R. v. Machulec, 2016 ONSC 1883

CITATION: R. v. Machulec, 2016 ONSC 1883

COURT FILE NO.: CR-14-3150

DATE: 20160318

DELIVERED ORALLY: March 18, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

John Sebastian Machulec

Defendant

George Spartinos, for the Crown

Frank Miller, for the Defendant

HEARD: June 8, 9, 10, 12, 2015; August 31, 2015; September 1 and 3, 2015

RULING ON EXCLUSION MOTION

Munroe J.:

[1] A man walked into a police station with a computer tower and told the front desk officer the computer contained child pornography and belonged to his roommate. Thereafter, over the next month, the same man, Michael Knapp (“Mr. Knapp”), gave the police assorted computer disks, and told the police the same thing: they belonged to the same roommate, the accused, John Machulec (“Mr. Machulec”), and contained child pornography. The police took the computer items and then sought search warrants for the contents of the computer, the disks and the accused’s home. Finding alleged child pornography, the police charged Mr. Machulec with possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Machulec now challenges how the police obtained, and subsequently dealt with, his computer property.

[2] Mr. Machulec asserts, on a variety of grounds, that the police conduct was contrary to s. 8 of the Charter and thus its fruits should be excluded as evidence in this trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[3] The primary challenged conduct is outlined as follows:

1. Computer (December 30, 2012): Mr. Knapp entered the Windsor Police station with a computer saying it belonged to Mr. Machulec and contained child pornography. The police took the computer.

2. Three Disks (January 3, 2013): Mr. Knapp came to the Windsor Police station to give a statement. He brought three disks saying they belonged to Mr. Machulec and contained child pornography. The police took the disks.

3. Two Disks (January 10, 2013): Mr. Knapp advised police that he had two more disks containing child pornography and was willing to turn them over to the police. An officer went to Mr. Knapp and retrieved the two disks from him.

4. Search Warrant – Computer & Five Disks (January 17 and 21, 2013 – issuance and execution): The police obtained and executed a search warrant on the contents of the computer and the five disks.

5. Spindle of Disks (January 28, 2013): Mr. Knapp came to the Windsor Police station to give a statement. He brought a spindle of disks. The police took the spindle of disks.

6. Search Warrant – Home (January 28 and 29, 2013 – issuance and execution): The police obtained and executed a search warrant on the accused’s home.

7. Search Warrant – Spindle of Disks (February 4 and 5, 2013 – issuance and execution): The police obtained and executed a search warrant on the contents of the spindle of disks.

[4] The defence raises a plethora of constitutional challenges. With regard to the initial takings by the police from Mr. Knapp of the computer and five disks, the defence asserts that the takings alone qualified as unlawful warrantless seizures. The defence also claims that Mr. Knapp acted as a police agent unlawfully conducting warrantless searches and seizures of Mr. Machulec’s private property. Futhermore, the police unlawfully aided Mr. Knapp’s theft of Mr. Machulec’s property. All these actions were contrary to s. 8 of the Charter. Also with regard to the initial takings, the defence asserts no reports to the justice were filed, contrary to s. 8.

[5] With regard to the three warranted searches, the defence asserts that the first two search warrants are facially invalid due to a Branton error. Moreover, says the defence, after the redaction of the unlawfully seized evidence, all the Informations to Obtain (“ITO’s”) are insufficient to support the search warrants. Finally, the search warrant for the house is overbroad, lacks necessary specificity and is otherwise contrary to s. 8. According to the defence, collectively these s. 8 violations lead to the exclusion of all the evidence seized pursuant to s. 24(2).

[6] The Crown denies any violation of s. 8. The Crown concedes the warrantless takings were s. 8 seizures but says they were authorized by law thus avoiding any s. 8 violation. According to the Crown, these warrantless seizures were authorized by s. 489(2)(b) and (c) and by exigent circumstances. The Crown denies the police agency claim saying it is without factual support. The Crown says the claim of police illegality is both legally and factually wrong. Finally, with regard to the warrantless seizures, the Crown concedes statutory violations for the failure to file reports to the justice but says there were no s. 8 violations because the breaches were minor.

[7] With regard to the warranted searches and seizures, the Crown denies any s. 8 violations. Any Branton error, says the Crown, is not fatal to the warrants. As to the claimed insufficiency of the search warrant for the house on overbreadth and specificity grounds, the Crown says the ITO satisfies the constitutional requirements for a lawful search warrant. In any event, the Crown says that any violation found does not warrant exclusion under s. 24(2).

[8] Each issue will be addressed.

[9] A voir dire was held on the defence motion. Evidence was taken over three days. The court heard from Michael Knapp and four current or former Windsor Police officers – Brad Snyder, Gregory Loebach, Liyu Guan, and Ajay Sweet. The accused, John Machulec, did not give evidence at the voir dire. Extensive written submissions were received and reviewed. The court heard oral submissions over four days.

FACTS

[10] Prior to my review, I must resolve some differences and inconsistencies in the evidence of Mr. Knapp, both internally and with the evidence of the police witnesses.

[11] Mr. Knapp gave his evidence before me on June 8, 2015. His testimony focused on events during a one month period from the end of December, 2012, to the end of January, 2013. Mr. Knapp testified about a series of events, over this month period, that took place about two and one half years prior to his evidence. He produced no contemporaneous notes before me. Thus, it does not surprise me that his memory about details and specifics is not excellent. That said, I found Mr. Knapp to be an honest and earnest citizen attempting to do the right thing.

[12] I review here some of his evidence. First, Mr. Knapp said he called the police after he delivered the computer tower to the police. He said it was a few weeks, not days, after his delivery of the computer tower. When pressed he came down to a week and a half later. The evidence of Sgt. Loebach is that Mr. Knapp called and spoke with him on the morning of January 3, 2013, four days after Mr. Knapp’s initial delivery. Sgt. Loebach asked Mr. Knapp to come to the police station to give a statement. Mr. Knapp did so on the same day, January 3, and gave a statement to Cst. Sweet, who also gave evidence.

[13] Second, Mr. Knapp initially stated he could not recall the circumstances of giving disks to the police. Later he generally stated he took disks to the station and the police came to him for disks. He could not recall the number of disks provided to the police – he repeatedly stated there were three or four or five disks. Finally, Mr. Knapp denied giving a spindle of disks to the police. The evidence from the police witnesses is clear and straightforward. In addition and subsequent to the computer tower delivery on December 30, Mr. Knapp turned over disks to the police on three separate occasions: January 3, 2013 - three disks at the police station; January 10, 2013 - two disks picked up by the police from Mr. Knapp at his home; and January 28, 2013 - a spindle of approximately 50 disks at the police station.

[14] Third, Mr. Knapp said he did not remember exactly what he told the officer on December 30, 2012, when he delivered the computer tower. He also said he did not remember word for word what he and Cst. Guan talked about. The former presents no problem. I have the evidence of the desk officer, Cst. Snyder, who took the computer from Mr. Knapp and noted his words. The latter, however, is more of a concern because it is relevant to the issue of whether Mr. Knapp, at some point, was acting as a police agent.

[15] Initially, Mr. Knapp admitted he did his own investigation for his own reasons. He said the police never asked or directed him to investigate or seize anything; it was something he felt he had to do. Then later, after the five disks had been delivered but before the search warrant, Mr. Knapp testified that Cst. Guan asked him to see if there were other disks. This caused Mr. Knapp to search through the house until he found the disks in the secret compartment. Mr. Knapp thereupon, according to Mr. Knapp, reported this discovery back to Cst. Guan. Still later, Mr. Knapp testified, “There was no talk about looking around or anything. It was my doing.” According to Mr. Knapp, Cst. Guan never initiated his searches. Mr. Knapp’s evidence on this issue continued to go back and forth. Later in defence counsel’s cross-examination, a suggested conversation between Mr. Knapp and Cst. Guan was put to Mr. Knapp regarding looking for more disks. This series of questions and answers began with referral to a passage during Mr. Knapp’s preliminary hearing evidence:

Q: … And then just skip the next – to understand that and then you’re asked a question:

“Question: Yeah okay – they’re not there and Guan says well do you know if there’s others around?

And you said yes to Guan when he asked you that or words to that effect. Is that right?

A: Correct.

Q: And then you say to him words to the effect well I’ll go look in effect, right?

A: Yes correct.

Q: And then you agreed yes and then he says okay, correct?

A: Like okay with a question mark.

Q: He says no, okay. You say well I’ll go look and then Guan says to you okay?

A: I guess. I mean I don’t remember word for word what we talked about.

Q: Of course but your memory would – your memory would have been better on May 1^st …

A: Right.

Q: 2014 than it is in January?

A: Right, so. I just don’t understand what your point is?

Q: What I’m saying is, is that you tell Guan they’re not in the filing cabinet. Guan asked you well do you know if there’s any – where they might be and you said well I’ll go look and Guan says okay – yeah go look, correct? Am I right?

A: I guess yes.

Q: And that’s exactly what you did do when he said that?

A: Right I just went to go look.

Q: Yes and then you went and you found these in the cubby hole and you called Guan back, reported back to him later that day?

A: Well I don’t know if it was later that day but I remember reporting back to him letting him know that I found them.

Transcript of Michael Knapp at pp. 59-60.

[16] This uncertainty, this back and forth, is in sharp contrast to the evidence of the police witnesses on this issue. Four officers who had contact with Mr. Knapp testified before me and very directly denied they made any request or direction to Mr. Knapp to do any investigating or to seize any property. Moreover, according to the evidence of Cst. Guan, the officer told Mr. Knapp multiple times not to investigate himself, to let the police do it. Cst. Guan said he first told this to Mr. Knapp during his telephone conversation with Mr. Knapp on January 24, 2013, when Cst. Guan became aware that Mr. Knapp was doing his own investigation.

[17] Mr. Knapp dealt with multiple police officers: Cst. Snyder on the evening of December 30, 2012, when Mr. Knapp gave the police the computer; Sgt. Loebach on January 3, 2013, when Mr. Knapp called the police asking the status of the investigation and was asked to come in to give a statement; Cst. Sweet who took Mr. Knapp’s statement on January 3, 2013, as well as receiving the three disks Mr. Knapp provided; and Cst. Guan who dealt with Mr. Knapp beginning on January 9, 2013. Cst. Guan spoke to Mr. Knapp by telephone on January 9 and 10, 2013, regarding the remaining two disks. On January 24, 2013, Cst. Guan again spoke to Mr. Knapp by telephone when Mr. Knapp called and advised he had a spindle of disks. Then on January 28, 2013, Cst. Guan spoke to Mr. Knapp when Cst. Guan took a statement from Mr. Knapp and the spindle of disks.

[18] I accept the evidence of the police when it conflicts with the evidence of Mr. Knapp. I was particularly impressed with Cst. Guan and his evidence. He was very direct. He came across as a very committed officer. While I find Mr. Knapp’s evidence was honestly given by a well-intentioned person, Mr. Knapp’s memory problems and certain confusion over the details of a series of contacts with various officers over a month period two and one half years ago calls into question the reliability of his evidence when it conflicts with that of the officers in this case. Again, when Mr. Knapp’s evidence conflicts with that of the officer witnesses in this voir dire, I accept the evidence of the officers.

1. Relationship and Living Arrangement

[19] Mr. Knapp is a middle aged man. He was 49 when he gave his evidence and 46 during the events at issue. He lived with his daughter, Michelina, who was 16 at the time of the events in question. Both lived in the house owned by Mr. Machulec in the City of Windsor. The three – Mr. Knapp, his daughter, and Mr. Machulec – had lived together in the house for between two and a half to three years leading up these events. Mr. Knapp and Mr. Machulec had known each other for over 25 years and were close. Mr. Knapp moved in with Mr. Machulec because Mr. Machulec needed assistance getting around after having double knee replacement surgery. Mr. Knapp helped out with Mr. Machulec and did work around the house such as grass cutting, snow removal and repairs.

[20] The house had two levels – the main floor and a basement. Mr. Knapp and his daughter slept in the basement but were not restricted to that area. Indeed, from the evidence it appears the kitchen, bathroom and laundry area all were on the main floor. There was no separate entrance for the basement. There were no stated access restrictions on Mr. Knapp or his daughter. Because of his knees, Mr. Machulec had difficulty with stairs so did not come down to the basement. Mr. Machulec lived on the main floor where his bedroom and separate computer room were located. Although Mr. Knapp had access to all rooms to assist and visit with Mr. Machulec, he acknowledged and respected Mr. Machulec’s privacy in his personal space, Mr. Machulec’s bedroom and computer room.

2. Discovery

[21] According to Mr. Knapp, the events in question began when his daughter came to him while he was in the basement. She told her father that she had gone to Mr. Machulec in his computer room to repay him for a small loan. While there, she saw what Mr. Machulec had on his computer screen, which she described as something like a little girl in pigtails on a park bench being “taken” from behind by an older man. The little girl’s feet were above her head.

[22] Mr. Knapp reported he couldn’t believe it and went upstairs to look. Mr. Knapp went to the computer room where he found Mr. Machulec in front of the computer screen. Mr. Knapp described what he saw on the computer screen as cartoonish-type adult characters performing sex acts on a child. The cartoon characters were very life like, very human like. At the time of the voir dire, Mr. Knapp was unable to particularize the precise acts seen other than saying the child was “going down on the person”, “fondling the adult somehow”, and two women were “taking advantage of a boy”. He estimated the child’s age at between five and six years old. The cartoon contained words to express what was going on. Mr. Knapp could not remember the words but recalled it was “just perverted”. When Mr. Knapp made these observations, he said Mr. Machulec was right in front of the computer “like reading an e-mail or something”. Mr. Knapp had no discussion with Mr. Machulec at that time.

3. Decision of Mr. Knapp

[23] Mr. Knapp decided to take the computer tower to the police. He was upset. In addition to the images he observed, his daughter advised him of other acts she claimed Mr. Machulec committed. Her claims included Mr. Machulec going through her laundry commenting on underwear stains, Mr. Machulec watching her while sunbathing, and Mr. Machulec being around the shower when she was using it. With all these things going on behind his back, Mr. Knapp wondered what else Mr. Machulec was hiding. Mr. Knapp testified that given the images he saw, he wondered what else would be on the computer.

4. Computer Brought to Police – December 30, 2012

[24] On Sunday night, December 30, 2012, at about 11:00 p.m., Mr. Knapp walked into the Windsor Police headquarters and up to the front desk, then manned by Cst. Brad Snyder. According to Cst. Snyder, Mr. Knapp presented him with a computer tower stating there was child pornography on it and it belonged to his roommate, John Machulec. Mr. Knapp testified that he did not remember exactly what he said to the desk officer when he gave the computer tower to the officer, and essentially said there’s something on it that’s not right, that’s pornographic.

