Court File and Parties
COURT FILE NO.: CRIM J(F) 753/15 DATE: 2017 03 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen R. Prihar, for the Crown
- and -
Tommy Nguyen M. Salama, Counsel for the Applicant
RULING: SECTION 8 VOIR DIRE
(I) Overview
[1] Mr. Nguyen stands indicted on three counts related to possessing, accessing and making available child pornography. To prove these charges, the Crown intends to rely upon evidence seized pursuant to a search warrant executed at 66 Barr Crescent, Brampton.
[2] Mr. Nguyen argues that his s. 8 Charter rights have been breached. He raises seven objections to the warrant and seeks the exclusion of the evidence seized. I have heard this application in my capacity as a case management judge, exercising powers under s. 551.3(1) of the Criminal Code. For the reasons that follow, I find that the applicant’s s. 8 Charter rights have been breached in two ways: (1) the police obtained subscriber data without a search warrant; and (2) the warrant was missing appendix A, limiting the items authorized for seizure.
(II) The History of the Application
[3] This application commenced before a different judge in August 2016. While a mistrial was declared after the affiant testified, the parties agreed to have his testimony transcribed and filed as part of the current application record.
[4] When the application commenced before me, I requested a complete copy of the impugned search warrant as it seemed to be missing appendix A, listing the items authorized for seizure. As neither party had a copy, the court file containing the ITO and warrant was requested from records management. When it was delivered to the court, it was discovered to contain the following items:
a. A copy of the signed Form 5, s. 487 Criminal Code search warrant, followed by b. Appendix A to the ITO, followed by c. A copy of the signed Form 1 ITO, followed by d. Appendices B and C to the ITO.
Each of the appendices has a header with the following wording: “This Appendix… forms part of the information to obtain a search warrant pursuant to section 487 of the Criminal Code of Canada for… 66 Barr Crescent...”.
[5] While the s. 8 motion was able to proceed for a few days, the parties requested more time to deal with issues arising from the lack of clarity regarding what actually constituted the warrant. Eventually, Crown counsel called nine police witnesses to testify about, among other things, what they understood to constitute the search warrant.
[6] In the end, the applicant raises seven issues respecting the search and why he says that his s. 8 Charter rights have been breached. As the issues operate on fairly discrete levels, I will discuss the relevant factual circumstances and parties’ positions in relation to each individual issue as they arise. For now, I will briefly review the contents of the ITO.
(III) General Content of the ITO
[7] Cst. Artkin is the affiant in this case. He works in the Child Exploitation Unit of the Peel Regional Police. On June 11, 2013, he accessed the Child Protection System (CPS) to determine if anyone in Peel Region had possessed or shared suspected images of child pornography.
[8] CPS is a software program used by law enforcement to track and investigate peer to peer (P2P) trading and distribution of child pornography. To engage in P2P trading, a person must have an Internet connection and P2P software for the network they wish to use. Gnutella is one of many P2P networks. P2P programs allow users’ computers to connect to other users’ computers on the same P2P network, permitting them to share designated files. The ITO suggests that this is a common mechanism by which child pornography is acquired and distributed.
[9] CPS is designed to identify child pornography on P2P networks. It uses a database of suspected child pornography images and videos. Each image and video is assigned a virtually unique, alphanumeric “hash value”. CPS uses a file-sharing program called “Shareaza LE”, the “LE” being a reference to “law enforcement”. Cst. Artkin testified that Shareaza LE operates on P2P networks and is able to identify, access and download suspected child pornography from the Gnutella P2P network (the relevant P2P network in this case). Where suspected child pornography is located, CPS logs the Internet Protocol (IP) address and Global Unique Identifier (GUID) associated to the suspected child pornography.
[10] Each computer participating in a P2P network will have an IP address. Publicly available, online databases allow IP addresses to be geographically located. In this case, the IP address was located to Brampton. IP addresses can be tracked to Internet Service Providers (ISPs) who are able to determine which subscriber is assigned to an IP address at a specific date and time.
[11] A GUID is a unique alphanumeric reference code that is used as an identifier in P2P computer software. A unique GUID is generated every time that P2P software is downloaded to a computer. The ITO suggests that the GUID number is so long that the probability of it being randomly generated twice is negligible.
[12] In June 2013, Cst. Artkin accessed the CPS. He was able to determine that a computer with an IP address associated to Brampton, operating on the Gnutella network, with an over 30 digit GUID, was suspected of having child pornography in its shared folder. The computer was using an IP address associated to Distributel Communications. He determined through the CPS software, that the GUID and IP had shared 16 files of “suspected child pornographic material” from June 6 to 11, 2013.
[13] Using Shareaza LE, Cst. Artkin then attempted to download suspected child pornography from the identified GUID. On July 17, 2013, [1] a video containing what Cst. Artkin believed was child pornography was downloaded from the GUID and IP.
