] Finally, the trial judge’s finding of a s. 10(b) Charter infringement in respect of the statement given by the Respondent at the station was entirely unwarranted. The issue was not the subject of the notice of application. No objection was taken by the Respondent to this evidence. Neither side was able to adduce any evidence or address any submissions to the court on the subject of its admissibility. Beattie J. first made mention of the s. 10(b) issue in his reasons.

The Position of the Respondent

[8] The Respondent contends that the s. 24(2) reasoning of the trial judge was sound, was based upon a reasonable appreciation of the evidence and should not be disturbed.

[9] The Respondent contends as well that the impugned evidence is tainted because DCL made a written request to Rogers Cable Company Limited for information concerning the name of a subscriber of an I.P. address without a prior authorization by a Justice. The decision of the Supreme Court of Canada in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, makes it clear that such a request by a police officer to a service provider can only be made pursuant to a judicial authorization. Accordingly, the warrant for the seizure of the Respondent’s computer was invalid: any information gleaned from the subscriber’s seized computer was obtained following a Charter infringement.

[10] The Respondent also contends that the expectation of privacy is entirely different in a personal computer than in a sample of blood. For that reason, the decision in R. v. Garcia-Machado can be distinguished on its facts. The Respondent had a high expectation of privacy in the contents of the computer seized by police in January 2012. The Respondent relies on the SCC decision in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, where Fish J. wrote, at para. 105:

[I]t is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

[11] Finally, the Respondent points not only to the police failure to report the seizure of the computer as soon as practicable under s. 489.1 of the Criminal Code, but also the police failure to request a further detention of the property within three months under s. 490(2) of the Criminal Code. Cumulative extensions on detention cannot exceed 12 months pursuant to s. 490(3). The prolonged detention of the computer without an extension and beyond 12 months was therefore unlawful. It follows that the forensic examination of the computer which was conducted on or about January 13, 2013, was unlawful.

Analysis

[12] I am inexorably drawn to the conclusion that the trial judge’s findings under s. 24(2) were fatally flawed and cannot stand. There was simply no evidence upon which the trial judge could have concluded that the failure to file a return to justice was widespread, systemic or systematic. The evidence establishes only that DCL, on 3 out of 800 occasions, had omitted to file a return to a justice. The trial judge’s conclusion resulted from either a misapprehension of the evidence or a consideration of material that was not before him. One cannot reasonably conclude that an omission which is made in 3 out 800 occurrences constitutes widespread conduct. This does not even amount to a pattern of conduct. At worst, such a rate of omission could be viewed as occasional or isolated. The trial judge’s categorization of it as widespread has no foundation in the evidence.

[13] Counsel for the Respondent offered that the trial judge had borrowed the notion of widespread conduct from the case law that he considered. A careful review of his reasons, however, reveals that Beattie J. did no such thing. Nor did the trial judge indicate that he was taking judicial notice of a fact that would be essential to his conclusion that the Charter breach was serious. The trial judge’s finding that the practice was widespread can only have been based on the evidence before him. That being the case, such a finding cannot be reasonably supported by the evidence. By basing his conclusion on an unsupportable evidentiary finding, the trial judge fell into palpable and reversible error. While the trial judge, in assessing the seriousness of the breach, considered the further searches conducted in the period after the Charter breach, it is clear that his overriding concern was this notion of the conduct being widespread, a notion that cannot be supported on the evidence. This error on a material fact was crucial to the analysis engaged in by the trial judge.

[14] I find as well that the trial judge misapplied the second prong of the test in R. v. Grant. In reviewing the second tenant of the test in Grant, the trial judge stated: “Secondly, the admission of the evidence seized from the electronic devices has a substantial impact on the defendant as it comprises almost all of the evidence supporting the charge before the court.”

[15] With respect, the substantive Charter right in play is the right to privacy, not the right to the most favourable trial possible. The trial judge failed to consider the importance of the deprivation of the right to privacy on the accused. In basing his finding of importance solely on the Crown’s ability to use that evidence at trial, the trial judge fell into reversible error.

[16] I find as well that the trial judge erred in not having regard to other relevant factors during his analysis of the seriousness of the breach, factors set out by the Court of Appeal in R. v. Garcia-Machado: (a) the validity of the initial search; (b) whether the Respondent would have held a much diminished expectation of privacy at the time of the breach given that the computer had already been seized and a copy of the hard drive undoubtedly made; (c) whether the property seized was precisely that authorized by the warrant and used for precisely the purpose authorized. This would require a consideration of whether the Respondent could had maintained an objectively reasonable expectation that the property seized would not be used for the very purpose for which it was lawfully obtained and (d) whether the justice of the peace would have ordered the detention of the evidence had the officer complied with the applicable constitutional requirements such that the evidence would have necessarily been discovered. I agree with the Crown that these additional considerations should have informed the trial judge’s reasons on the issue of exclusion under s. 24(2) of the Charter.

[17] I also find that the trial judge erred in law in excluding the evidence of the statement given by the Respondent at the station under s. 10(b) of the Charter. The Crown was entirely unaware that the evidence was being challenged. It was given no notice that the evidence was being impugned. The Crown had no opportunity to call evidence or make submissions on the s. 10(b) issue.

[18] As stated by Finlayson J.A. in R. v. Kutynec, 1992 7751, 7 O.R. (3d) 277 (C.A.), at para.14:

Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative.

[19] I hasten to add that a proper challenge to the evidence of the statement given at the Orillia police detachment might well succeed. Substantively, I make no ruling on the correctness of the decision reached by the trial judge. The interests of trial fairness, however, demand that all litigants be given an opportunity to know in advance and in sufficient detail the case that they are expected to meet or respond too. The trial judge fell into reversible error in excluding evidence when a challenge to that evidence was not the subject matter of notice to the Crown. A new trial before a new justice of the Ontario Court of Justice is therefore in order.

[20] As an appellate judge, I am not prepared to embark on an analysis of whether the warrant to search authorized by Justice of the Peace C. Hart was invalid because the police failed to first obtain an authorization prior to requesting personal information in respect of an I.P. address from a service provider. Nowhere in his reasons does the trial judge suggest that the warrant was invalid for this reason. In fact, the trial judge confirms the validity of the warrant after considering that fact as part of the evidentiary record. Neither the trial judge’s reasoning for his finding of a Charter infringement nor his reasoning for excluding the evidence include the invalidity or irregularity of the request to the service provider. The basis for a finding that a warrant is invalid must be established by the trial judge. It would, in my view, be an improper exercise of the function of a reviewing court to bolster the trial judge’s reasons by infusing them with some other consideration that he could have made in coming to the conclusion he did.

Disposition

[21] For the above reasons, the order of Beattie J. dated June 9, 2014, is set aside. The matter is remitted to the Ontario Court of Justice for a new trial before a new judge. It should follow from my reasons that there is no need for the Respondent at trial to satisfy that court that the breach of s. 489.1(1) of the Criminal Code constitutes an infringement of the Respondent’s rights under s. 8 of the Charter. That has now been admitted by the Crown. Order to go accordingly.

J. R. McCARTHY J.

Released: December 10, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.