[25] Mr. Knapp acknowledged both the privacy and the proprietary interest of Mr. Machulec in the computer. Mr. Knapp admitted the computer was not a shared or communal house computer, was password protected[^1], and its contents were private. Although Mr. Knapp added that Mr. Machulec did not hide what he saw on the computer screen “so it wasn’t too private”. Mr. Knapp admitted that he did not have Mr. Machulec’s permission to take his computer and give it to the police. He conceded that he was aware that Mr. Machulec probably would have denied permission for Mr. Knapp to take his computer to the police “[b]ecause then he’d [Machulec] be in trouble….”

[26] Cst. Snyder knew the computer did not belong to Mr. Knapp, that it belonged to another, namely Mr. Machulec. The officer repeatedly asked Mr. Knapp how he got the computer and received the non-responsive answer of, “it was time to do the right thing”. Mr. Knapp never advised the officer that he had Mr. Machulec’s permission to deliver the computer. Cst. Snyder obtained Mr. Knapp’s contact information but not a statement.

[27] Mr. Knapp had no prior contact with the police prior to bringing the computer to them. He did it on his own. No one told Mr. Knapp or directed him to do it. On this issue, there was no contrary evidence presented at the voir dire.

5. Police Kept Computer

[28] Cst. Snyder did not look at anything on the computer but he did take it. Cst. Snyder put evidence seals on the computer, affixed an evidence tag on it, put it in an evidence locker, and wrote a report on the event. The matter was assigned a case number. The officer agreed with the defence suggested language, he “seized” the computer.

[29] According to Cst. Snyder, he had never had a computer tower surrendered to him before. When asked why he kept the computer, Cst. Snyder responded, “the information that I had received from Mr. Knapp was that there was … child pornography on it and I wouldn’t think it would be prudent to return it to anyone. I mean if there was evidence of a criminal offence it was in the right hands of the police.” On cross examination, Cst. Snyder admitted he had nothing more than Mr. Knapp’s opinion that it was child pornography. The officer did not recall questioning Mr. Knapp about how Mr. Knapp knew there was child pornography on the computer. Cst. Snyder never had met Mr. Knapp before.

[30] Cst. Snyder said he never asked or directed Mr. Knapp to do any investigation or to seize anything.

[31] Cst. Snyder never filed a report to a justice regarding this taking of the computer.

6. Initial Investigation – January 3, 2013

a) Police system

[32] The Windsor Police Service maintained an electronic data storing system. All reports were stored electronically. After an initial report was made and filed, it was reviewed electronically by the patrol staff sergeant. Upon review, the staff sergeant forwarded the report to the appropriate unit for investigation. With regard to child pornography cases, the appropriate investigative unit was called the Internet Child Exploitation Unit or “ICE.”

[33] In December, 2012, and January, 2013, Gregory Loebach was one of two sergeants in the ICE unit[^2]. The other sergeant, however, was away on paternity leave. A sergeant of the unit made daily electronic checks to learn if any case had been forwarded to the ICE unit.

b) Knapp call

[34] On Thursday morning, January 3, 2013, at about 8:10 a.m., Mr. Knapp called into the ICE unit and spoke with Sgt. Loebach. Mr. Knapp wanted to know the status of his case and quoted a case number. Sgt. Loebach was not aware of the case. The sergeant found the initial report and read it. He found the report in his queue of cases forwarded to the ICE unit. He did not know how long the report had been in his electronic queue. The case had not been assigned to an investigator.[^3]

[35] According to the report, Mr. Knapp believed there was child pornography on a computer tower he had turned in. The computer was owned by a Mr. Machulec. Seeing there was no statement taken, Sgt. Loebach asked Mr. Knapp to come in and give a statement. From experience, Sgt. Loebach testified sometimes people believe an image is child pornography when it is just child nudity.

[36] Sgt. Loebach did not ask Mr. Knapp to investigate for the police, or to seize any evidence. Nor did Mr. Knapp offer to be an investigator.

c) Machulec call

[37] About an hour after the call from Mr. Knapp, specifically at 9:05 a.m. on Thursday morning, January 3, 2013, Mr. Machulec called the police and spoke with Sgt. Loebach. Mr. Machulec said his computer had been turned into the police and wondered what was going on with it. This telephone conversation between Sgt. Loebach and Mr. Machulec also included discussion regarding the contents on the computer. Mr. Machulec admitted there were cartoons on his computer depicting sex between father/daughter and mother/son with the age of the children between seven or eight years. He told Sgt. Loebach that he did not believe they were child pornography because they were cartoons.

d) Case assigned to Cst. Guan

[38] According to Sgt. Loebach, the investigation was at its infancy. The police had possession of a computer with an unconfirmed report that it contained child pornography. After receipt of these two telephone calls on January 3, 2013, Sgt. Loebach assigned the case to Cst. Liyu Guan. Sgt. Loebach did not remember the exact day of assignment but testified it would have been that day or the next day. According to the sergeant, an investigation had to be conducted to determine whether there was child pornography on the computer. Until that was determined, Mr. Machulec would not get his computer back.

e) End of Sgt. Loebach’s involvement

[39] After speaking with both Mr. Knapp and Mr. Machulec, directing a police statement from Mr. Knapp, assigning Cst. Guan to the case, and writing reports, Sgt. Loebach’s involvement in this case ended. The sergeant did not file any return to a justice nor did he direct Cst. Guan to do so. Sgt. Loebach acknowledged that a return should be done but stated that the task is the responsibility of the officer in charge, in this case Cst. Guan, who is highly trained and very competent.

f) Knapp police statement

[40] At the direction of his staff sergeant, Cst. Ajay Sweet took a police statement from Michael Knapp beginning at 11:40 a.m. on Thursday morning, January 3, 2013, concerning an ongoing child pornography investigation. The statement was taken on a computer at the front desk of the Windsor Police headquarters. Mr. Knapp told Cst. Sweet what he had seen on the computer that he turned in. Mr. Knapp gave a detailed description of high quality cartoon or computer generated people engaged in sex with children, including an adult female giving oral sex to a boy between 5 and 11 years of age.

[41] Cst. Sweet never saw Mr. Knapp before that day. The officer never told Mr. Knapp to get more disks or to keep investigating.

7. Knapp Brought Three Disks – January 3, 2013

[42] At the Thursday morning, January 3, 2013, police statement, Mr. Knapp also brought three disks which he provided to Cst. Sweet. The officer did not see what was on the disks. At the voir dire, the officer recalled that Mr. Knapp said he got disks belonging to Mr. Machulec from a filing cabinet but did not recall if Mr. Knapp said he looked at them. According to the evidence of Cst. Guan, Mr. Knapp’s January 3 statement included a description of the three disks provided to Cst. Sweet. The disks were labeled Young Boys Plus Girls, Young Girls & Boys, and Young Boys Plus Girls with Adults. Mr. Knapp described the adult/child sex images he saw on the disks which included touching of sexual parts. Mr. Knapp estimated the age of the children at between 5 and 11 years of age. Mr. Knapp said he took five disks from Mr. Machulec’s cabinet before he came to give the statement.

[43] Cst. Sweet put the three disks into a property bag and logged them into the property room. He wrote a report which included the taking of these disks. He viewed his role as completed. He did not file a report to a justice for his taking of the three disks. Cst. Sweet admitted being trained to file a report to a justice upon the seizure of evidence. He also admitted that such a filing is neither complicated nor time consuming. He offered no reason for not filing a report in this case.

8. Knapp Investigation

[44] As stated by Mr. Knapp, “I did a little investigating myself. I had a feeling something was up obviously that I was not aware of obviously. I feel bad about that still to this day.” This investigation was after December 30. When Mr. Machulec was at work, Mr. Knapp looked around to see what Mr. Machulec was hiding. Mr. Knapp looked in Mr. Machulec’s open filing cabinet in the computer room. He went through it and noticed disks with “weird” titles like mothers and fathers and daughters. He also found some nude pictures of his ex-wife, which upset him. Mr. Knapp took 3, 4 or 5 disks and looked at them. Mr. Knapp testified that he saw the “same type of disgusting weird stuff.” He described them as “just very, very pornographic type of photos of young children, adults doing sexual acts towards one another.” Mr. Knapp gave an age estimate of five or six years. He described the sex acts as weird positions including sodomy and oral sex. He subsequently gave these disks to the police.

[45] Mr. Knapp testified that the police never directed or asked him to do any investigation. He did it because he felt he had to. “It was my responsibility to find out what was going on, especially this going on behind my back all this time ….”

9. Guan Investigation

[46] Cst. Guan testified his involvement in the case began on Monday, January 7, 2013, when he was assigned the case on that date by Sgt. Loebach. On that date he reviewed Cst. Snyder’s original report of December 30, 2012, Sgt. Loebach’s report including the admissions by Mr. Machulec over the telephone on January 3, 2013, Cst. Sweet’s statement from Mr. Knapp on January 3, 2013, and Cst. Sweet’s report on the seizure of the three disks from Mr. Knapp.

[47] On January 9, 2013, Cst. Guan was notified that Mr. Machulec had called regarding the status of the investigation. Cst. Guan called Mr. Machulec and left a message. Mr. Machulec called Cst. Guan back the same day at about 1:35 p.m. Mr. Machulec asked how his computer got into police custody. Cst. Guan did not answer the question but advised Mr. Machulec that the case was under investigation. Mr. Machulec then proceeded to tell Cst. Guan that he always turned his computer off when he went to work, it did not have a password, and at times he would return home finding his computer on. By this explanation, Mr. Machulec suggested that it was possible someone else put the images on his computer. Cst. Guan agreed that such is possible but reminded Mr. Machulec of his earlier telephone conversation with Sgt. Loebach when he admitted the presence of cartoon-like images of seven or eight year old children having sex with adults. Mr. Machulec said yes, but it was not real. Cst. Guan then advised Mr. Machulec that cartoon images of sex between children and adults is still child pornography under the law. Mr. Machulec responded that he did not know that. Cst. Guan ended the conversation by advising Mr. Machulec he would be notified at the end of the investigation.

[48] Cst. Guan called Mr. Knapp at 3:05 p.m. on the same day, January 9, 2013. This was the first time Cst. Guan had spoken with Mr. Knapp. Cst. Guan asked Mr. Knapp to clarify his statement to Cst. Sweet – Mr. Knapp said he took five disks but only turned over three disks to the police. Mr. Knapp said he only reviewed the three disks he gave to the police but had not reviewed the other two disks. Mr. Knapp told Cst. Guan he still had possession of the two disks and was willing to give them to the police. Cst. Guan told Mr. Knapp he would contact him. Cst. Guan was trying to decide whether to include the two disks in the search warrant request he was preparing.

[49] Cst. Guan testified that he did not direct or ask Mr. Knapp to do any investigating or to take any other disks. Cst. Guan said he did not even ask Mr. Knapp what else he saw.

[50] The following morning, January 10, 2013, Cst. Guan called Mr. Knapp at around 9:30 a.m. Mr. Knapp answered affirmatively when Cst. Guan asked if Mr. Knapp still had the two disks. Cst. Guan then asked Mr. Knapp if he remembered the labels on the disks. Mr. Knapp responded that he sealed the two disks in an envelope but he remembered one label as being similar to either Man and Young Boys or Man and Young Girls. The label on the other disk was something like Teenage. Mr. Knapp further stated that the disks were found in Mr. Machulec’s filing cabinet with the other three disks. By these questions, Cst. Guan was attempting to determine whether the two disks contained child pornography both for their possible inclusion in the search warrant ITO he was preparing and for the appropriateness of Mr. Knapp’s continued possession of them.

[51] Upon concluding this call with Mr. Knapp, Cst. Guan sent a patrol unit to Mr. Knapp’s house to retrieve the two disks from Mr. Knapp. Cst. Guan specifically instructed the officer, Cst. Merlo, not to enter the house but rather to meet Mr. Knapp outside the house and obtain the disks. At approximately 10:55 a.m. on that day, Cst. Merlo attended the ICE unit and provided Cst. Guan with a sealed brown envelope. Cst. Guan opened the envelope and found two disks labeled, “Men with Girls” and “Teenage Sex”. Cst. Guan put the disks in an evidence bag, sealed it, and placed the bag into the property room. Cst. Guan did not look at the contents on the two disks.

[52] At this time, Cst. Guan had spoken to Mr. Knapp twice but had not met him. Cst. Guan did not direct or tell Mr. Knapp to investigate on behalf of the police or to see if he (Mr. Knapp) could find anything else.

[53] Cst. Guan did not make a report to a justice for the computer, the first three disks, or the subsequent two disks before the search warrant. Regarding the computer and the three disks, Cst. Guan noted they were seized by others and he did not know whether reports were done. Regarding the two disks obtained at his direction, he did not file a report because he was including the two disks on his search warrant request so he believed it would be redundant to do two different returns. Cst. Guan admitted he should have checked to see whether reports had been done regarding the computer and the three disks but did not. Other than being busy, Cst. Guan offered no excuse for the absence of reports. The parties agreed at the voir dire that no reports to a justice were filed in this case before the search warrants.

10. Search Warrant #1 – January 17 and 21, 2013

[54] On Thursday, January 17, 2013, Cst. Guan presented his ITO for a search warrant for the contents of the computer and five disks all in the possession of the police. A search warrant was signed by Justice of the Peace Nielson on the same day. It was executed by Cst. Guan on Monday, January 21, 2013, beginning at approximately 10:37 a.m. Cst. Guan reviewed images contained on the computer and on the five disks and found child pornography on all. Cst. Guan briefly described what he saw at the voir dire. Cst. Guan submitted the report to the justice on Friday, January 25, 2013.

[55] The ITO, search warrant, and report to the justice for this warrant were entered as exhibits on the voir dire.

a) ITO

[56] On Thursday, January 17, 2013, Cst. Guan swore to an Information to Obtain a Search Warrant. More specifically, Cst. Guan sought to search the computer tower and five disks, located in the police property room, for evidence of the crimes of accessing and possessing child pornography by John Machulec between December 21, 2012 and January 3, 2013.

[57] As grounds, Cst. Guan included a 15 page Appendix “C” detailing the police investigation from December 30, 2012, when Mr. Knapp brought the computer to the police, to January 3, 2013, when Mr. Knapp provided his statement to the police and gave the police three disks, and to January 10, 2013, when Mr. Knapp turned over two more disks. The grounds were based on the reports of Cst. Snyder, Sgt. Loebach, and Cst. Sweet, Mr. Knapp’s police statement, and Cst. Guan’s own investigation, which included communications with Mr. Knapp and Mr. Machulec. Cst. Guan specifically included Mr. Knapp’s detailed sex act descriptions of what he saw as well as Mr. Machulec’s descriptions of the contents on his computer to both Sgt. Loebach and himself.