[14] Without a search warrant or production order, Cst. Artkin received subscriber information from the ISP. He learned that the IP address was associated to a Daniel Colton at 66 Barr Crescent, Brampton. The officer went to the address and was able to detect a secure Wi-Fi connection coming from the area of the residence. There were no insecure connections within 150 metres of the home, leading the affiant to believe that there were no unauthorized users of the 66 Barr Crescent connection.
[15] The affiant also ran inquiries into the residents of the home, including checking the registered owners of vehicles parked out front. Mr. Nguyen’s vehicle was seen parked out front of the home on October 17, 2013. The ITO was sworn on October 25, 2013 and the warrant issued that same day. It was executed and Mr. Nguyen was arrested on October 30.
(IV) Issue One: The Spencer Breach
[16] The applicant argues that his s. 8 Charter rights were breached when the police obtained subscriber information from the ISP without prior judicial authorization. The respondent agrees. So do I.
[17] While the law in Ontario was governed by R. v. Ward, 2012 ONCA 660, at the time that the information was received from the ISP, it has since changed: R. v. Spencer, 2014 SCC 43. The concept of privacy as anonymity is discussed in Spencer. It is not so much the name and address of an individual that enjoy an expectation of privacy, but what the name and address can tell the state about that individual’s otherwise anonymous online activity. The normative approach to s. 8 of the Charter demands that, where they choose to do so, individuals be in a position to operate anonymously on the Internet. Taking steps to connect otherwise anonymous Internet activity with a specific person, through the obtaining of subscriber information from an ISP, probes a sphere of privacy that requires prior judicial authorization.
[18] Cst. Artkin did not obtain a production order to gather the subscriber information allowing him to focus in on 66 Barr Crescent. Instead, he used a “Law Enforcement Request”. While this was a technique commonly used at the time, it was found to be constitutionally short of the mark in Spencer. It clearly resulted in a breach of Mr. Nguyen’s s. 8 Charter rights.
(V) Issue Two: Discovering the GUID without Prior Judicial Approval
(a) Positions of the Parties
[19] The applicant claims that his s. 8 rights were breached when, it is said, his computer hard drive was searched to identify the GUID associated to his P2P file-sharing program. In his factum he argues that accessing the GUID involves “searching (browsing) through the contents of a user’s hard drive when the person is connected to the Internet”. The applicant argues that this constituted a warrantless search of an intensely private area, a personal computer: R. v. Morelli, 2010 SCC 8, at para. 2. The fact that it was done without a warrant rendered it unreasonable.
[20] Counsel for Mr. Nguyen maintains that anyone connected to the Internet is “open” to anyone else who is on the Internet. With enough technological savvy, the applicant argues that a computer’s contents can be accessed. Emphasis is placed on privacy as a normative concept, one that should preclude the police from obtaining GUIDs without prior judicial authorization. In her capable submissions, Ms. Salama argues that privacy would be meaningless in the digital age if the police could simply enter and search a computing device through the Internet. It is argued that the “GUID is not publicly broadcast” when a computer is connected to a P2P network and, as such, the software used to find it constitutes an unreasonable search.
[21] Crown counsel argues that s. 8 only protects against unreasonable searches. As the GUID was not obtained through a search, s. 8 is not even engaged. Moreover, even if there was a search, there is no reasonable expectation of privacy in a GUID as it engages nothing to do with an individual’s biographical core of information.
(b) Factual Backdrop for this Issue
[22] The information about GUIDs comes from the ITO and Cst. Artkin’s evidence.
[23] To understand GUIDs, it is first necessary to understand the P2P networks in which they operate. There are many P2P networks, one of which is Gnutella. In most cases, P2P networks do not operate through a central server. Rather, as explained by the affiant, those who choose to download the software onto their computers become part of the network of computers that offer files to share, directly from individual computers. Users can choose to assign themselves a user name on the network, but this is an optional feature. Each P2P user designates a “shared folder” or allows a default setting to create a shared folder. This folder contains the items available for sharing with others on the network.
[24] The shared folder is then used to transfer files, both uploading and downloading them to and from other network users. Cst. Artkin likened a shared folder to a front yard during a yard sale. He testified that the home itself is like the computer. The items for sale are placed in the front yard (the shared folder), on display and open to others on the street (the network).
[25] In cross-examination, Cst. Artkin was asked what he meant in the ITO when he said “users on the network can search for files on your computer but typically only within a single folder that you have designated to share [emphasis added]”. He testified that what he intended to convey was that users may designate a particular folder as the shared folder or allow the default program to set one up for them. Users do not use more than one folder at a time because it would confuse the program. As I understand Cst. Artkin’s evidence, while a user may have more than one shared folder, only one can be in use at a time. The user would have to make the switch to another folder if he or she wished to do so.
[26] P2P network users can only access and share files contained within the designated shared folder, and can only browse others’ shared folders, provided the browsing function is turned on and the source computer has a connection to the Internet. The browsing function can be turned on and off by the user.
[27] Cst. Artkin was asked whether when the CPS accesses a GUID, anyone is able to see the contents of a user’s computer “at large”. He testified as follows:
No, I’m only – I’m only able to see what is in the shared file or the – the shared folder, which, again, is a file that is available to any other peer to peer user on that network.
