Court File and Parties
COURT FILE NO.: SCA 0542 DATE: 20160829
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Appellant
Laurie Jago, for the Appellant
- and -
MARC GOODFELLOW Respondent
Dean Embry, for the Respondent
HEARD: March 2, 2016 at Milton
REASONS FOR JUDGMENT
[On appeal from the acquittal by Justice F. Forsythe dated October 28, 2014]
F. Dawson J.
[1] The Crown appeals from the acquittal of the respondent by Justice F. Forsythe of the Ontario Court of Justice. The respondent was tried on one count of possessing child pornography contrary to s. 163.1(4) of the Criminal Code. A second count of accessing child pornography was withdrawn.
[2] The acquittal flowed from the trial judge’s finding that the search warrant used to seize the computer on which the child pornography was located was issued in violation of s. 8 of the Charter because the information to obtain the warrant (ITO) did not provide reasonable grounds capable of supporting it. The trial judge excluded the evidence found in the search pursuant to s. 24(2) of the Charter.
[3] The trial judge also ruled that the police violated the respondent’s s. 10(b) right to counsel when they detained him after he returned home while the police were executing the search warrant. The trial judge excluded the subsequent statements made by the respondent, pursuant to s. 24(2) of the Charter.
[4] The appellant submits that the trial judge erred in a number of ways in respect of his findings of s. 8 and s. 10(b) violations and in his s. 24(2) analysis. For the reasons that follow I am unable to accept the submissions advanced by the appellant and would uphold the decision of the trial judge.
Factual Background
[5] Considerable delay occurred between the event which initiated the investigation and the police obtaining a search warrant. This was a factor in the trial judge’s assessment of whether the information to obtain the search warrant (ITO) was capable of supporting the issuance of the warrant.
[6] The RCMP was advised by Interpol on December 21, 2011 that a device at a particular internet protocol (IP) address in Canada had accessed child pornography on May 20, 2011. It was not until 13 months after the child pornography was accessed that the Halton Regional Police applied for a search warrant on June 27, 2012.
[7] In the interim the police investigation tied the IP address to a female subscriber residing at the municipal address in Milton that was later searched pursuant to the warrant. Physical surveillance and other police checks associated seven people to that address. The warrant was executed on June 28, 2012.
[8] Consequently, there was a 13 month gap between the one occasion on which it was believed that a computer or device had accessed child pornography and the swearing of the ITO advancing reasonable grounds to believe that evidence of the offence would still be located in the residence associated with the IP address in question.
The Trial Judge’s Reasons and Analysis on Appeal
[9] The trial judge gave lengthy reasons setting out in great detail every argument advanced on each of the issues before him. That meticulous recitation constitutes a considerable portion of his judgment. However, the heart of his reasoning in respect of the s. 8 violation is found at pages 29 to 33 of his judgment in paras. 106 and 107.
[10] At para. 106 of his judgment the trial judge sets out a number of bullet points which he characterized as “integral to an analysis of whether or not the ITO of D.C. Kent contained sufficient reliable information for the learned Justice of the Peace to have found that he had reasonable grounds to believe that the items detailed in Appendix ‘A’ of the ITO would be currently in [the residence to be searched] and that they would afford evidence of an offence…”
[11] I have quoted this passage from the trial judge’s reasons because it shows that he applied the correct test as described in R. v. Garofoli, [1990] 2 S.C.R. 1421. I agree with the respondent’s submission that there is no indication in this, or any other part of the trial judge’s decision, that he applied the wrong test. Consequently, I reject the first ground advanced by the appellant that the trial judge confused the test on a Garofoli review with the criminal standard of proof beyond a reasonable doubt.
[12] The appellant also made a number of submissions to the effect that even if the trial judge did not misstate the appropriate test he made errors in “process” in reaching his decision. The appellant submits that by referring to certain parts of the ITO as “embellishment” or “substantial overstatement” the trial judge erred by failing to recognize that the justice of the peace was entitled to draw his or her own conclusion. Read as a whole, the trial judge’s reasons reflect no such misunderstanding. I also observe that at the end of the second bullet point at p. 30 of his judgment the trial judge expressly stated that the justice of the peace was entitled and required to take the entire ITO into account.
[13] Having carefully reviewed the ITO and the record before the trial judge I am not persuaded that the trial judge impermissibly substituted his views for the inferences available to the authorizing justice of the peace, as the appellant also argues. The trial judge was required in the exercise of his review function to examine the ITO against the record as amplified or modified on the review and to make findings of fact: R. v. Nero, 2016 ONCA 160, at para. 71. I conclude those factual findings are reasonable and supported by the record. They are owed deference on appeal: Nero, at para. 74. They do not reflect any misunderstanding of the evidence or the law.