[58] Part F of Appendix “C” described, for the issuing court, the intended forensic analysis of the computer and the disks in order to retrieve the pictures and videos sought.

b) Search Warrant

[59] Predicated on Cst. Guan’s ITO, Justice of the Peace Nielson issued a Warrant to Search the computer and five disks on Thursday, January 17, 2013. The warrant authorized the search between the hours of 9:00 a.m. and 4:00 p.m. on January 21, 2013.

[60] The search warrant is a Form 5 with the blanks filled in. The place identified is the police property room in which will be found the computer and five disks. Those items are sought “as evidence in respect to the commission, suspected commission or intended commission” of certain named child pornography crimes committed in the past.

c) Execution of Search Warrant

[61] The search warrant was executed by Cst. Guan on Monday, January 21, 2013, beginning at approximately 10:37 a.m. Cst. Guan reviewed images contained on the computer and on the five disks. He found child pornography on the computer and all five disks.

d) Report to a Justice

[62] On Friday, January 25, 2013, Cst. Guan filed a report to a justice for the computer and five disks searched and seized pursuant to the search warrant of January 17, 2013. On January 30, 2013, Justice of the Peace Nielson ordered their detention until April 21, 2013, “or, if charges have been laid before that date, until the completion of all proceedings.”

11. Guan Investigation Continued

[63] On Thursday, January 24, 2013, at about 10:30 a.m., Cst. Guan received a telephone call from Mr. Knapp. Mr. Knapp inquired about the status of the investigation and advised Cst. Guan that he (Mr. Knapp) had 30 to 40 more disks on a spindle belonging to Mr. Machulec. Mr. Knapp said he believed they contained child pornography but he had not looked at them. Cst. Guan asked Mr. Knapp whether he could come to the police station to give a statement and provide the disks to the police. Mr. Knapp said he would but needed transportation. Subsequently, the interview was scheduled for January 28, 2013.

[64] On Monday, January 28, 2013, at about 9:05 a.m., Cst. Guan and another officer picked up Mr. Knapp at his house and drove him to the police station. Mr. Knapp brought the spindle of disks with him. A statement was taken from Mr. Knapp starting at about 9:57 a.m. The spindle of approximately 50 disks was taken by the police from Mr. Knapp following the statement.

[65] Cst. Guan testified that during this statement, the recording of which now is lost, Mr. Knapp repeated what he had told Cst. Sweet in his earlier statement but added that he (Mr. Knapp) learned that Mr. Machulec had a secret compartment in Mr. Machulec’s bedroom where he believed there were more disks containing child pornography. Mr. Knapp said he found the spindle of disks in the same file cabinet of Mr. Machulec where the other disks were found. Mr. Knapp told Cst. Guan he had the spindle of disks for a few weeks and was willing to provide them to the police. Mr. Knapp learned about the secret compartment some years before when Mr. Machulec told Mr. Knapp about it while Mr. Machulec was drunk.

[66] At the end of the statement, Mr. Knapp turned over the spindle of disks to Cst. Guan at about 1:50 p.m. Cst. Guan did not count how many disks were on the spindle but it held 50. Cst. Guan did not open the spindle. Rather, he sealed it in an evidence bag and placed it in an evidence locker. According to Cst. Guan, his intention was to obtain a search warrant to look at its contents. Cst. Guan stated that he believed this spindle of disks belonged to Mr. Machulec and was taken by Mr. Knapp. Cst. Guan believed there was child pornography on these disks.[^4] Cst. Guan was not giving the spindle of disks back to Mr. Machulec until it was determined there was no child pornography on it.

[67] Cst. Guan did not file a report to a justice for this warrantless taking of the spindle of disks.

[68] Cst. Guan testified he never asked or directed Mr. Knapp to seize any evidence or do any investigation. Cst. Guan said he (Cst. Guan) specifically told Mr. Knapp not to investigate or seize things – that such conduct could make the case more complicated. Cst. Guan denied ever intimating that it would be okay for Mr. Knapp to investigate or take Mr. Machulec’s property.

12. Search Warrant #2 – January 28, 2013

[69] On Monday, January 28, 2013, Cst. Guan presented his ITO for a search warrant for the home of both John Machulec and Michael Knapp. A search warrant was signed by Justice of the Peace Hurst on the same day. It was executed by Cst. Guan and other officers the next day, Tuesday, January 29, 2013. Cst. Guan submitted the report to the justice on Wednesday, January 30, 2013.

[70] The ITO, search warrant, and report to the justice for this warrant were entered as exhibits on the voir dire.

a) ITO

[71] On Monday, January 28, 2013, Cst. Guan swore to an Information to Obtain a Search Warrant. Cst. Guan sought to search Mr. Machulec’s home for evidence of the crimes of accessing and possessing child pornography by John Machulec between December 21, 2012 and January 3, 2013. Primarily, Cst. Guan sought computer equipment and data storage devices to forensically examine for the presence of child pornography.

[72] As grounds, Cst. Guan included an 18 page Appendix “C” detailing the police investigation from December 30, 2012. The first eight paragraphs in the Investigation section of Part D essentially repeated the same paragraphs found in Cst. Guan’s January 17 ITO. The new material, beginning at paragraph 9, started with the submission and execution of Search Warrant #1. Thereafter Cst. Guan specifically identified the detailed child sex acts he saw when previewing the contents of the computer and the five disks. Then Cst. Guan recounted the information received from Mr. Knapp regarding the secret compartment and more disks on January 24 and 28, 2013.

[73] Part F of Appendix “C” described, for the issuing court, the intended forensic analysis of the computer and the disks to retrieve the pictures and videos sought.

b) Search Warrant

[74] Predicated on Cst. Guan’s ITO, Justice of the Peace Hurst issued a Warrant to Search the home of Mr. Machulec on Monday, January 28, 2013. The warrant authorized the search between the hours of 8:00 a.m. and 6:00 p.m. on January 29, 2013.

[75] The search warrant is a Form 5 with the blanks filled in. The place identified is the dwelling house of John Machulec at 1175 Stanley Street, Windsor. The items are being sought “as evidence in respect to the commission, suspected commission or intended commission” of identified child pornography crimes committed in the past.

c) Execution of Search Warrant

[76] The search warrant was executed by Cst. Guan and other police officers on Tuesday, January 29, 2013. A number of items were seized, mostly data storage devices of various types.

d) Report to a Justice

[77] On Wednesday, January 30, 2013, Cst. Guan filed a report to a justice for the various items seized pursuant to the search warrant of January 28, 2013. On February 5, 2013, Justice of the Peace Renaud ordered their detention until April 15, 2013, “or, if charges have been laid before that date, until the completion of all proceedings.”

13. Search Warrant #3 – February 4, 2013

[78] On Monday, February 4, 2013, Cst. Guan presented his ITO for a search warrant for the contents of the spindle disks in the possession of the police. A search warrant was signed by Justice of the Peace Debacker on the same day. It was executed by Cst. Guan and other officers the next day, February 5, 2013. Cst. Guan submitted the report to the justice on Tuesday, February 5, 2013.

[79] The ITO, search warrant, and report to the justice for this warrant were entered as exhibits on the voir dire.

a) ITO

[80] On Monday, February 4, 2013, Cst. Guan swore to an Information to Obtain a Search Warrant. Cst. Guan sought to search a spindle of disks located in the police property room for evidence of the crimes of accessing and possessing child pornography by John Machulec between December 21, 2012 and January 3, 2013.

[81] As grounds, Cst. Guan included an 18 page Appendix “C” detailing the police investigation from December 30, 2012. The first 13 paragraphs in the Investigation section of Part D essentially repeated the same paragraphs found in Cst. Guan’s January 28 ITO. The new material, beginning at para.14, began with the January 28, 2013 interview with Mr. Knapp. Cst. Guan thereafter averred he was given the spindle and noted the label of the first visible disk, “Mom and Son, striper Mom”.

[82] Part F of Appendix “C” described, for the issuing court, the intended forensic analysis of the disks on the spindle to retrieve the pictures and videos sought.

b) Search Warrant

[83] Predicated on Cst. Guan’s ITO, Justice of the Peace Debacker issued a Warrant to Search the spindle of disks located in the police property room on Monday, February 4, 2013. The warrant authorized the search between the hours of 9:00 a.m. and 4:00 p.m. on the following day, February 5, 2013.

[84] The search warrant is a Form 5 with the blanks filled in. The place identified is the police property room in which will be found the spindle of disks. The items are being sought “as evidence in respect to the commission” of identified child pornography crimes committed in the past. The form’s words, “suspected commission or intended commission” were crossed out by Justice of the Peace Debacker.

c) Report to a Justice

[85] On Tuesday, February 5, 2013, Cst. Guan filed a report to a justice for the spindle and disks seized pursuant to the search warrant of February 4, 2013. On February 19, 2013, Justice of the Peace Hoffman ordered their detention until May 4, 2013, “or, if charges have been laid before that date, until the completion of all proceedings.”

ISSUES

[86] The following issues will be addressed:

Warrantless Seizures

1. Were They Section 8 seizures?
2. Were the Warrantless Seizures Unreasonable?
3. Was Mr. Knapp Acting as a Police Agent?
4. Were the Police Acting Unlawfully by Taking the Disks?
5. Were Failed Filings of Reports to a Justice Section 8 Violations?

Warranted Searches

1. Is There Any Branton Error?
2. Does the ITO Set Forth Reasonable Grounds to Believe the Object Things Will be Found in the Place to be Searched?
3. Does the ITO Provide Sufficient Specificity of the Things to be Seized?

WARRANTLESS SEIZURES

[87] Warrantless seizures are presumed to be unreasonable: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 14 C.C.C. (3d) 97, at pp. 109-110. Thus the Crown, the party seeking to rebut this presumed unreasonableness, bears the onus: see Hunter.

1. Were They Section 8 Seizures?

[88] The defence argued that whenever the police take property in which a person has a privacy interest it is a s. 8 seizure. Thus, said the defence, because Mr. Machulec had a privacy interest in his personal property, the computer tower and disks, all four of the police takings were s. 8 seizures.

[89] The Crown conceded that the takings by the police of Mr. Machulec’s computer and disks were s. 8 seizures. Although I agree, the importance of the issue requires further analysis.

a) Governing Principles

[90] The protections afforded by s. 8 of the Charter include both from unreasonable seizures as well as from unreasonable searches. The provision is worded in the disjunctive: “Everyone has the right to be secure against unreasonable search or seizure” (emphasis added).

[91] What exactly is a s. 8 seizure? To answer this question, we first must understand the purpose of s. 8, which is “to protect individuals from unjustified state intrusions upon their privacy”: see Hunter, at p. 109. Thus, a s. 8 seizure is “a non-consensual taking of an item by the state in respect of which the citizen has a reasonable expectation of privacy: see R. v. Dyment … [1988] 2 S.C.R. 417 [at para. 26]”; R. v. Borden, [1994] 3 S.C.R. 145, [1994] S.C.J. No. 82, 92 C.C.C. (3d) 404, at p. 415. More recently, the Supreme Court has defined a s. 8 seizure in slightly different language: “a taking is a seizure where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access ….”: see R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, [2012] S.C.J. No. 53, at para. 34.

[92] It is clear, therefore, that not all non-consensual takings by the state are s. 8 seizures. Only state takings of something over which a person has a reasonable privacy interest are s. 8 seizures.

[93] Whether a person has a reasonable privacy interest in something is determined contextually, on the totality of the circumstances. Before the ubiquity of high speed internet and “smart” devices, the general factors considered were:

1. presence at the time of the search;
2. possession or control of the property or place searched;
3. ownership of the property or place;
4. historical use of the property or item;
5. the ability to regulate access over the item or to the property;
6. the existence of a subjective expectation of privacy; and
7. the objective reasonableness of the expectation.

R. v. Edwards, [1996] 1 S.C.R. 128, 104 C.C.C. (3d) 736, [1996] S.C.J. No. 11, at para. 45.

[94] Now, in the more advanced information age, there are added considerations. Searches of personal computers are considered very high invasions of privacy. Indeed, the Supreme Court stated, “it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer”: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, 252 C.C.C. (3d) 273, at para. 105.

[95] There is a recognized distinction, however, between the seizure of the physical computer and the search of the information within the computer. The privacy interests obviously are different: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, [2013] S.C.J. No. 60; R. v. Butters, 2014 ONCJ 228, 311 C.C.C. (3d) 516, [2014] O.J. No. 2159, at para. 25. “[T]he material privacy interest with respect to a computer is not in the physical tower. It rests in the information stored in the computer”: Butters, at para. 35.

[96] As a consequence, recent cases have noted a difference in permissible police conduct toward the physical computer itself and the information stored therein. In Cole, the case dealing with the constitutionality of a search or seizure of a work-place computer, the court said at para. 65, “The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained.” In Vu, the court at para. 49 said, “If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search, however, they must obtain a separate warrant.” In Butters, at para. 28, a computer repair shop case, Justice Paciocco, after declaring the police search of the computer images at the repair shop to be a s. 8 violation, stated, “The computer tower should have been seized and a search warrant secured before it was examined.”

b) Principles Applied

[97] Here we have a citizen giving the police private property of another while asserting that it contains contraband, specifically child pornography. Is the acceptance by the police a s. 8 seizure?

[98] Not all takings by the police are s. 8 seizures. An unattended suitcase in a public place, lost or stolen property, or a deserted vehicle, are all examples of property which commonly come into the possession of the police but which, at least as to the initial taking, are not s. 8 seizures. This is because the initial taking had the express or implied consent of the owner or because, at the time of the taking, there was no reasonable expectation of privacy under the circumstances. However, a police investigation after this initial taking, if it involves opening the object taken, may constitute a s. 8 search if the items reviewed by the police have a reasonable privacy interest: see R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, [2002] S.C.J. No. 10 (contents of stolen safe recovered by police). Although the existence of a reasonable privacy interest does not eliminate the obligation of the police to investigate crime, it does place limits on the means employed by the police to do their investigation: see Law, at para. 19.

[99] The initial delivery of the computer by Mr. Knapp to the desk officer at the police station was unannounced and unexpected. The desk officer, Cst. Snyder, responded to Mr. Knapp seriously. The officer took the computer, opened a police case number, sealed the computer, affixed it with an evidence tag, and put the computer into police property for further investigation. The officer was aware the computer belonged to another.