[28] He was also asked whether, to his knowledge, when accessing GUIDs through CPS, there is any “search of any user’s hard drive”. Cst. Artkin testified that there is no searching of a hard drive. Like other P2P users, CPS merely accesses the shared folder. Cst. Artkin testified that he did not and would not have been able to see anything beyond what was being shared in the folder associated to the GUID referenced in the ITO.
[29] As for the GUID, it is “like a serial number for the program” when it is downloaded to an individual computer. It is the GUID that allows the P2P program to identify the computer requesting and sending a file. There is “no provider or database” that gives information about the user of a particular GUID. It is only important to the program itself. GUIDs on one P2P network will not recognize GUIDs on another network. Only GUIDs on the same P2P network can share files.
[30] Among others, CPS accesses the Gnutella P2P network and sends out search terms associated to child pornography. For example, it might send out the term “PTHC”, commonly used in child pornography circles to refer to “preteen hardcore”. Computers connected to the same P2P network that contain titles with this term in their shared folders will respond. The CPS captures the responding GUID number, the title of the file, and the IP address for the computer. While regular P2P users cannot see the GUID, and while Cst. Artkin does not know the mechanics behind it, he testified that CPS makes the GUID readable for investigators.
[31] While CPS logs the GUID and IP information associated to child notable images on P2P networks, it is for the specific investigative agencies throughout the world to determine if the images meet their local definition for child pornography. Once CPS locates GUIDs and IP addresses associated to child pornography, local investigators take over. The Shareaza LE software used by law enforcement is adapted to ensure that, while it can operate on a P2P network and download child pornography, it cannot upload images.
[32] When Cst. Artkin discovered that CPS had located potential child pornography on a computer associated to an IP address in Brampton, he used Shareaza LE to request a file from the target GUID on the P2P network. The Shareaza LE program shows a green light when the GUID is online. Because Shareaza LE does not make itself available to upload files, it is assigned low priority on the P2P network, meaning it can sometimes take a long time to get a download.
(c) Did the Finding of the GUID Involve a Search?
[33] Section 8 of the Charter only protects against unreasonable searches and seizures. In determining any s. 8 issue, the court must first consider whether the police activity engaged a “search or seizure within the meaning of s. 8 of the Charter”: Spencer, at para. 16. While the answer to this question will often be obvious on its face, where a live issue about standing to raise a s. 8 argument is raised, the court must consider the totality of circumstances. The onus falls to the accused to establish on a balance of probabilities that his right to privacy has been impinged: R v Edwards, [1996] 1 S.C.R. 128, at para. 45.
[34] While there have been various articulations of the analytical approach to the subjective and objective tests for determining whether a privacy interest exists, in Spencer, at para. 18, Cromwell J. broke the analysis into four main headings:
(i) The subject matter of the alleged search; (ii) The claimant’s interest in the subject matter; (iii) The claimant’s subjective expectation of privacy in the subject matter; and (iv) Whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
See also: R. v. Patrick, 2009 SCC 17, at para. 27; R. v. Tessling, 2004 SCC 67, at para. 32; R. v. Cole, 2012 SCC 53, at para. 40; R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45.
(d) Applying the Spencer Criteria
[35] The applicant argues that the subject matter of the search in this case – the GUID – is similar to the subscriber information at issue in Spencer. I disagree. To the extent that an analogy is appropriate, I find that the subject matter of the search is much closer to a raw IP address, unconnected to subscriber information. It is nothing more than a long alphanumeric number. While GUIDs permit traffic to flow on P2P networks, there is no database that permits investigators to geographically locate GUIDs or to discover identities behind the GUIDs.
[36] We know from Spencer that, standing on its own, an IP address does not trigger a reasonable expectation of privacy. It is the unveiling of otherwise anonymous Internet activity, by connecting an IP address to a name and or address, that triggers s. 8 protection. As noted by Cromwell J. in Spencer, at para. 47: “subscriber information, by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating not simply to the person’s name or address but to his or her identity as the source, possessor or user of that information.”
[37] Based on the factual record before the court, there is no evidence that a GUID provides any window into private information about an individual. There is no database that collects GUIDs and no one keeps track of them. While this long alphanumeric number, associated to the software application, facilitates the movement of files to and from the user’s shared folder on the P2P network, like a raw IP address, it is just a number and tells the state nothing about a specific individual.
[38] Moreover, people choose to be on a P2P network and choose what to put in their shared folders. This is the whole point of P2P networks. Shareaza LE simply accesses what everyone else in the world on the same P2P network can access. GUIDs are simply the means by which computers identify each other for sharing information, the information contained within the designated shared folders.
[39] There is no evidence supporting the suggestion that the police have to do anything special to obtain a GUID. While Cst. Artkin is unfamiliar with precisely how the GUID associated to the P2P program is uncovered, it is sheer speculation to suggest that a private sphere on the computer is entered to obtain the GUID. Indeed, Cst. Artkin’s evidence points in the opposite direction, suggesting that computer hard drives are not searched and are not capable of being searched.