[14] The appellant also submits that the trial judge did not “look at what was left” of the ITO and ask if it was enough to support the warrant. Given that I reject the appellant’s submission that the trial judge misunderstood the test, I conclude that a reasonable reading of his judgment as a whole supports the conclusion that the judge did ask himself the right question.
[15] On a careful reading of the trial judge’s reasons against the background of the ITO I am also not persuaded, as the appellant submits, that the trial judge confused or mixed up what Officer Kent, as affiant, and Officer Harvey, as a sub-affiant, respectively contributed to the ITO. It does not seem to me that the trial judge’s comments about embellishment in relation to the affiant’s beliefs reflect any misapprehension of the evidence.
[16] Nor am I persuaded, as the appellant submits, that the trial judge misapprehended or misapplied R. v. Morelli, [2010] 1 S.C.R. 253. The trial judge referred to Morelli to draw attention to the difference between appropriate inferences based on evidence in an ITO and impermissible speculation to fill gaps in an ITO. I do not accept that he confused the factual underpinnings of this case with the facts in Morelli and thus erred by applying the correct legal test to such factual misapprehensions.
[17] In the last bullet point on p. 36, under the rubric “Grounds to Believe the Things Sought are Presently at the Place to be Searched”, the trial judge said certain things were “virtually by themselves determinative” of the s. 8 application. The appellant submits this demonstrates error by the trial judge because it shows he failed to take everything into account.
[18] I reject this submission. The trial judge’s reasons must be read in their entirety and the phraseology must be considered in context. As I read the trial judge’s reasons he was pointing out that it was essential to the validity of the warrant that the ITO was capable of supporting a conclusion that there were reasonable grounds to believe that the evidence sought would still be found in the residence. I accept the respondent’s submission that the trial judge was in effect saying that on this essential aspect of reasonable grounds to support the warrant “this is what it comes down to” or that “this is all we have left” and, most importantly, that it was not capable of supporting the required inferences.
[19] I would not disturb the trial judge’s s. 8 ruling.
The Section 10(b) Issue
[20] The s. 10(b) issue was not fully addressed in oral argument. Counsel essentially left me to decide the issue based on the facta.
[21] The appellant makes extensive reference to the evidence in its factum and submits that the appellant was not detained until he was placed under arrest after the statements sought to be excluded had been made. The appellant further submits that, although the questions asked of the respondent by the police were investigatory, they should not be viewed as contributing to a conclusion that the respondent was detained because they were preliminary in nature and similar to questions being asked of others in the home. As presented these submissions amount to a request that I retry the case rather than to a submission that the trial judge erred in some particular fashion.
[22] The trial judge found that the respondent was detained for a number of reasons. First, when the respondent arrived home and found the police in the house executing the warrant he was given a direction by Cst. Buchanan to go sit in the living room and wait to speak to Cst. Kent, the officer in charge of the investigation. This is the type of direction that could reasonably lead a person to believe they did not have a choice in the matter and I see no error in the trial judge’s conclusion that it contributed in a significant way, together with the pointed investigatory questions that were put to the respondent later by Cst. Kent, to a finding of detention. This was all prior to the respondent being advised of his right to counsel.
[23] No legal error is apparent in the trial judge’s reasoning process. He recognized that a number of factors were involved in determining whether the respondent was detained. He examined the relevant evidence and explained the factual findings he made from it. Those findings are reasonable and well supported by the evidence. His conclusion that the respondent was detained was a reasonable one based on his factual findings and the governing authorities. I see no error in the trial judge’s conclusion that the respondent was detained and that his s. 10(b) rights were violated.
The Section 24(2) Issue
[24] The trial judge undertook separate s. 24(2) analyses in respect of the s. 8 and s. 10(b) Charter violations. He recognized, however, that the fact that there was more than one Charter violation affected the s. 24(2) analysis.
[25] The submissions in the appellant’s factum essentially ask me to redo the s. 24(2) analyses. That is not my role on appeal. It is well recognized that absent a demonstrated legal error or misapprehension of the evidence, provided a trial judge has considered the relevant factors and not taken irrelevant matters into account, his or her assessment under s. 24(2) is entitled to considerable deference on appeal. The only submission made by the appellant that goes beyond asking me to substitute my own views on the matter, was a submission in oral argument that the trial judge failed to engage in a balancing of the three Grant lines of inquiry.
[26] While it is true that the trial judge did not make express reference to “balancing” in separate paragraphs of his reasons, he did include a brief paragraph at the end of each of the s. 24(2) analyses, distinct from each line of inquiry, stating his ultimate conclusion.
[27] The trial judge is presumed to know the law. His analysis shows he had a clear understanding of the process he was engaged in. In each instance the trial judge stated his conclusions under s.24(2) in a separate paragraph distinct from his consideration of the three avenues of inquiry. I am not persuaded he failed to balance the results of his careful analysis under each of the three Grant inquiries.
CONCLUSION
[28] The appeal is dismissed.
F. Dawson J.