[100] Did Mr. Machulec have a privacy interest in the computer given to the police by Mr. Knapp? It is undisputed that Mr. Machulec had a well-recognized privacy interest in the information stored in the computer: see Morelli, at para. 105. But did he have a privacy interest in the physical tower itself? This question must be resolved contextually. Mr. Machulec was the owner of the property. He had sole possession and exclusive use of it. It was taken from Mr. Machulec’s home, without his knowledge or consent, by a friend and roommate, Mr. Knapp. Perhaps of greatest importance, his computer is the necessary gateway to the access of unquestioned private information of Mr. Machulec. Thus, a computer or a disk is functionally different from a diamond or a lamp which normally do not provide access to additional, private information.

[101] The fact that the physical computer itself has a significantly less privacy interest than the information contained therein does not necessarily mean the person has no privacy interest in the tower itself. Indeed, the issue here is not whether there was a low or high expectation of privacy, the issue is whether there was any reasonable expectation of privacy, even though it may be low: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, at paras. 21-24. A diminished expectation of privacy, if reasonable, is still protected by s. 8: see Cole, at para. 9.

[102] I find that Mr. Machulec did have a privacy interest in the physical computer, albeit lower than in the computer contents. I find that this expectation was reasonable and thus protected by s. 8. I make the same findings with regard to the disks subsequently delivered. Thus, I find there were s. 8 seizures when the police took the computer and the disks from Mr. Knapp under the circumstances of this case.

2. Were the Warrantless Seizures Unreasonable?

[103] The defence asserts that all four of the warrantless seizures were in violation of s. 8 because none were authorized by law. According to the defence, the police should not have accepted any of the items from Mr. Knapp. In his written and oral submissions, the defence eliminates possible sources of lawful authority essentially saying: 1) there was no consent by Mr. Machulec; 2) there were no exigent circumstances because there was no exigency and there were no grounds to obtain a warrant; 3) the Waterfield Doctrine does not apply because each seizure was neither necessary nor reasonable; and 4) there was no s. 489 “plain view” seizure because the objects seized were not readily apparent to be criminal.

[104] Given the facts, the Crown does not claim any consent. Nonetheless, the Crown argues the lawfulness of all the warrantless seizures. Principally, the Crown asserts there were reasonable grounds for each seizure, thus making each lawful under both exigent circumstances and s. 489(2)(b) and (c).

[105] Although the focus of the argument was on the initial seizure of the computer, the lawful authority of the police to seize all of the items, including the disks, must and will be analyzed.

a) Governing Principles

[106] Not all warrantless s. 8 seizures are contrary to the section; only those seizures that are unreasonable breach s. 8. A warrantless search will be reasonable if: 1) the search was authorized by law, 2) the authorizing law was reasonable, and 3) the seizure was conducted in a reasonable manner: see R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, [1987] S.C.J. No. 15, at para. 23. Once the accused establishes the search warrantless, the burden of proof shifts to the Crown to prove the warrantless search reasonable on a balance of probabilities: see Collins, at para. 22.

[107] Here the seizures were warrantless and are challenged as unreasonable because the police lacked lawful authority to make the seizures. There are three possible sources of lawful authority: 1) statutory authority pursuant to s. 489(2)(b) & (c) of the Criminal Code, 2) statutory exigent circumstances, and 3) common law authority under the Waterfield Doctrine. Each will be reviewed.

1) Statutory Authority – s. 489(2)(b) & (c)

[108] The Crown advances s. 489(2)(b) and (c) as lawful authority for the police to make the seizures in question.

[109] The pertinent parts of s. 489(2)(b) and (c) are as follows:

Every peace officer … who is lawfully present in a place … in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[110] A municipal police officer is a “peace officer” for purposes of the Criminal Code of Canada, S.2 “peace officer”(c).

[111] Section 489(2) is a seizure provision, not a search provision. It does authorize police to seize items when the officer is at a place lawfully and has reasonable grounds to believe the item has been used in a crime or is evidence of a crime: see R. v. L.F. (2002), 166 C.C.C. (3d) 97, [2002] O.J. No. 2604, at para. 27 (Ont. C.A.); R. v. Jones, 2011 ONCA 632, 278 C.C.C. (3d) 157, [2011] O.J. No. 4388, at para. 73.

[112] Whether an officer has “reasonable grounds” is made from a consideration of the totality of the circumstances before the officer making the decision: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, at paras. 21-22. There are both a subjective and an objective component to this threshold. The officer must subjectively believe s/he has reasonable grounds plus said belief must be objectively reasonable: see R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 311, [1990] S.C.J. No. 12, at paras. 16-18.

2) Statutory Exigent Circumstances

[113] Section 487.11 does provide statutory authority for warrantless search and seizure in limited circumstances. This section provides, in pertinent part, as follows:

A peace officer … may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) [subsection (d) of which authorizes search and seizure] … 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.

[114] Thus, s. 487.11 authorizes warrantless searches and seizures by police officers, in the course of their duties, if two conditions are present. First, the grounds for obtaining a search warrant exist. And second, it is impracticable to obtain a search warrant because of “exigent circumstances”.

[115] Regarding the first element, the grounds to obtain a search warrant must exist at the time. Most importantly, there must be reasonable grounds to believe that a crime has been committed and the search or the seizure will afford evidence of that crime.

[116] With regard to the second element, there is no statutory definition of “exigent circumstances” for s. 489.11. There is, however, a statutory definition of “exigent circumstances” for a similar provision, the warrantless entry into a home. Section 529.3(2), provides:

For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

[117] This section provides authority for a warrantless search or seizure when there is a risk of imminent loss or destruction of evidence as long as the police have reasonable grounds for a search warrant but no time to obtain one: see R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, [2011] O.J. No. 4159, at paras. 24-29.

3) Common Law Authority – the Waterfield Doctrine

[118] The Waterfield test for determining whether a police officer had common law authority for his/her conduct is now well established: see Kelsy, at para. 39. It originated in an English Court of Criminal Appeal opinion by Ashworth J. in R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164. In Canada, the test was most notably adopted by Le Dain J. in R. v. Dedman, [1985] 2 S.C.R. 2, 20 C.C.C. (3d) 97, [1985] S.C.J. No. 45, at para. 66, who said Waterfield “laid down the test for the existence of police powers at common law, as a reflection of police duties ….” LeDain J. thereafter quoted Waterfield:

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

Dedman, at pp. 119-120.

[119] Thus, where the officer’s conduct interferes with a person’s liberty or property, two questions must be considered: 1) did the officer’s conduct fall within the scope of any duty imposed by statute or recognized at common law? And 2) if so, did the officer’s conduct involve the justifiable use of powers associated with that duty?

[120] Over time, the Supreme Court has applied and refined the Waterfield test in different contexts: R.I.D.E. program stops (Dedman), search incident to arrest (Cloutier v. Langlois, [1990] 1 S.C.R. 158, 53 C.C.C. (3d) 257, [1990] S.C.J. No. 10); 911 calls (R. v. Godoy, [1999] 1 S.C.R. 311, 131 C.C.C. (3d) 129, [1998] S.C.J. No. 85); investigative detention (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49; and R. v. Clayton, 2007 SCC 32, 220 C.C.C. (3d) 449, [2007] S.C.J. No. 32), and sniffer dogs (R. v. Kang-Brown 2008 SCC 18, [2008] 1 S.C.R. 456, [2008] S.C.J. No. 18).

[121] At the first step, the court must decide whether the officer’s conduct fell within the scope of any duty imposed by statute or recognized at common law.

[122] With regard to duties imposed by statute in Ontario, s. 42 of the Ontario Police Services Act, R.S.O. 1990, c. P.15, provides, in pertinent part, as follows:

42(1) The duties of a police officer include,

(b) preventing crimes and other offences …;

(d) apprehending criminals and other offenders …;

(e) laying charges, prosecuting and participating in prosecutions;

(3) A police officer has the powers and duties ascribed to a constable at common law.

[123] With regard to recognized common law police duties, in Dedman, Le Dain J. stated, “It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property … [citations omitted]”: see Dedman, at para. 65.

[124] As stated by Binnie J. in Kang-Brown, at para. 52, “It cannot be controversial that police have a duty to solve crimes and bring the perpetrators to justice.”

[125] At the second step, the court must decide whether the officer’s conduct involved the justifiable use of powers associated with that duty.

[126] Le Dain J. advanced a “reasonably necessary” test as follows:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with the importance of the public purpose served by the interference.

Dedman, at para. 69.

[127] Subsequently, this assessment was advanced by the adoption by the Supreme Court in Godoy of the following analysis of Doherty J.A. in R. v. Simpson (1993), 79 C.C.C. (3d) 482, [1993] O.J. No. 308, at para. 55 (Ont. C.A.):

… the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with the individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

Godoy, at para 18. Each assessment must be considered in its own context based on the totality of the circumstances: see Godoy, at paras. 22-23.

[128] In Mann, an investigative detention case where a person’s liberty was at issue, Iacobucci J., for the majority, articulated this assessment as a balancing “between the competing interests of the police duty and of the liberty interests at stake: see Mann, at para. 26. Subsequently, Arbour J. in Clayton urged caution “to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public”: see Clayton, at para. 26.

[129] In the investigative detention context, the Supreme Court, again adopting portions of the opinion of Doherty J. in Simpson, concluded that a standard of “reasonable grounds to detain” applies rather than the higher standard necessary for arrest, reasonable and probable grounds: see Mann, at paras. 27-35. The detention must be “reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence”: see Mann, at para. 34. Thereafter, the overall reasonableness of the detention must be balanced in the context of all the circumstances: see Mann, at para. 34.

[130] With regard to a search incident to an investigative detention, the Supreme Court recognized such a police power pursuant to the Waterfield test: see Mann, at para. 38. However, this power is limited and permissible only when reasonably necessary to protect life or safety: see Mann, at para. 40. In sum, “where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual”: see Mann, at para. 45.

[131] In Kang-Brown, a sniffer dog search case, the court split into four separate opinions: LeBel J. (with three other justices), Kang-Brown, at paras. 1-17; Binnie J. (with one other justice), Kang-Brown, at paras. 18-105; Deschamps J. (with one other justice), Kang-Brown, at paras. 106-211; and Bastarache (alone), Kang-Brown, at paras. 212-256. In this case the police stopped and questioned a traveller in a public bus station. During the questioning, the officers called over a dog trained to alert to the presence of narcotics. When the dog alerted on the traveller’s bag, he was arrested. A subsequent search of his bag revealed drugs. A majority of six justices – the opinions of LaBel J. and Binnie J. – agreed that there was a s. 8 violation and that exclusion was the proper remedy: see Kang-Brown, at paras. 1 & 26. They did not agree on reasons. A minority of four justices in the LeBel J. opinion concluded there was no reasonable and probable grounds to believe the traveller had drugs, thus dooming the police warrantless dog sniff search. These four justices declined to conduct a common law police power analysis and rejected the lower threshold of “reasonable suspicion”: see Kang-Brown, at paras. 1-2. A majority of five justices, however, in the three opinions of Binnie J., Deschamps J., and Bastarache J., used the Waterfield test to determine common law police power and approved a “reasonable suspicion” standard in the circumstances of the case: see Kang-Brown, at paras. 25, 168, & 213.

[132] In Kelsy, an opinion of Rosenberg J. on a warrantless knapsack search during a 911 call, common law police power again was reviewed pursuant to the Waterfield test: see Kelsy, at paras. 39-50. After reviewing the test and applying it to the circumstances of the case, the court found the knapsack search not to be justifiable: see Kelsey, at para. 41. There was no reasonable necessity; indeed, nothing was known by the officer which necessitated the search of the knapsack: see Kelsy, at para. 42 & 49. Although the 911 call gave the police authority to temporarily seize the knapsack, it did not confer on the police the authority to search the knapsack without consent, a search warrant, or something more: see Kelsy, at paras. 42 & 58.

b) Principles Applied

1) Reasonable Grounds

[133] Before addressing the sources advanced as providing lawful authority for the seizures here, it is prudent to first address whether or not there were reasonable grounds as to each of the four seizures. This is because the existence of reasonable grounds is an element in two of the three sources.

(a) computer – December 30, 2012

[134] Mr. Knapp walked into the police station at 11:00 p.m. on December 30, 2012, and presented the desk officer, Cst. Snyder, with a computer. Mr. Knapp told the officer the computer belonged to his roommate, John Machulec, and it contained child pornography. No police statement was obtained from Mr. Knapp. The source of Mr. Knapp’s asserted knowledge of the contents of the computer was not provided. Cst. Snyder seized the computer based on the information he had that there was child pornography on it. According to Cst. Snyder, it would have been an offence for anyone other than the police to possess the computer.

[135] As reviewed above, there are two components to the “reasonable grounds” requirement. I am satisfied that the Crown has established that Cst. Snyder subjectively believed he had reasonable grounds to believe the presented computer contained evidence of a crime, namely child pornography. Such is clear by his actions and by his evidence.

[136] The other component, whether this subjective belief was objectively reasonable, requires additional consideration. At this stage I must and do consider the totality of the circumstances. Unannounced, Mr. Knapp walked into a police station with a computer. Mr. Knapp was not known to the police. Mr. Knapp provided the computer and information to the desk officer. The information provided was not anonymous – Mr. Knapp provided his contact information. Mr. Knapp said the computer belonged to his roommate and provided his name, John Machulec. Mr. Knapp did not give a statement, did not answer the officer’s questions regarding how he obtained the computer, and did not explain to the officer the source of his claimed knowledge – how Mr. Knapp knew there was child pornography on the computer.

[137] Although I concede this is a close question, I find that the Crown has not proven the objective component of the “reasonable grounds” requirement. Consequently, there were no reasonable grounds to believe the computer had child pornography on it at the time of its seizure. I reach this conclusion principally because of the near absence of the source of Mr. Knapp’s information – how did Mr. Knapp know what was on the computer and that it was child pornography. All we have is Mr. Knapp’s bald statement coupled with his roommate status. But that alone, in my opinion, is insufficient for the needed logical inference. At this stage, Mr. Knapp’s very brief oral statements were insufficiently detailed from which to answer the source question. Moreover, and quite understandably at this stage, there was no police investigation then. Thus I am left with the words of Mr. Knapp which I find insufficient.

(b) three disks – January 3, 2013

[138] The “reasonable grounds” landscape changed dramatically on January 3, 2013. Mr. Knapp gave a formal police statement to Cst. Sweet that morning. Therein Mr. Knapp stated how he viewed the computer and described what he saw – high quality cartoon or computer generated images of people engaged in sex with children. Mr. Knapp also brought in three disks which he presented to Cst. Sweet. Mr. Knapp advised that he took five disks from Mr. Machulec’s filing cabinet. He brought in three of these disks. Mr. Knapp said he looked at each of the three disks and described what he saw – adult/child sex. The disks were labeled Young Boys Plus Girls, Young Girls & Boys, and Young Boys Plus Girls with Adults. Moreover, Mr. Machulec called the police station that same morning and spoke with Sgt. Loebach. During that telephone conversation, Mr. Machulec admitted there were cartoons on his computer depicting sex with children.