[40] The subject matter of the alleged search here is a long 30 plus digit number that is detached from subscriber information. It tells us nothing about a particular individual. In this sense, it is exactly like an IP address.
[41] As for Mr. Nguyen’s interest in the GUID, it is minimal. As above, the GUID is merely the number that allows traffic to and from the shared folder on a user’s computer. It is automatically assigned when the software is downloaded to the computer and, I find, of no specific interest to the user.
[42] The applicant did not testify about his subjective expectation in the GUID; it is difficult to imagine one. While identifying a GUID and IP address permits the police to focus in on a user to determine if his or her shared folder contains child pornography, it is just that, a shared folder on a P2P network. The whole purpose of the network is to share with other anonymous users around the world. The information is there for the taking and giving. The user chooses to be on a P2P network and chooses what files to make available for download. He or she also knows that a program, which he or she has downloaded from the Internet, facilitates all of this activity on the P2P network. In these circumstances, it is difficult to imagine how the individual might have a subjective expectation of privacy in the GUID behind the program facilitating the activity consciously undertaken.
[43] Even if there is a subjective expectation of privacy engaged, having regard to all of the circumstances, it would not be objectively reasonable. I say this notwithstanding the fact that the reasonable expectation of privacy standard is normative in nature, “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: R. v. Patrick, 2009 SCC 17, at para. 14.
[44] Privacy is undoubtedly a “broad and somewhat evanescent concept”: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 67. Controlling information about oneself is critically important and integrally linked to one’s privacy interest. This is particularly true in the Internet age where an understanding of privacy as anonymity has taken a place of prominence: Spencer, a para. 41. As Doherty J.A. wrote in Ward, at para. 71, personal privacy “protects an individual’s ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual’s personal growth and the flourishing of an open and democratic society”. See also: Spencer, at para. 48.
[45] Unlike subscriber information, though, there is nothing inherent in a GUID that can serve to strip an individual of anonymity. While the connection of a GUID to an IP address can make it vulnerable to the subscriber information from an ISP, since Spencer, this information may only be obtained with prior judicial authorization. As such, all s. 8 concerns are properly and constitutionally attended to.
[46] In the end, I conclude that a person who chooses to operate on a P2P network is making information available to other users on the network. It is the very foundational premise upon which P2P networks operate. Just like the user knows he can obtain information from another’s shared folder, he knows that another inhabitant of the world, also operating on the same P2P network, may obtain information from his shared folder. He has made a conscious decision to make his shared folder open to others on the P2P network. Like IP addresses, assigned to each device participating on the Internet, GUIDs are assigned to programs operating within P2P networks. From an individual privacy perspective, they are entirely benign until such time as the subscriber information related to an IP address is discovered. Standing on its own, a GUID, like an IP address, does not adversely impact an individual’s reasonable expectation of privacy.
[47] I find that Mr. Nguyen has failed to establish that he has a reasonable expectation of privacy in the GUID associated to his P2P program.
(VI) Issue Three: Absence of Explanation about the GUID
[48] The applicant claims that the affiant failed to provide “real assistance to the issuing justice with respect to how the information about the GUID was obtained, who obtained it, the technique that was involved, the level of intrusion into the user’s computer” and so on. It is argued that when dealing with computer-related forensic techniques, a level of explanation is required “beyond merely asserting the information that the affiant obtained”. I disagree.
[49] While affiants are under a clear duty to make full, fair and frank disclosure, it is important to recall that this obligation relates to material facts: R. v. Araujo, 2000 SCC 65, at para. 46. As Fish J. noted in Morelli, at para. 58, the affiant’s “obligation is to present all material facts, favourable or not” [emphasis in original]. Material non-disclosure involves that which bears on the merits or substance of a warrant application: R. v. Nguyen, 2011 ONCA 465, at para. 51. The affiant was only under an obligation to disclose material facts.
[50] Cst. Artkin disclosed all material facts related to the GUID. Among other things, he informed the issuing justice of the GUID, what it was, how it interacted with the CPS and IP, and that it was unique. He was under no obligation to do more.
[51] In R. v. Burke, 2013 ONCA 424, the court was called upon to consider a similar issue. The appellant suggested that the ITO in support of a warrant in a child pornography case did not provide information about the reliability of the software used to generate an IP history for the appellant’s IP address. The “Wyoming Toolkit” was used to generate a report showing the appellant’s IP address as having been identified as a download candidate for child pornography during an eight-month period.
[52] As noted by Weiler J.A., the sole function of the Wyoming Toolkit is to “monitor, record and sort numerical data that is being broadcast on the Gnutella network about the availability of files in users’ folders based on their IP addresses and hash values”. It canvasses the Gnutella network (much like CPS), and “outputs a subset of records for an investigator to check”: Burke, at para. 28. It is simply a tool used by the police. The focus in the ITO is on the belief of the officer who has used that tool that a crime has been committed and that a search will reveal evidence of that crime.