[139] I have no trouble finding the Crown has proven this seizure was with the necessary “reasonable grounds” to believe, both subjectively and objectively. The defence does not argue otherwise. At the time of the seizure of the three disks, the police had reasonable grounds to believe the disks contained evidence of child pornography.

(c) two disks – January 10, 2013

[140] On January 9, 2013, Cst. Guan spoke with Mr. Knapp by telephone. Cst. Guan asked Mr. Knapp to clarify his earlier police statement to Cst. Sweet where he said he took five disks but only provided three disks to Cst. Sweet. Mr. Knapp explained that he only looked at the three disks provided. The next morning the two spoke again by telephone. Mr. Knapp said the two remaining disks were found with the three disks previously provided from Mr. Machulec’s filing cabinet. Mr. Knapp had sealed the two remaining disks but remembered their titles as something like either Man and Young Boys or Man and Young Girls. On January 10, 2013, Cst. Guan sent an officer to Mr. Knapp’s home to pick up these two disks. Moreover by the date of this seizure there was another telephone call with Mr. Machulec, this time with Cst. Guan on January 9, 2013. Mr. Machulec again admitted the presence of cartoon-like figures of children having sex with adults on his computer.

[141] I again have no trouble finding the Crown has proven this seizure was with the necessary “reasonable grounds” to believe, both subjectively and objectively. The defence does not argue otherwise. At the time of the seizure of the two disks, the police had reasonable grounds to believe the disks contained evidence of child pornography.

(d) spindle of disks – January 28, 2013

[142] Mr. Knapp called Cst. Guan on January 24, 2013, and advised the officer that he, Mr. Knapp, had a spindle of many disks belonging to Mr. Machulec. Mr. Knapp believed they too contained child pornography but had not looked at them. Arrangements were made to have Mr. Knapp come to the police station to give another statement on January 28, 2013. On that date, Mr. Knapp said he found the spindle in the same filing cabinet of Mr. Machulec where he found the other five disks. Thereafter, the spindle of approximately 50 disks was provided to Cst. Guan by Mr. Knapp.

[143] At the time of the seizure of the spindle of disks the police investigation had progressed. Pursuant to a search warrant for the contents of the computer and the five disks signed on January 17, 2013, Cst. Guan examined each of the five disks on January 21, 2013. He found child pornography on each.

[144] With regard to the seizure of the spindle of disks, I have no trouble finding the Crown has proven this seizure was with the necessary “reasonable grounds” to believe, both subjectively and objectively. The defence does not argue otherwise. At the time of the seizure of the spindle of disks, the police had reasonable grounds to believe the disks contained evidence of child pornography.

2) Statutory Exigent Circumstances

[145] As reviewed above, s. 487.11 authorizes warrantless seizures when grounds exist for obtaining a warrant and, in addition, it is impracticable to obtain a warrant due to exigent circumstances. Both conditions must be satisfied. Each seizure will be assessed for compliance with this source for lawful authority for a warrantless seizure.

(a) computer – December 30, 2012

[146] I find the second element of exigent circumstances satisfied on the evidence. At the time Mr. Knapp brought in the computer he was a total stranger to the police. Additionally, a computer not only is portable but its contents also can be erased. In such circumstances, I find a legitimate concern over the loss or destruction of the evidence of child pornography.

[147] However, as found above, the first element cannot be satisfied for this seizure. The police simply did not have the minimum grounds necessary for a warrant.

[148] Thus, the Crown has failed to satisfy me that statutory exigent circumstances provided lawful authority for the warrantless seizure of the computer on December 30, 2012.

(b) three disks – January 3, 2013

[149] With regard to the police seizure of the three disks on January 3, 2013, the police have established both elements to satisfy statutory exigent circumstances. As to the seizure of the three disks, the police did have the requisite reasonable grounds as reviewed above. Further, at this early stage, Mr. Knapp remained an unknown to the police. Under the circumstances of January 3, 2013, I find it was necessary to take the offered three disks to prevent their imminent loss or destruction. The Crown has satisfied me that s. 487.11 does provide lawful authority for the police seizure of the three disks on January 3, 2013.

(c) two disks – January 10, 2013

[150] Although, as detailed above, I find satisfaction of the first element – the conditions for obtaining a warrant existed, I am not satisfied that exigent circumstances existed on January 10, 2013. The police knew Mr. Knapp took five disks from Mr. Machulec at least as early as January 3, 2013, when he said so during his police statement. Mr. Knapp only turned in three disks on that date. This gap between what was taken and what was turned in was the reason for Cst. Guan’s telephone call to Mr. Knapp on January 9, 2013. On that date Cst. Guan learned that Mr. Knapp still retained possession of the two outstanding disks and was willing to turn them over to the police. On the telephone conference between the two the following morning, January 10, 2013, Cst. Guan learned that Mr. Knapp had sealed the two disks in an envelope. The circumstances on January 10 make it impossible to conclude the necessity of an immediate warrantless seizure to prevent an imminent loss or destruction of the evidence. By January 10, the police knew Mr. Knapp had been holding these two disks for many days and was willing to turn them over to the police. Indeed, Mr. Knapp had sealed the disks in an envelope. I am not satisfied that the Crown has established the imminency element. Section 487.11 does not provide lawful authority for the police seizure of the two disks on January 10, 2013.

(d) spindle of disks – January 28, 2013

[151] I reach the same conclusion regarding the seizure of the spindle of disks. The first element is satisfied but the second is not. Here the police knew about the existence of the spindle in the possession of Mr. Knapp but arranged for its delivery some four days later. Four days certainly is sufficient time to secure a warrant. Section 487.11 does not provide lawful authority for the police seizure of the spindle of disks on January 28, 2013.

3) Statutory Authority – s. 489(2)(b) & (c)

[152] As reviewed above, s. 489(2)(b) & (c) authorizes warrantless seizures if, at the time of the seizure, the seizing officer was lawfully in a place in the execution of his duties, and s/he believed on reasonable grounds the object seized either had been used in the commission of a crime or was evidence of a crime. Both must be satisfied. Each seizure will be assessed for compliance with this source for lawful authority for a warrantless seizure.

(a) computer – December 30, 2012

[153] The first element of this authority clearly is satisfied here. Cst. Snyder was the desk officer at the police station when Mr. Knapp unexpectedly walked in and presented him with a computer containing child pornography. The Crown, however, fails to satisfy the second element. Cst. Snyder did not have reasonable grounds at the time of the computer seizure for reasons set forth above.

[154] Thus, the Crown has failed to satisfy me that the statutory authority under s. 489(2)(b) & (c) provided lawful authority for the warrantless seizure of the computer on December 30, 2012.

(b) three disks – January 3, 2013

[155] Again, here the first element provides no obstacle. Cst. Sweet was taking a police statement from Mr. Knapp at the police station regarding an open police investigation when Mr. Knapp turned over the three disks which related to the investigation. As reviewed above, the second prong is satisfied here. The police had reasonable grounds to believe the three disks contained evidence of the crime of possession of child pornography at the time of the taking.

[156] Thus, the Crown has satisfied me that the statutory authority under s. 489(2)(b) & (c) provided lawful authority for the warrantless seizure of the three disks on January 3, 2013.

(c) two disks – January 10, 2013

[157] The first element is proven. Cst. Guan sent a police officer to pick up the two disks from Mr. Knapp. These two disks related to the open child pornography investigation being led by Cst. Guan. As reviewed above, the second prong also is satisfied here. The police had reasonable grounds to believe the two disks contained evidence of the crime of possession of child pornography at the time of the taking.

[158] The Crown has satisfied me the statutory authority of s. 489(2)(b) & (c) provided lawful authority for the warrantless seizure of the two disks on January 10, 2013.

(d) spindle of disks – January 28, 2013

[159] Here again the first element is no problem. Cst. Guan was taking a police statement from Mr. Knapp at the police station regarding an open police investigation when Mr. Knapp turned over the spindle of disks relating to the investigation. As reviewed above, the second prong also is satisfied here. The police had reasonable grounds to believe the spindle of disks contained evidence of the crime of possession of child pornography at the time of the taking.

[160] The Crown satisfied me the statutory authority of s. 489(2)(b) & (c) provided lawful authority for the warrantless seizure of the spindle of disks on January 28, 2013.

4) common law authority - the Waterfield Doctrine

[161] In this case, the police seized a computer and disks – data storage items – during a child pornography investigation. As to each object, the police did not examine the contents at seizure but rather first secured a search warrant before examining the contents of each. As to this issue, given the uniform nature of all four seizures – essentially investigative detentions of data storage devices for purpose of subsequent search warrants – all comfortably can be analyzed collectively. It is also important to note that all seizures were not from the owner of the items seized, nor from a person having a privacy interest in the items or their content. Each item was given to the police by a third party.

[162] Cases have suggested the appropriateness of such seizures but without any in-depth analysis of the underlying authority to do so, see for example:

• R. v. Cole, 2012 SCC 53, [2012] S.C.J. No. 53, at para.65: “The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose of safeguarding potential evidence of a crime until a search warrant could be obtained.” and

• R. v. Butters, 2014 ONCJ 228, [2014] O.J. No. 2159, at para. 28 (Paciocco J.):

In sum, the search of the computer images under the direction of Cst. Ethier that took place at Mooney’s Bay Computer store was undertaken in violation of section 8 of the Charter because (1) Cst. Ethier did not have reasonable and probable grounds for a valid exigent circumstances search to be conducted, and (2) even if there had been reasonable and probable grounds it was not necessary to search the computer to address the exigent circumstances that existed. The computer tower should have been seized and a search warrant secured before it was examined.” [Emphasis added.]

[163] I agree such seizures generally are lawful. More specifically, the four seizures in this case were lawful and authorized under common law authority pursuant to the Waterfield Doctrine.

[164] First, as found above, Mr. Machulec did have a lower privacy interest in the physical computer itself and in the physical disks at the times of their seizures by the police.

[165] Second, each act of taking by the police of the computer and the disks fell within a duty imposed by statute or recognized at common law. The police at the time of each seizure were advised the items contained contraband, child pornography, the possession of which is unlawful. By statute these officers had the duties of preventing crime and apprehending criminals: see s. 42(1)(b) & (d), Ontario Police Services Act. The police had identical common law duties. It is not controversial that the seizing of contraband by a police officer is within her/his duties as a police officer.

[166] Third, each act of seizing was a justifiable use of powers associated with the officers’ duties to prevent crimes and apprehend criminals. This step has been variously advanced. LeDain J. opined the interference must be reasonable having regard to the liberty interest and the public purpose served; see Dedman, at para. 69. Lamer C.J. for the Supreme Court agreed that the factors set forth by Doherty J.A. in Simpson should form the basis of their analysis: see Godoy, at para. 18. These factors are as follows:

• the duty being performed; • the extent to which some interference with individual liberty is necessary to perform that duty; • the importance of the performance of that duty to the public good; and • the nature and extent of the interference.

[167] These factors must be considered in context based on the totality of the circumstances.

[168] Here the duty being performed was removing contraband, child pornography, from the street and advancing an investigation of those unlawfully possessing same. The interference was with privacy. The nature of the interference with the privacy interests of the owner, Mr. Machulec, was the police taking of personal property in which Mr. Machulec maintained highly personal and private information. The extent of this interference continued with the ongoing detention of the computer and disks. This detention continued for days, and at times a few weeks, between each seizure and when the search warrant for the contents was obtained, and then later when the judicial detention order for each item was entered. (See the chart below in the report to the justice section at para. 222.)

[169] The police could not have performed their duty without taking personal property owned by Mr. Machulec. There simply was no alternative short of seizure to remove contraband from the public domain. Seizure of contraband, items deemed by our elected representatives to fall outside of what can be lawfully possessed by the citizenry, is essential for the efficacy of the rule of law. More particularly, seizure of this form of contraband, child pornography, is of great societal interest. Parliament’s “pressing and substantial” objective in criminalizing possession of child pornography was to protect children from harm: see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, 150 C.C.C. (3d) 321, at para. 82. “Possession of child pornography increases the risk of child abuse”: see Sharpe, at para. 94.

[170] In the context of this case, the position advanced by the defence for the initial taking of the computer – the police had to refuse to take the computer – is untenable and wrong. The police would have been derelict in their duty to refuse to take an offered computer when told it contained child pornography. I see no difference in this taking than if the police were presented with a locked briefcase and were told it contained drugs, or a handgun, or explosives. They had a duty to take it and the taking, under all the circumstances, was justifiable.

[171] With regard to the first seizure, the taking of the computer on December 30, 2012, the police did not have the reasonable grounds necessary for a search warrant. That status changed on January 3, 2013, when Mr. Knapp gave a police statement and Mr. Machulec made his oral telephone statements to Sgt. Loebach. For every seizure thereafter, the police did have reasonable grounds to believe the disks contained child pornography.

[172] For purposes of this type of contraband seizure from a third party, I find the reasonable grounds to seize standard too high and believe the lesser standard adopted in the investigative detention cases of Simpson and Mann appropriate: see Mann, at paras. 27-35. The comparatively lower standard of reasonable grounds to detain an object is the correct standard in this type of case. Adapting the individual detention case standard of Mann, the investigative detention of property must be “reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between” the property detained and a recent or on-going offence: see Mann, at para. 34.

[173] I am satisfied that the Crown has established that Cst. Snyder subjectively believed he had reasonable grounds to suspect the presented computer contained evidence of a crime, namely child pornography. Such is clear by his actions and by his evidence. Moreover, his subjective belief was objectively reasonable. I consider the totality of the circumstances. Unannounced, Mr. Knapp walked into a police station with a computer. Mr. Knapp was not known to the police. Mr. Knapp provided the computer and information to the desk officer. The information provided was not anonymous – Mr. Knapp provided his contact information. Mr. Knapp said the computer belonged to his roommate and provided his name, John Machulec. Mr. Knapp did not give a statement, did not answer the officer’s questions regarding how he obtained the computer, and did not explain to the officer the source of his claimed knowledge – how Mr. Knapp knew there was child pornography on the computer. Collectively, these factors make the subjective belief of Cst. Snyder objectively reasonable. Mr. Knapp provided the nexus between the object detained, the computer, and a crime, the possession of child pornography. It was reasonably necessary to detain the computer in the circumstances. The alternative, to let the computer leave the police station, would be unconscionable in contraband cases. Consequently, there were reasonable grounds to suspect the computer had child pornography on it at the time of its seizure. Above, on the higher standard, I was unable to find objective reasonableness but it was a close question. On this lower standard, I can and do make the finding of objective reasonableness.