[53] The court concluded that there was no need to show that the data-sorting tool – the Wyoming Toolkit – was independently reliable. The same holds true here. The affiant met his obligations to make full, fair and frank disclosure by informing the issuing justice of the material issues related to the GUID.
[54] The challenge based on this issue cannot succeed.
(VII) Issue Four: The Suggestion that IP Subscriber Information is Only Evidence of Who Pays the Account
[55] The Internet can be accessed from any place where there is an Internet connection. The applicant claims that subscriber information is nothing more than information as to who is being billed for Internet use. The applicant argues that subscriber information does not provide insight into where the Internet is being used. In other words, the applicant argues that while subscriber X may live at Y location, he may be accessing the Internet from his phone at Z location. The applicant says that to conclude that the location of the subscriber is the location where the Internet is being used, is a leap and does not amount to reasonable and probable grounds to believe. The applicant relies upon United State of America v. Viscomi, 2015 ONCA 484, in support of this position.
[56] The applicant’s reliance on Viscomi is misplaced. Viscomi arises in the context of an extradition case where the sole evidence connecting Mr. Viscomi to an Internet communication with a girl in the United States was the subscriber information. The US authorities were able to trace the communications with the child through a residential ISP in Ontario who provided Mark Viscomi as the subscriber with a specified residential address. The police confirmed the name and address through his Ontario driver’s licence. He was ordered extradited. Nothing else was relied upon in support of his extradition.
[57] The Court of Appeal considered a simple question: “was it open to the extradition judge to draw the inference that he drew from the information relating to the IP address and Mr. Viscomi’s residential address, namely that it was Mr. Viscomi who was the user of that IP address at the relevant time?” See Viscomi, at para. 11. Justice Blair held that “it was simply too great a leap to draw the inference that he was the user of the IP address at the relevant time” [emphasis in original]: Viscomi, at para. 18.
[58] It is important not to conflate the issue related to who is using a computer with the issue as to whether evidence will be found in a location to be searched. Mr. Viscomi’s extradition turned on whether he was the user of the computer that was used to communicate with the complainant. The fact that he was the subscriber of the IP address did not necessarily put him behind the computer. Even considering the relaxed standard for extradition, mirroring the test for committal, there was no evidence placing Mr. Viscomi behind the computer used for the communication: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; United States of America v. Leonard, 2012 ONCA 622, at para. 31.
[59] Applications for search warrants do not resemble trials, preliminary inquiries or even extradition hearings. They are investigative tools used to gather evidence. A s. 487 warrant is simply a means by which to search for and seize evidence with respect to the commission of an offence. As noted in Canadianoxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 21, at the investigative stage, authorities look at many issues, including the what and who, as well as whether the conduct is criminally culpable. Search warrants are “staple investigative tool[s]” used in answering these questions.
[60] There need not be any information that anyone in particular was involved in the offences related to child pornography. Unlike Viscomi, the ITO did not have to establish such a connection. Nor did there need to be proof that the actual sending and receipt of the child pornography was from the address associated to the subscriber. All that was required were reasonable grounds to believe that in that location, the police would find evidence related to the offence under investigation.
[61] Reasonable grounds to believe do not require proof beyond a reasonable doubt or on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, at para. 81. The ITO need only satisfy the issuing justice on a standard of credibly-based probability. As Lamer J. (as he then was) held in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167: “[t]he state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”
[62] In assessing this issue, it is also important to recall that the issuing justice must make his or her decision based on the ITO as a whole and is permitted to draw reasonable inferences from the evidence in the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 364-65. In assessing the ITO and considering reasonable inferences, the reviewing court plays a limited and highly deferential role. It is not to consider the ITO de novo, or to consider whether it would have issued the warrant. Rather, the function of the reviewing court is to consider whether the issuing court could have done so: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. As LeBel J. held in Araujo, at para. 54, the question for the reviewing court is whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge” [emphasis in original].
[63] In this case, it was entirely open to the issuing justice to grant the warrant on the basis of the information provided. There was ample credibly-based probability that at the location to be searched there would be evidence respecting the offences listed. The IP address came back to the location searched. Cst. Artkin confirmed a secure Wi-Fi connection in the area of the residence. It was open to the issuing justice to infer that there would be evidence of the offences in that location. The warrant could have issued on this basis and I defer to that decision.
[64] The challenge based on this issue cannot succeed.
(VIII) Issue Five: The Suggestion that the ITO was Misleading
[65] The applicant claims that the affiant’s reference to the images identified by CPS as possibly being child pornography is misleading. The applicant suggests that the officer was under an obligation to ensure that the images were in fact child pornography.
[66] This particular complaint appears to arise from the affiant’s reference to the fact that CPS had identified the GUID and IP address as being on the Gnutella network between June 6 and 11, 2013 and “having shared 16 files which were identified as being suspected child pornographic material”. He also referenced the fact that the GUID was associated with files “previously identified by CPS as potentially being child pornography”.