[174] The Crown satisfied me the common law authority under the Waterfield Doctrine provided lawful authority for the warrantless seizure of the computer on December 30, 2012, and all the subsequent seizures of the disks. All were lawfully seized.

5) summary

[175] The Crown has satisfied me that all four warrantless seizures were authorized by law as follows:

• computer – December 30, 2012 common law – Waterfield Doctrine

• three disks – January 3, 2013 statutory exigent circumstances statutory authority – s.489(2)(b) & (c) common law – Waterfield Doctrine

• two disks – January 10, 2013 statutory authority – s.489(2)(b) & (c) common law – Waterfield Doctrine

• spindle of disks – January 28, 2013 statutory authority – s.489(2)(b) & (c) common law – Waterfield Doctrine

3. Was Mr. Knapp Acting as a Police Agent?

[176] The defence avers that Michael Knapp was acting as a police agent when he obtained and turned over to the police property of the accused, namely the computer tower and assorted disks. The Crown denies this averment.

a) Governing Principles

[177] Restrictions imposed by the Charter of Rights and Freedoms, including s. 8’s prohibition against unreasonable search or seizure, apply only to the state: see Charter, at s. 32(1). As a consequence, conduct by a private citizen, such as Michael Knapp, is not covered by s. 8 unless, at the time of the conduct, he was an agent of the state: see Buhay, at para. 25.

[178] Whether an individual is acting as an agent of the police was addressed first by the Supreme Court in the context of a s. 7 right to silence issue. There the court said,

Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. …. [W]ould the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?

R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, 68 C.C.C. (3d) 308, [1991] S.C.J. No. 95, at para. 24.

[179] Subsequently, the Supreme Court applied the same test to a s. 8 issue: “Applying the [Broyles] test to this case, it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police”: see R. v. M.(M.R,), 1998 770 (SCC), [1998] 3 S.C.R. 393, 129 C.C.C. (3d) 361, [1998] S.C.J. No. 83, at para. 29. In that case, the fact that there was cooperation between the citizen and the police, and even that a police officer was present at the time of the citizen’s search, was insufficient to establish the citizen was acting as a police agent: see M.(M.R.), at para. 28.

[180] The Supreme Court again addressed this issue in a search case involving private security guards and a bus depot locker: see Buhay, at paras. 25-31. There the question was “whether the security guards would have searched the contents of locker 135 but for the intervention of the police”: see Buhay, at para. 29. There the Court found the guards acted independently of the police on their first search despite the general policy of the security company to cooperate with the police. “Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter”: see Buhay, at para. 30. Rather, the police intervention must be case specific: see Buhay, at para. 30.

b) Principles Applied

[181] At issue are four separate deliveries by Michael Knapp to the police. The first was during the unannounced visit by Mr. Knapp to the police station with Mr. Machulec’s computer on the night of December 30, 2012. The second was on the morning of January 3, 2013, when Mr. Knapp brought three of Mr. Machulec’s disks with him to the police station where he went to give a statement. The third was on January 10, 2013, when Mr. Knapp delivered two more of Mr. Machulec’s disks to a police officer. The fourth and final delivery was on January 28, 2013, when Mr. Knapp brought a spindle of Mr. Machulec’s disks with him to the police station when he went to give another statement.

[182] It is clear that Mr. Knapp’s decision to bring the computer to the police on December 30, 2012, was entirely his own. According to Mr. Knapp, he was upset with Mr. Machulec. Mr. Knapp denied having any prior contact with the police. There is no evidence suggesting the contrary. This total absence of police involvement eliminates any agency claim on this first delivery.

[183] The second delivery was the three disks at the police station. Mr. Knapp had called the police on the morning of January 3, 2013, and asked about the status of the investigation. Sgt. Loebach spoke to Mr. Knapp. Sgt. Loebach saw there was no statement taken from Mr. Knapp and invited Mr. Knapp to the police station to give a formal statement. Mr. Knapp came and brought the three disks with him. Mr. Knapp turned over the three disks to the officer taking the statement, Cst. Sweet. There is no evidence or suggestion in the evidence that any police officer asked Mr. Knapp to obtain disks or to bring the disks to the police station. There is no evidence or suggestion that any police officer knew of the existence of the three disks until Mr. Knapp produced them at his statement. Mr. Knapp did not say the police directed or suggested to secure more items. He denied it. Indeed, according to Mr. Knapp he did his own investigation because he felt bad. Mr. Knapp claimed he felt it was his responsibility to find out what was going on with Mr. Machulec and the child pornography. Again, this lack of police involvement in the seizure of these three disks eliminates any agency claim on this, the second, delivery. The police involvement, at this time, was limited to the initial taking of the computer from Mr. Knapp four days earlier, the opening of a police investigation, and the invitation to Mr. Knapp to come to the police station to give a statement. The search and seizure by Mr. Knapp, which resulted in the three disks, would have taken place as it did regardless of this limited police involvement.

[184] The third delivery involved two disks given to the police on January 10, 2013. These two disks were the balance of the disks taken by Mr. Knapp earlier during Mr. Knapp’s own investigation following his initial delivery of the computer on December 30, 2012. According to Mr. Knapp, he found them while looking through Mr. Machulec’s filing cabinet. Mr. Knapp took five disks and looked at three of them finding child pornography. Mr. Knapp delivered the three reviewed disks to the police on January 3, 2013. Mr. Knapp held back the two unreviewed disks. On the afternoon of January 9, 2013, Cst. Guan telephoned Mr. Knapp after reviewing Mr. Knapp’s statement given to Cst. Sweet. Cst. Guan asked about the two disks; according to Mr. Knapp’s statement, he took five but only turned in three. Mr. Knapp said he still had the two disks and was willing to give them to the police. The following morning, Cst. Guan had another telephone conversation with Mr. Knapp. Cst. Guan was preparing an ITO for a search warrant and was trying to decide whether to include the two yet undelivered disks. Cst. Guan also had concerns about Mr. Knapp’s continued possession of these two disks if they did contain child pornography. Thus, Cst. Guan asked Mr. Knapp questions in an effort to determine whether these two disks contained child pornography. Satisfying himself that they did, Cst. Guan sent a police officer to Mr. Knapp’s home to pick up the two disks from Mr. Knapp.

[185] Here the police did travel to Mr. Knapp’s home to pick up the two disks Mr. Knapp was willing to provide to the police. If Cst. Guan had not made contact with Mr. Knapp asking about the two disks and thereafter sending an officer to collect them, there is no evidence as to what Mr. Knapp would have done with those two disks. But the two disks were already taken from Mr. Machulec by Mr. Knapp days before Cst. Guan made contact and collected them. Indeed, Mr. Knapp’s private search and seizure was before Mr. Knapp turned over the initial three disks. For the purposes of this agency inquiry, that is the focus – when the search and seizure was made. Would Mr. Knapp’s search of Mr. Machulec’s property and seizure of five disks belonging to Mr. Machulec have taken place in the same form and in the same manner in which it did regardless of the involvement of the police? That is the question. Was Mr. Knapp acting as a police agent when he searched Mr. Machulec’s property and when he seized five disks belonging to Mr. Machulec? A subsequent delivery to the police of property taken earlier does not transform the initial taker into a police agent at the time of the taking. Thus the conclusion here is the same as the conclusion reached in the second delivery. The items delivered to the police came from the same private seizure. The search and seizure by Mr. Knapp, which resulted in the two disks, would have taken place as it did regardless of this limited police involvement.

[186] The fourth, or spindle, delivery took place on January 28, 2013, or about a month into the police investigation. On Thursday morning, January 24, 2013, Mr. Knapp called Cst. Guan and inquired about the investigation. Mr. Knapp also told Cst. Guan that he, Mr. Knapp, had 30 or 40 more disks on a spindle belonging to Mr. Machulec. Mr. Knapp said he believed they contained child pornography but had not looked at them. Cst. Guan asked Mr. Knapp if he would come to the police station to give a statement and provide the spindle of disks. Mr. Knapp said he would but needed transportation. Transportation and an interview were scheduled for the following Monday, January 28, 2013.

[187] On Monday morning, January 28, 2013, Mr. Knapp was brought to the police station where he gave a police statement and provided a spindle of approximately 50 disks to the police. Mr. Knapp said he found the spindle of disks in the same filing cabinet where he took the previous five disks. Mr. Knapp said he took the spindle of disks a few weeks before and was willing to turn the spindle over to the police.

[188] Cst. Guan was adamant that he never asked or directed Mr. Knapp to search for or to seize anything. Indeed, Cst. Guan repeatedly told Mr. Knapp not to investigate or to seize anything – that such conduct would complicate the police investigation. Cst. Guan denied ever suggesting to Mr. Knapp that it would be acceptable to Mr. Knapp to search for and seize anything. The other officers, Cst. Snyder, Cst. Sweet, and Sgt. Loebach, also denied any requests or directions to Mr. Knapp to search for or to seize additional items. I accept this evidence that no officer ever asked or directed Mr. Knapp to search for or to seize anything during the police investigation.

[189] Defence counsel argues that the police tacitly influenced Mr. Knapp and turned him into a police agent. According to this theory, the police encouraged Mr. Knapp to search and seize Mr. Machulec’s property by accepting the computer and disks from him without stopping this conduct by Mr. Knapp. By this course of conduct, the police tacitly deputized Mr. Knapp. The defence readily concedes that no case has extended police agency this far. Undaunted, the defence argues vigorously and, in support, the defence refers me to R. v. W.S., 2010 ONSC 4380, [2010] O.J. No. 3510 (Henderson J.).

[190] The conduct by Mr. Knapp cannot be considered conduct by a state agent unless, at the time of the conduct – in this s. 8 issue, a search or a seizure – Mr. Knapp was acting as an agent of the police. Was the search for more disks of child pornography and the seizure of the spindle of disks by Mr. Knapp sometime before the January 24, 2013, telephone conversation with Cst. Guan, a product of Mr. Knapp’s involvement with the police? Would the search and seizure by Mr. Knapp have taken place, in the form and manner in which it did, but for the involvement of the police? This is the ultimate question.

[191] The defence argues affirmatively, stressing that a tacit deputization inference can be made from 1) the existence of an open police investigation known to Mr. Knapp, 2) the acceptance by the police of successive deliveries of evidence from Mr. Knapp relevant to the investigation, and 3) the police failure to stop Mr. Knapp from continuing to search for and seize case-related evidence. The defence says that the first or second evidence delivery by the same person may be insufficient to make such an inference, but each successive delivery strengthens the logic necessary to make such an inference.

[192] I have difficulty with the defence position as a blanket proposition. If correct, then every time a citizen makes successive deliveries to the police of evidence on the same, known investigation, the citizen is a police agent as to each successive acquisition of evidence because the fact of a successive acquisition means the police failed to stop it.

[193] Although conceptually I agree that the creation of an agency relationship does not require a written contract nor even affirmative words, accepting such a wide scenario as some type of prima facie showing of police agency ignores the very fact-specific nature of the inquiry. The existence of police-citizen relationships in crime detection is a positive and necessary component of a democratic society. Cooperation between a citizen and the police, even to the extent that an officer is present at the time of a search by a citizen, does not establish police agency: see M(M.R.), at para. 28. Citizen participation in crime detection is not usually sufficient to turn the citizen into a police agent: see Buhay, at para. 30. “Involvement by the police” does not include advising a citizen of an open police investigation and accepting relevant evidence on that investigation without more. I do not accept the defence proposition as some type of obvious police agency.

[194] More importantly, the facts in this case do not establish any police agency. The police never suggested or implied Mr. Knapp should go on search and seizure missions to supply the police with more evidence. Indeed, Cst. Guan repeatedly told Mr. Knapp not to continue to locate more disks. The fact that Mr. Knapp did so with the spindle of disks only underscores Mr. Knapp’s unhappiness with Mr. Machulec. Mr. Knapp has his own agenda in turning evidence over the police. I specifically find, after consideration of all the evidence, that Mr. Knapp was not a police agent when he obtained the spindle.

[195] The decision in W.S. does not assist the defence. There the police facilitated the citizen’s search and seizure by permitting the citizen to enter the accused’s home and vehicle unlawfully while the home and vehicle were under police control: see W.S., at paras. 36-43. Justice Henderson did not find agency: see W.S., at para. 37, but he did find a s. 8 violation: “the participation of the two police officers in K.S.’s unlawful trespass constitutes a breach of W.S.’s rights as set out in s.8 of the Charter.”: see W.S., at para. 42. Here there is no evidence of any involvement by the police in Mr. Knapp’s private searches and seizures of Mr. Machulec’s property.

[196] With regard to all the seizures by Michael Knapp – the computer, the first three disks, the subsequent two disks, and the final spindle of disks, I hold that none of these takings afforded any Charter violation because Mr. Knapp was acting as a private person at each time and not as an agent of the police.

4. Were the Police Acting Unlawfully by Taking the Disks?

[197] The defence advances a novel position: Mr. Knapp stole Mr. Machulec’s computer and disks. The police took these items from Mr. Knapp knowing he unlawfully possessed them. By allowing Mr. Knapp to keep the stolen disks for days and then by accepting the stolen disks, without stopping Mr. Knapp’s illegality, the police gave Mr. Knapp tacit approval to continue this unlawful conduct. Indeed, the police became aiders and abettors of Mr. Knapp’s crimes. Thus, this police participation in Mr. Knapp’s unlawful taking and possession of Mr. Machulec’s property constituted a s. 8 breach even without a finding of state agency by Mr. Knapp.

[198] “The allegation that the police have put themselves above the law is very serious ….”: see R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, 133 C.C.C. (3d) 257, [1999] S.C.J. No. 16, at para. 23. I take this allegation seriously.

a) Did Mr. Knapp steal?

[199] Is the taking of contraband by a private citizen always a crime? Is the possession of contraband by a private citizen always a crime?

[200] All items over which the law forbids possession by criminal sanction are contraband. In Canada, this includes, most notably, illegal drugs per s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and stolen property per s. 354(1), of the Criminal Code. It also includes certain firearms such as s. 95(1) of the Criminal Code as well as child pornography per s. 163.1(4) of the Criminal Code. It is a continuing crime to possess contraband.

[201] The general crime of theft is defined in s. 322(1) of the Criminal Code. It provides, in pertinent part, as follows:

Every one commits theft who fraudulently and without colour of right takes … anything … with intent,

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it ….

[202] If a person takes contraband unlawfully possessed by another for the purpose of giving it to the police, does that taking satisfy the mental element of “fraudulently and without colour of right”?

[203] Although I am unable to find a theft case in this context, the “innocent possession” defence is well settled in possession cases. “[E]xercising control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one’s control does not constitute criminal possession (citations omitted)”: see R. v. Chalk, 2007 ONCA 815, 227 C.C.C. (3d) 141, [2007] O.J. No. 4627, at para. 23. As explained by Doherty, J.A. at para. 25:

There are cases where an individual has the requisite control and knowledge, but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person’s ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather that to possess. …. I do not think that criminal liability should attach to that kind of brief, “innocent” possession. [Citations omitted.]

[204] The length of time of possession certainly is a factor to consider in determining the issue of intent but it is not a fixed or free-standing element of the defence: see R. v. Cao, 2015 ONSC 5559, [2015] O.J. No. 5301, at para. 29.

[205] From the evidence, all items of Mr. Machulec taken by Mr. Knapp contained or were believed to contain contraband, child pornography. Mr. Knapp turned all of these items over to the police. Mr. Knapp’s intent in these takings was not to enjoy their use but rather to remove child pornography from Mr. Machulec and to give it to the police for their investigation. Although there was some delay between the takings and the deliveries to the police, none was very lengthy and none, in my opinion, called into question the intent of Mr. Knapp. Taking into account this delay and all the other circumstances, I find there was no criminal intent by Mr. Knapp in any of the takings and thus no crime of theft by Mr. Knapp.

b) Were the police wrong to accept the property from Mr. Knapp?

[206] Quite understandably, police officers, whose duty it is to enforce the law and prevent crimes, are exempt from this proscription against possessing contraband if done during the enforcement of the law: see s. 42(1)(b) of the Police Services Act. With regard to child pornography, a police officer cannot be convicted of the possession of same if the officer “has a legitimate purpose related to the administration of justice ….”: see s. 163.1(6) of the Criminal Code. With regard to stolen property, a police officer cannot be convicted of the possession of same if the officer possesses the property “for the purposes of an investigation or otherwise in the execution of the peace officer’s duties”: see s. 354(4) of the Criminal Code.

[207] The suggestion that it is somehow wrong for the police to accept contraband knowing it was taken from the owner of the contraband is unfounded in law. The law specifically permits police officers, within the course of their duties, to possess contraband.

c) Did the police aid and abet the subsequent takings of Mr. Knapp by tacitly approving of Mr. Knapp’s conduct?

[208] As reviewed above in the agency discussion, factually I reject the defence position that the police gave Mr. Knapp tacit approval to continue taking Mr. Machulec’s property. They did not. Thus, this prong of the defence position also is unsupported by the facts. There is no evidence of the police aiding and abetting any crime.

d) Is there a s. 8 breach?

[209] Even assuming satisfaction of the claims of some wrongful acceptance of stolen property by the police, without finding Knapp a police agent, where is the authority for concluding such acceptance was a s. 8 breach? The defence provided me with three cases. The first two are unhelpful. R. v. Dersch, 1993 32 (SCC), [1993] 3 S.C.R. 768, 85 C.C.C. (3d) 1, [1993] S.C.J. No. 116, and R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273, [2001] O.J. No. 3620 (Ont. C.A.), concern the disclosure of privileged medical information to the police by a medical doctor and the hospital staff, respectively, who have a recognized duty of confidentiality to the patient/accused. Because there is no recognized roommate duty of confidentiality, these cases do not assist.

[210] The final case provided, R. v. W.S., 2010 ONSC 4380, 216 C.R.R. (2d) 72, [2010] O.J. No. 3510, is a trial decision regarding the seizure by a citizen complainant of the accused’s personal property from the accused’s house and vehicle while both were under the control of the police. The citizen complainant subsequently turned the property over to the police who sought to offer some of it as evidence in this sexual assault trial. Although the court did reject the agency argument, the court did find a trespass by the citizen complainant that was allowed by the police who were present and controlled the accused’s house and vehicle. The trial court concluded at para. 42:

I find that Officer Elliot authorized the unlawful entry into the house, and that Officer Krol allowed the unlawful search of the house and the vehicle by his failure to adequately perform his supervisory duties. In my view, the participation of the two officers in K.S.’s unlawful trespass constitutes a breach of W.S.’s rights as set out in s. 8 of the Charter.

[211] Because there was no police participation in the citizen takings here, this case too is unhelpful.

[212] I reject this novel position that the police aided illegal conduct by accepting contraband. The police acted lawfully in accepting the disks from Mr. Knapp.

5. Were Failed Filings of Reports to a Justice Section 8 Violations?

[213] The defence claims the police failed to file timely reports to a justice with regard to all of the warrantless seizures – the computer on December 30, 2012, the first three disks on January 3, 2013, the subsequent two disks on January 10, 2013, and the final spindle of disks on January 28, 2013.[^5] By this failure, the defence claims, the police violated s. 489.1(1) which, in turn, breached the s. 8 rights of Mr. Machulec. The Crown says there was no statutory violation with regard to the spindle report because it was filed timely. Moreover, the Crown says, there were no s. 8 violations because any statutory breach was minor and had no real impact on judicial oversight.

Governing Principles

[214] The statutory reporting requirement for police seizures is found in s. 489.1(1) which provides, in pertinent part, as follows:

[W]here a peace officer has seized anything under a warrant … or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as practicable,

(a) where the peace officer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) that the continued detention of the thing seized is not required for the purposes of any investigation …, return the thing seized … ; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained to be dealt with by the justice in accordance with subsection 490(1).

[215] A report filed pursuant to s. 489.1(1) triggers protections found in s. 490. The s. 490 protections include the following:

(1) [W]here, pursuant to paragraph 489.1(1)(b) … a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceedings.

(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a justice, 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 that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or

(b) proceedings are instituted in which the thing detained may be required.

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered … and on three clear days notice to the Attorney General, apply summarily to

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or

(b) a justice, in any other case,

for an order under paragraph 9(c) that the thing seized be returned to the applicant.

(9) Subject to this or any other Act of Parliament, if

(a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or

(b) a justice, in any other case,

is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall

(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person; or

(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,

and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

[216] The real importance of the s. 489.1(1) duty to make a report to a justice regarding any seizure is to provide a gateway to the judicial supervision mandated under s. 490. Without this link, seized property is not subject to any judicial supervision: see R. v. Garcia-Machado, 2015 ONCA 569, 327 C.C.C. (3d) 215, [2015] O.J. No. 4146, at paras. 15-16. Compliance with s. 489.1(1) provides important protections for persons whose items are being held by the police: “[t]he recording of the items seized, the right to notice and the right to apply for return of things seized ….”: see Garcia-Machado, at para. 55.

[217] It is clear since at least 2005, that this reporting requirement applies equally to warrantless seizures: see R. v. Backhouse (2005), 2005 4937 (ON CA), 194 C.C.C. (3d) 1, 195 O.A.C. 80, [2005] O.J. No. 754, at para. 115 (Ont. C.A.). That decision, however, left open the Charter question: “I need not decide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure unreasonable”: see Backhouse, at para. 115.

[218] Framing the issue in a slightly but meaningfully different manner, the Ontario Court of Appeal very succinctly said “yes”, a s. 489.1 violation can be a Charter breach. The court identified the Charter breach not in terms of the original seizure but rather as rendering the continued detention of the seized item unreasonable contrary to s. 8: see Garcia-Machado, at paras. 44-45.

[I]t is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable’s post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8.

Garcia-Machado, at para. 45.

[219] The Court in Garcia-Machado did not hold that all violations of s. 489.1(1) are also s. 8 breaches. Indeed, the Court specifically withheld such a blanket pronouncement stating, “I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 – even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections – would breach s. 8 of the Charter.”: see Garcia-Machado, at para. 55.

[220] This restricted holding makes the facts of Garcia-Machado important. In that case the police seized, by lawful warrant, a vial of the accused’s blood following a serious vehicle accident: see Garcia-Machado, at paras. 1 & 5. The seizure was on August 28, 2012: see Garcia-Machado, at para. 7. The officer filed the s. 489.1(1) report on December 17, 2012: see Garcia-Machado, at para. 11. Thus, the filing there was 111 days after the seizure, or almost 16 weeks and more than three months later. For a delayed filing, it was a significant delay. It is also important to note that the item seized, blood, was not contraband.

a) Principles Applied

[221] A timeline of the key events for each warrantless seizure is helpful to resolve the issue. I have included in the below chart the date of the seizure, the date of the warrant that first included the seizure in question, the date of the report, as well as the length of the delay between the seizure and the filing of the report to a justice. The first three warrantless seizures were included in the same search warrant as well as in the same report to a justice.

Seizure	Date of Seizure	Date of Warrant	Date of Report	Delay
Computer	December 30	January 17	January 25	26 days
Three disks	January 3	January 17	January 25	22 days
Two disks	January 10	January 17	January 25	14 days
Spindle	January 28	February 4	February 5	8 days

[222] Following the 2005 decision in Backhouse, it is clear that the report requirement of s. 489.1(1) applies to warrantless s. 8 seizures. I have found that all the warrantless seizures here were s. 8 seizures. Thus, the report requirement applied to all the warrantless seizures here. The police were statutorily required to file reports for all four warrantless seizures.

[223] There are three questions:

1. Did the police file the required s. 489.1(1) report for each warrantless seizure?
2. If so, was each filed timely, “as soon as practicable”? and
3. Did any statutory violation also breach s. 8 of the Charter?

[224] Each question will be addressed separately.

1) Did the police file the required s. 489.1(1) report for each warrantless seizure?

[225] As noted above in the chart, two reports were filed which included all the warrantlessly seized items: the computer, the first three disks, and the subsequent two disks in the report to a justice dated January 25, 2013, and the final spindle of disks in a report to a justice dated February 5, 2013. But these were filed pursuant to and following search warrants authorizing searches of the contents. None were filed pursuant to any warrantless seizure.

[226] With regard to the first two seizures, the computer and the first three disks, the officers involved gave no reason for this deficiency. Cst. Guan became involved on January 7, 2013, and was involved directly in the last two seizures, the subsequent two disks and the final spindle of disks. With regard to the two disks, Cst. Guan said he did not file a report after the warrantless seizure on January 10, 2013, because he intended to include the two disks in the search warrant he was preparing. Cst. Guan believed it would be redundant to file two reports, one after the warrantless seizure and another after the warranted search. Cst. Guan did not offer the same reason with regard to the spindle although the January 28, 2013 seizure date is quite close to the spindle search warrant date of February 4, 2013.

[227] Neither the existence of a post-warrant report, which included the warrantlessly seized items, nor the redundancy reasoning of Cst. Guan provide any exception to the statutory requirement to file a report to a justice following a police seizure. These considerations may be factors in the subsequent s. 8 analysis, but here they are no excuse. The statute is mandatory: on seizing a thing, the officer shall file a report to a justice: see s. 489.1(1)(b)(ii).

[228] The failure of the police to file a report to a justice following each of the four warrantless seizures violated s. 489.1(1).

2) Was each filed timely, “as soon as practicable”?

[229] Although the delay here is relatively short, especially with regard to the spindle, the failure of the police to file a separate report for any of the warrantless seizures makes this inquiry unnecessary. There were statutory violations.

3) Did any statutory violation also breach [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[230] There are s. 489.1 violations here. But not all s. 489.1 breaches automatically lead to s. 8 breaches. If a statutory violation is deemed “so minor or technical as to have no real impact on the judicial oversight contemplated by the [statute]” it remains open whether such a violation would breach s. 8 of the Charter: see Garcia-Machado, at para. 55.

[231] In resolving this issue we must look at the impact of the violation on the judicial oversight function. This must be done contextually and with consideration of all the relevant circumstances. Because of the recency of Garcia-Machado, it remains our only benchmark: a reporting delay of more than 15 weeks following the warranted seizure of blood, non-contraband, is a s. 8 breach.

[232] Here, in making this assessment, I take into consideration of the following factors:

a) all of the items seized contained contraband, child pornography, which are unlawful to possess; b) there were no reports filed following any of the warrantless seizures; c) there were reports filed to a justice which included each item seized; d) the filed reports enabled the justice to make a detention determination with regard to each item seized warrantlessly; e) a justice ordered each item seized detained; f) the delay between the dates of the reports and the seizure dates ranges between 8 and 26 days; g) the police possession of each item earlier was brought to the attention of the justice upon the filing of the Informations to Obtain Search Warrants; h) Mr. Machulec had timely notice of the seizure of his computer but did not have such notice regarding the subsequent seizures of the disks; and i) there is no evidence that the police seized items that are not included in the reports filed.

[233] Was effective judicial oversight compromised in this case? I find it was not when taking into consideration all of the above factors. The key s. 490 protections safeguarded by the report requirement are notice, a record of seized items, and the right to apply for the return of the items seized. Significantly, Mr. Machulec was not getting his computer and disks containing child pornography returned to him. They contain contraband which is unlawful to possess. Unsurprisingly, the justice ordered their detention. Moreover, the time to judicial oversight was relatively short. The failure to file separate reports for each warrantless seizure is a technical breach for purposes of s. 8 because all items seized were included in a timely report for a related warranted search. This failure simply did not interfere in any significant manner with judicial oversight in this case.

[234] In sum, I find that none of the s. 489.1(1) breaches were s. 8 breaches.

6. Summary – Warrantless Seizures

[235] Here there were four separate takings by the police. I find all four were s. 8 seizures. I find that none of the four warrantless seizures were unreasonable. I find all were authorized by law pursuant to various sources; the authorizing sources themselves were reasonable; and each seizure was conducted in a reasonable manner. Thus, none of the four warrantless seizures breached s. 8 of the Charter.

[236] I find Michael Knapp was not acting as a police agent when he obtained and turned over to the police the computer and disks. Thus, s. 8 was not engaged by Mr. Knapp’s conduct as a private citizen.

[237] I find the police did not act unlawfully by taking the computer and disks from Mr. Knapp. I reject this novel defence position.

[238] I find the police did violate the reporting provisions of s. 489.1(1) in each of the four warrantless seizures. But I find, under the circumstances of this case, none of the s. 489.1(1) violations were s. 8 breaches. I find none of the statutory breaches had any real impact on judicial oversight.

[239] As to each of the four warrantless seizures, I find the Crown has met its burden to rebut the presumed unreasonableness of each.

WARRANTED SEARCHES

[240] The minimum s. 8 standard for the issuance of a search warrant was articulated in the Supreme Court’s seminal case of Hunter v. Southam Inc.: “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search….”: see Hunter, at p. 115. This standard is found in a number of statutes authorizing search warrants, including the one employed in this case, s. 487, which provides, in pertinent part, as follows:

(1) A justice who is satisfied by information on oath … that there are reasonable grounds to believe that there is in a building, receptacle or place

(b) anything that there are reasonable ground to believe will afford evidence with respect to the commission of an offence … against this Act …

may at any time issue a warrant authorizing a peace officer …

(d) to search the building, receptacle or place for any such thing and to seize it …

[241] A search warrant is presumed valid; the onus is on the person challenging it on a balance of probabilities: see R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, [2014] O.J. No. 376, at paras. 35 & 83.