[67] There is nothing wrong with how the affiant described this fact. It is the truth. The images identified by CPS were only “potentially” and only “suspected” of being child pornography. While this may not have been sufficient to obtain a warrant, this is not the basis upon which the warrant was obtained. Rather, it constitutes nothing more than a descriptor of the information available to the officer as he proceeded through his investigation. The information relied upon to obtain the warrant was the video that Cst. Artkin was able to download from the GUID. As described in the ITO, the video shows a young girl performing fellatio on an adult male, and the male ejaculating in her mouth. As Cst. Artkin said in the ITO, the video meets the definition of child pornography.
[68] Nothing more was required. On the basis of this information alone, it was open to the issuing justice to issue the warrant.
[69] The challenge based on this issue cannot succeed.
(IX) Issue Six: The Suggestion that a Second Warrant was Required
[70] The applicant suggests that a second search warrant was required in accordance with Vu. He says that the privacy interests inherent in a computer require specific prior judicial authorization be sought before devices can be searched.
[71] Respectfully, I find that this position constitutes a misreading of Vu. While Vu stands for the proposition that a justice who has “considered the privacy interests arising from the search of a place” should not be assumed to have considered the privacy interests in a computer, such that prior judicial authorization is required before searching a computer, the comments relied upon by the applicant are made in the context of the absence of any prior judicial authorization relating to a computer search. That is a long way from this case. The ITO was specifically directed at grounds for why the seizure of electronic devices from 66 Barr Crescent would afford evidence of the offences. Assuming appendix “A” to the ITO formed part of the warrant in this case (the next issue to be addressed), it is specifically directed at seizing and searching electronic devices and their related peripherals. This is the whole underlying point of the search warrant. It complies precisely with the directions in Vu.
[72] The challenge based on this issue cannot succeed.
(X) Issue Seven: The Validity of the Search Warrant
(a) Overview
[73] The applicant argues that the search warrant is facially defective because it did not refer to items authorized for seizure. I will commence with reviewing the facts related to this issue and then review the positions of counsel.
(b) The Facts
[74] The materials originally filed on this application did not contain a full copy of the search warrant. While the face of the Form 5 references appendix A as containing the “things” authorized to be seized, there was no appendix A to the warrant.
[75] As above, when the package containing the warrant and ITO was retrieved from the court records, it was found to contain five documents in the following order: (1) a copy of the signed Form 5; (2) appendix A to the ITO; (3) a signed Form 1 ITO; (4) appendix B to the ITO; and (5) appendix C to the ITO. Except for the ITO, all of the documents in the court file contain a “copy” stamp.
[76] Cst. Artkin testified that he prepared the documentation and dropped it off at the courthouse for review by a justice of the peace. He dropped off a sworn Form 1 ITO with three appendices attached: appendix A listing the items to be seized; appendix B listing the offences; and appendix C setting out the grounds for belief. He also filled out a Form 5 search warrant. He put the Form 5 warrant and Form 1 ITO (with appendices) together with a paper clip. He also made a copy of each appendix. After stamping the additional appendices with the word “copy”, he clipped them together. He then placed everything in a package and dropped it off for the justice of the peace.
[77] He testified that he was following Peel Regional Police Directive: “Search Warrants – Obtaining and Executing”. I have considered the directive. Section F(3) list what the officer “shall” do once a decision has been made to obtain a Criminal Code search warrant.
[78] Section F(3)(a) says that the officer shall “complete a Form 1 indicating [among other things] … items to be searched for … offences that have been committed … and … grounds for belief.” Section F(3)(b) references the fact that the officer must “complete a Form 5 and attach one copy of the following”: (i) “items to be searched for” and (ii) “offences that have been committed”. Cst. Artkin testified the he understands the word “copy” to mean that he has to attach copies of the appendices to the ITO to the Form 5 search warrant. In other words, that he should simply duplicate the ITO’s appendices and attach them to the warrant. In this case, he did not attach the copied appendices to the Form 5, but placed copies of all appendices in the package. He referred to this as a working copy.
[79] Cst. Artkin testified that warrant packages are dropped off at the courthouse intake office. He leaves a contact number where he can be reached. While he does not remember receiving a call regarding this warrant, he must have. When he retrieved the search warrant, the Form 5 had been signed. The original appendices A, B and C accompanied the Form 5 provided back to him. Initials appeared in the bottom right corner of each of the pages included in the appendices. Cst. Artkin believes that they are the initials of the issuing justice. He testified that sometimes the police receive appendices A or B or A and B back. Typically appendix C to the ITO (containing the grounds) is not provided back. Cst. Artkin was under the impression that he had been authorized to search for and seize what was contained in appendix A.
[80] Cst. Artkin copied the signed Form 5 and appendices A (things to be seized) and B (offences). He attached his business card to the copies and brought it on the search. He testified that Mr. Nguyen was provided with this copy when the home was searched. There was no evidence to the contrary.
[81] Prior to attending at 66 Barr Crescent, Cst. Artkin held a briefing with 8 other officers. He testified that he showed the officers the Form 5 and appendices A and B. Each officer signed the back of the Form 5.
[82] Two uniform patrol officers were present in case someone was arrested and required transport to the police station. Two other officers were present in a technical capacity, to identify and properly preserve the electronic evidence. One was there as the exhibits officer and three others were there as searching officers. Along with Cst. Artkin, this made for nine officers in total.
[83] All officers testified that at about 6:00 a.m., on the morning that the warrant was executed, Cst. Artkin held a briefing. Cst. Artkin testified that he passed around the Form 5 warrant and appendices A and B. One of the patrol officers only recalls seeing the Form 5, but has no memory of anything else. The other patrol officer does not recall what he was shown. Both of them signed the back of the Form 5. These officers were not assigned to any of the searching responsibilities.
[84] One of the technical crimes officers (now retired Officer Stansbury) recalls seeing both appendices A and B attached to the Form 5. He recalls that the documents were stapled together. He was in an assisting role to the other technical crimes officer, Cst. Shaidle. Officer Stansbury believed that they had authority to search for and seize the items on appendix A. As for Cst. Shaidle, he testified that only appendix A was attached to the Form 5. He specifically recalls it and says it is an important part of the warrant because, when later conducting his technical search of electronic devices, he will sometimes look back at this document to determine the parameters of the search. He recalls doing that in this case.
[85] As for the exhibits officer, Cst. Hutchison testified that she recalls having been shown the Form 5 and appendices A and B. While Cst. Shaidle testified that he did not review the warrant before coming to court, both Cst. Hutchison and Cst. Stansbury agreed that they had been given an opportunity to review the search warrant (with appendices) before entering the court.
[86] As for the final three searching officers, their evidence also varied a bit. Cst. Mitchell testified that he recalled seeing the Form 5 and appendix A. Although he has no specific recollection, he thinks they may have been stapled together. He was shown a copy before he testified. As for Cst. MacDonald, he testified that Form 5 warrants are “commonly” accompanied by appendices A and B. In this case, he only has a specific recollection of reviewing appendix A. Cst. Martin testified that he saw the Form 5 and appendices A and B, which he had reviewed before testifying.
[87] In summary, while none of the officers had notes reflecting what documents they reviewed, and while each signed only the back of the Form 5, four recalled seeing appendices A and B, and three recalled seeing appendix A. In other words, other than the patrol officers, each of the officers involved in the actual search testified that they saw appendix A.
[88] I have no reason to doubt their evidence in this regard. I am satisfied that they each reviewed the Form 5. Their signatures on the back of the Form 5 support this conclusion. The Form 5 makes clear reference to appendix A as containing the items to be searched for. If there was no appendix A present at the briefing, or at the search scene, I find that at least one of these many officers would have noted that fact and raised a concern.
[89] As for Cst. Shaidle in particular, he gave clear evidence on this point. He has a good recollection of appendix A and specifically recalls going back to check it when conducting the technical search of the devices at a later date. It makes sense that a technical officer would do this if he wanted to be sure about the parameters of the terms and conditions contained within appendix A.
[90] Bearing in mind this finding of fact, the real issue for me to decide is what, if anything, turns on the fact that appendix A was actually just the appendix to the ITO.
(c) Positions of Counsel
[91] Mr. Nguyen maintains that a warrant must clearly articulate the items to be gathered during the search. A failure to set this out will result in a finding of facial invalidity. The applicant maintains that the court copy of the warrant does not have appendix A and there is no indication that the issuing justice intended for appendix A to the ITO to form appendix A to the warrant. The description of items that the police wish to seize, as described in appendix A to the ITO, cannot act as a substitute for what is authorized to be seized. The search warrant in this case amounted to a limitless authorization to search. According to the applicant, this is made all the more egregious because the search was focussed on electronic devices enjoying a higher privacy interest.
[92] The applicant further argues that the police should have modified the Form 5 used for the search warrant, as they were entitled to do. They used an outdated Form 5, making reference to the “suspected commission or intended commission of an offence”.
[93] Crown counsel argues that any deficiencies in the search warrant can be remedied. First, it is said that appendix A to the ITO simply became appendix A to the warrant and there is nothing wrong with this fact. It is clear that the justice authorized the seizure of the items listed in appendix A. The fact that Cst. Artkin was provided with a signed Form 5, as well as the appendices with the justice’s initials on them, should provide the court with confidence that it was all looked at.
[94] If I conclude that appendix A to the ITO did not become appendix A to the warrant, then the contents of the ITO can be used to remedy the void. The searching officers were not confused and knew what they were searching for.
[95] As for the reference to “suspected commission or intended commission of an offence”, Crown counsel argues that the offending words should simply be excised from the warrant.
(d) Analysis
[96] It is vitally important that search warrants are clear on their face. A s. 487 search warrant authorizes the police to enter a specified place, search for and seize specified property: R. v. Ting, 2016 ONCA 57, at para. 47.