[242] The scope of review of a search warrant is narrow. It is not a de novo review: see R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161, [1990] S.C.J. No. 115, at para. 55. The reviewing judge does not substitute his or her views for that of the issuing judge: see Garofoli, at para. 56.

[Rather 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 prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

Garofoli, at para. 56.[^6] “[T]he 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, [2000] S.C.J. No. 65, at para. 54.

[243] In reviewing a search warrant and its predicating ITO, the following principles must be applied:

• Both the ITO and the warrant must be read as a whole: R. v. Green, 2015 ONCA 597, at para. 18; R. v. Church of Scientology of Toronto (1987), 1987 122 (ON CA), 31 C.C.C. (3d) 449, 30 C.R.R. 238, [1987] O.J. No. 64, at p. 48 (Ont. C.A.);

• The ITO must be read in a common sense manner having regard to its author; police officers are not legal draftsmen and should not be held to that standard: Green, at para. 18; Re Lubell and The Queen (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188, at pp. 190-191 (Ont. H. Ct.) (Zuber J.);

• Issuing justices are entitled to draw reasonable inferences from the allegations in the ITO: Church of Scientology, at p. 48; Lubell, at p. 190.

1. Is There Any Branton Error?

[244] The defence argues that the first two search warrants are facially invalid by their inclusion of five words, “suspected commission or intended commission”, in the warrants’ description of the evidence sought. The Crown, in turn, says whatever error was committed by the inclusion of these words is not fatal to the warrants.

a) Governing Principles

[245] In its 2001 decision, R. v. Branton (2001), 2001 8535 (ON CA), 154 C.C.C. (3d) 139, 53 O.R. (3d) 737, [2001] O.J. No. 1445 (Ont. C.A.), after the Court of Appeal agreed the trial judge was correct in quashing a search warrant on other grounds, the Court added “it appears that the warrant was also invalid on its face” noting that the judge below did not address the issue: see Branton, at para. 36. The error, which now bears the name of the decision, is the inclusion of the words, “suspected commission or intended commission” of the offence, in a search warrant issued pursuant to s. 487(1)(b). Because the (1)(b) subsection limits a search only for “evidence with respect to the commission of an offence”, a search warrant with the offending added language fails to comply with the statute, thus unlawfully authorizing a broader search and making the search warrant invalid on its face: see Branton, at para. 35. This passage in the opinion was brief, only two paragraphs, and without any further analysis.

[246] Thereafter at least one opinion, R. v N.N.M. (2007), 2007 31570 (ON SC), 223 C.C.C. (3d) 417, 159 C.R.R. (2d) 50, [2007] O.J. No. 3022 (Ont. Sup. Ct.), followed Branton. In that case, the prosecution acknowledged the Branton error but argued the severance doctrine could be used to save the warrant: see N.N.M., at para. 332. Justice Hill declined to apply the severance doctrine, stating at para. 335:

The court in Branton did not raise the prospect of curing such a facial validity defect by severance. Authorized searchers read the Form 5 warrant not the ITO. Apparent conferral of searching and seizing authority exceeding what is properly supported by grounds in the ITO improperly risks overly broad conduct at the scene of the search thereby implicating N.N.M.’s s. 8 Charter right to be free from search by invalid court orders.

[247] Justice Hill concluded by finding the issues of how the affiant came to use the “defective” Form 5 warrant and whether it resulted in over-seizure beyond the limits of s. 487(1)(b) were for the s. 24(2) analysis: see N.N.M., at para. 336.

[248] Two recent decisions from the Superior Court reached a contrary conclusion: see R. v. Sonne, 2012 ONSC 584, 104 W.C.B. (2d) 876, [2012] O.J. No. 6243, and R. v. Nurse, 2014 ONSC 1779, [2014] O.J. No. 5004.

[249] Justice Spies in Sonne concluded that the Branton error in that case did not result in the invalidity of the search warrant because the offending clause could be severed from the otherwise valid warrant: see Sonne, at paras. 21 and 38. Justice Spies conducted a detailed review of the doctrine of severability. This review included the Supreme Court decision in R. v. Grabowski, 1985 13 (SCC), [1985] 2 S.C.R. 434, 22 C.C.C. (3d) 449, [1985] S.C.J. No. 66, which held, at para. 61:

When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order, the Court in my opinion can divide the order and preserve the valid portion, which then forms the authorization. In such a case interceptions made under the valid authorization are admissible.

Sonne, at para. 14.

[250] The question to be asked, according to Justice Spies, is whether what is left, after the severance of the “bad parts” of the warrant, is still a valid warrant: see Sonne, at para. 37. Justice Spies applied the severance doctrine to the Branton error concluding that the error did not result in the invalidity of the search warrants in that case: see Sonne, at para. 21.

[251] Justice Coroza, in Nurse, reached the same conclusion: the Branton error there did not invalidate the search warrant: see Nurse, at para. 40. The approach advocated, however, is different from that in Sonne. According to Justice Coroza, the proper approach “is to review the particular circumstances of a case where the Branton error is alleged and determine if there is a possibility for confusion or overly broad conduct not permitted by the section”: see Nurse at para. 35.

[252] The context in Nurse is similar to the one before this court. In that case the search warrant was to obtain certain communications on a previously seized cell phone in the police property room: see Nurse, at paras. 1-6. Justice Coroza held Branton distinguishable because in the case before him there was “no realistic possibility that anyone was confused or misled” by the inclusion of the erroneous language: see Nurse, at para. 36. On the record, the court found no possibility that the issuing justice authorized a search for evidence in respect to the suspected or intended commission of an offence: see Nurse, at para. 37. The court also found no one executing the warrant would have been confused over what seizure was being authorized: see Nurse, at para. 37. The phone was in the possession of the police who were seeking authorization to search the phone for communications relating to an already committed murder: see Nurse, at paras. 37-39.

b) Principles Applied

[253] Here there are three search warrants. All used Form 5 which included the following language for the evidence sought: “that being sought as evidence in respect to the commission, suspected commission or intended commission of an offence against the Criminal Code, namely … See Attached Appendix ‘B’” (emphasis added). These highlighted five words, “suspected commission or intended commission”, are the focus of this challenge. The issuing justice of the last search warrant, the search warrant for the contents of the spindle of disks on February 4, 2013, crossed out the five “offending” words thus eliminating this search warrant from the challenge. The other two warrants, for the contents of the computer and five disks on January 17, 2013, and, for the accused’s home on January 28, 2013, included the five “offending” words.

[254] The two search warrants at issue included the identical Appendix “B” which reads as follows:

APPENDIX “B”

This is Appendix “B”, attached to and forming part of a Search Warrant

Pursuant to Section 487 of the Criminal Code of Canada

1. John MACHULEC, between the 21^st of December 2012 and 3^rd January 2013, in the Southwest Region, in the Province of Ontario, did unlawfully access Child Pornography, to wit Computer Graphic Images contrary to section 163.1(4.1) of the Criminal Code of Canada.

2. JOHN MACHULEC, between the 21^st of December 2012 and 3^rd January 2013, in the Southwest Region, in the Province of Ontario, did unlawfully possess Child Pornography, to wit Computer Graphic Images contrary to section 163.1(4) of the Criminal Code of Canada.

[255] This appendix is part of each warrant and in reviewing them I must read each search warrant as a whole.

[256] I agree with the approach advanced by Justice Coroza in Nurse, at para. 35: “It seems to me that the proper approach is to review the particular circumstances of a case where a Branton error is alleged and determine if there is a possibility for confusion or overly broad conduct not permitted by the section.”

[257] Here there is no realistic possibility of confusion by the issuing justices or by the executing officers. The sentence which contains the “offending” words is written in the alternative which includes the permissible means of “commission.” Immediately after the stated three alternate means – commission, suspected commission or intended commission – is the adverb “namely” followed by Appendix “B” which sets forth two past crimes of accessing and possessing child pornography by John Machulec. The adverb “namely” modifies the preceding clause and means “to wit; that is to say.” Webster’s New Twentieth Century Dictionary (2nd Ed. Unabridged 1977), at p. 1193. Thus, when read as a whole, this clause refers only to evidence of the past crimes of possessing child pornography by John Machulec. The continued use of the flawed Form 5 is unfortunate and unwise but here the search warrants were sufficiently clarified to avoid any confusion.

[258] I reject the defence argument that a Branton error invalidated the first two search warrants.

2. Does the ITO Set Forth Reasonable Grounds to Believe the Object Things Will Be Found in the Place to be Searched?

[259] With regard to the search warrant for the house, the defence argues that the warrant is overbroad in its authorization to search for and to seize certain of the items identified in the search warrant at its Appendix “A”. Despite conceding an evidentiary foundation for the seizure of “optical disks” capable of storing data and certain papers: see Applicant’s Factum, at p. 45, the defence claims there was no evidentiary foundation to seize anything else and because of this the warrant that authorized it must be quashed in its entirety.

a) Governing Principles

[260] Both the governing statute and the applicable Charter principle require reasonable and probable grounds to believe that there is evidence to be found at the place to be searched: see s. 487(1)(b); s. 8, Charter; Hunter v. Southam Inc., at p. 115. Such a failure is fatal to the warrant. “However, the standard is not an exacting one: see Scott C. Hutchison, James C. Morton & Michael P. Bury, Search and Seizure Law in Canada, looseleaf, vol. 1 (Scarborough: Thomson Carswell 2005) at 16-18. ‘A practical, reasonable and non-technical probability that evidence is available, is all that is required.’”: see United States of America v. Price, 2007 ONCA 526, 225 C.C.C. (3d) 307, [2007] O.J. No. 2673, at para. 13.

b) Principles Applied

[261] I disagree with the defence position. At the time of the ITO for the house, on January 28, 2013, the affiant, Cst. Guan already had viewed personally some of the contents of Mr. Machulec’s computer and five disks turned in by Mr. Knapp. As set forth in paragraph 16 at page 14 of the ITO, Cst. Guan found child pornography on these items. Thus, the description of Mr. Machulec as a collector of child pornography certainly is a reasonable inference the issuing justice was entitled to draw. The restriction the defence seeks to place on this type of investigation flies in the face of common sense. Reading the ITO and the search warrant as a whole, there was ample evidence for the issuing justice to authorize a search for child pornography stored in forms broader than optical disks.

3. Does the ITO Provide Sufficient Specificity of the Things to be Seized?

[262] The defence raises a related argument again regarding the search warrant for the house. According to the defence, except for the optical disks and papers provision, the balance of the authorization failed to particularize the items to be searched for and seized, thus rendering the warrant void: see Applicant’s Factum, at para. 77, at pp. 51-52.

a) Governing Principles

[263] The items to be seized must be sufficiently particular to enable the executing officers to identify them: see Lubell, at p. 189. In the Church of Scientology, at p. 42-43, the court approved of the following statement of the trial judge:

The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche to rummage through the premises of the target. The things must be described in such a way as to guide the officer or officers carrying out the search and assist them in identifying the object. Classes of things, including documents, may be authorized to be seized, but such classes should normally be limited both with respect to time and with respect to their relationship to the crime or crimes with respect to which they are said to afford evidence. Each information and subsequent warrant should be viewed as a whole and should not stand or fall as a result of a minute or microscopic analysis of each of the parts. Each case must stand upon its own facts.

[264] “[I]n determining the degree of specificity required, regard must be had to the nature of the offence alleged in the information”: see Church of Scientology, at p. 43. In certain cases, the authorization of broad classes of documents was justified: see Church of Scientology, at p. 48.

b) Principles Applied

[265] Here the search is for child pornography. The ITO sets forth significant proof that John Machulec knowingly viewed it on his computer and stored it at least on disks. Appendix “A” of the search warrant describes the items to be searched for in eight paragraphs. The first six detail various electronic data storage mediums. Paragraph eight concerns papers which are not contested by the defence. Paragraph seven concerns non-electronic storage mediums such as photographs.

[266] I again disagree with the defence position. First, there was no evidence tendered by the defence that there was any rummaging through Mr. Muchulec’s house by the police or any over-searching by them. Moreover, this was a child pornography case involving an obvious collector who was secretive about his collecting. The items to be searched for were limited to child pornography in the various mediums of storage. I reject the defence position which seeks to rigidly restrict the available mediums in a child pornography case of this nature. The classes of things to be searched for were entirely justified in this case.

4. Summary – Warranted Seizures

[267] Here there were three separate search warrants – two for the informational contents of a computer and disks and one for the home of the accused.

[268] As to each warrant, I find the issuing justices lawfully could have issued each. I find no fatal Branton error. I find each ITO set forth reasonable grounds to believe an offence had been committed and evidence of the offence would be found at the place to be searched. I find no overbreadth. I find sufficient specificity. I find the defence has not met its onus to rebut the presumed validity of each warrant.

CONCLUSION

[269] I find no s. 8 violations. Accordingly, the motion to exclude is dismissed.

Original signed “Justice Munroe”

Kirk W. Munroe

Justice

Delivered Orally: March 18, 2016

CITATION: R. v. Machulec, 2016 ONSC 1883

COURT FILE NO.: CR-14-3150

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

John Sebastian Machulec

Defendant

RULING ON EXCLUSION MOTION

Munroe J.

Delivered Orally: March 18, 2016

[^1]: Later Mr. Machulec told Cst. Guan that his computer was not password protected. [^2]: After these events and before the voir dire, Gregory Loebach retired from the Windsor Police. I will use his police rank at the time of the events. [^3]: According to Cst. Snyder, he received the computer at about 11:00 p.m. on Sunday, December 30, 2012. He thereafter wrote and filed his report. Beginning an hour later, Monday, December 31, 2012, was New Year’s Eve. Tuesday, January 1, 2013, was New Year’s Day. There is no evidence that any action was taken with regard to this computer until the Thursday morning 8:10 a.m. telephone call by Knapp to Sgt. Loebach. On that morning of January 3, Sgt. Loebach found the report in his queue but he did not know how long it had been there. Sgt. Loebach testified that he did not work on December 30, January 1, and January 2, but he did work on December 31 and January 3. [^4]: Earlier in the voir dire, Guan testified “there’s possibility they could be child pornography into it …. [I]f there will be child pornography then it’s not proper for him to have possession of them ….” [^5]: The defence does not challenge compliance with the report requirement with regard to any of the three warranted seizures. All three were filed. [^6]: Although this standard was annunciated in the context of a wiretap application, the Supreme Court has made it clear that the same standard applies to a search warrant review: see R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173, [1993] S.C.J. No. 98, at para. 50.