[97] Section 29 of the Criminal Code requires the police to carry a copy of a search warrant when it is executed and to produce it upon request. Clarity ensures that people whose privacy interests are impacted by the execution of a search warrant know that “there is a colour of authority for the search”: R. v. Cornell, 2010 SCC 31, at para. 43.
[98] As well, clarity on the face of a warrant ensures that police officers know the scope of the judicial authorization. Officers must be guided in the execution of the search warrant by the parameters imposed by the issuing justice. If the warrant is not clear on its face, no such guidance can be obtained. In the context of discussing the need for precision in naming the location to be searched, Miller J.A. noted in Ting, at para. 49:
Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.
[99] When it comes to items to be seized, they must be listed with sufficient particularity that officers know what they are permitted to seize. While the items authorized for seizure do not need to be listed with “scrupulous exactitude”, enough detail is required that the searching officers are both guided and limited in their actions: Re Church of Scientology et al. v. The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), leave ref’d [1989] 1 S.C.R. vii. Providing a clear list of items to be searched for ensures that officers are not authorized to engage in fishing expeditions. The list of items to be seized is a critical component of any search warrant. To fail to provide one is to authorize a limitless search.
[100] There is an additional factor operative in this case, arising from the fact that the search involved electronic devices. Appendix A to the ITO did not simply request the seizure of electronic devices, it contained “terms and conditions” for the later search of those items at the technological crimes unit. The terms and conditions set out the categories of data to be looked for.
[101] In Vu, at para. 54, Cromwell J. treated computers “as if they were a separate place of search necessitating distinct prior authorization”. Appendix A to the ITO responds well to this direction. Read as a whole, it requests the seizure of the electronic devices in order to search for evidence of the alleged crimes.
[102] While search protocols are not constitutionally mandated in Vu, and, in fact, may interfere with a proper search, warrants should not authorize a fishing expedition when it comes to electronic devices: Vu, at paras. 59-62. Having regard to the unique and highly private sphere engaged when searching electronic mediums, at a minimum, issuing justices are required to turn their minds to the environment in which the search will take place and impose conditions where appropriate: “ … authorizing justices must assure themselves that the warrants they issue fulfil the objectives of prior authorization as established in Hunter. They also have the discretion to impose conditions to ensure that they do.” [Vu, at para. 62.]
[103] It is against this backdrop that I consider the applicant’s suggestion that the warrant was deficient because there was no appendix A. While I find that the police operated on the assumption that the scope of the judicial authorization included appendix A to the ITO, I have no confidence that this appendix actually formed part of the warrant. Nor do I have confidence that the issuing justice turned her mind to appendix A and the items to be seized. I say this for a few reasons.
[104] First, appendix A contains a header as follows: “This Appendix ‘A’ forms part of the information to obtain a search warrant pursuant to section 487 of the Criminal Code of Canada for the place located at 66 Barr Crescent, Brampton Ontario”. With this header, the appendix itself announces that it is not part of the warrant. Indeed, this header would undermine one of the very purposes of a search warrant, to inform the individual whose privacy interests are impacted about the colour of authority for the search.
[105] Second, appendix A to the ITO starts with the words, “The informant says that he has reasonable and probable grounds to believe and does believe that there are certain things, to wit …”. In order to issue a s. 487 warrant, the justice must be satisfied that there are reasonable grounds to believe that there are things at a location that will afford evidence respecting the commission of an offence. The wording in appendix A to the ITO sits uncomfortably with the constitutional and statutory obligation on the issuing justice to form his or her own reasonable belief on these fundamental issues surrounding items authorized to be seized. With the language included in appendix A to the ITO, importing it into the warrant has the effect of suggesting deference to the affiant’s belief.
[106] Third, the “Terms and Conditions” within appendix A to the ITO make reference to “data involving the offences listed in Appendix B”. The terms and conditions read as follows: “The above mentioned items will be analysed by the Technological Crimes unit to look for evidence in the two following data categories. 1. Data involving the offences listed in Appendix B.” [emphasis added] Yet, there is no appendix B to the warrant. [2]
[107] While some of the police officers commented on having seen an appendix B at the briefing, I have no confidence in this fact. My concern arises from the fact that Cst. Shaidle, the officer most closely associated to the execution of the warrant, as the lead technical officer, does not recall seeing an appendix B, including when he consulted the warrant during his later search of the electronic devices. This is concerning because, if the Crown is right that appendix A to the ITO simply became appendix A to the search warrant, to comply with the terms and conditions of search would require reference to a document that does not form part of the warrant.
[108] Fourth, appendix A was not affixed to the Form 5 when it was provided back to Cst. Artkin. Rather, it was included in a package that contained the Form 5 warrant and all three appendices to the ITO, including the grounds for belief. Clearly, the grounds for belief did not form part of the warrant which begs the question, why did the issuing justice provide all appendices back? Was she simply providing back what she had read? Was she simply providing back the working copies that had been provided to her? If appendix A had been handed back on its own, notwithstanding the awkward and wrong misleading wording, it may have supported the inference that the justice at least turned her mind to appendix A and intended it to function as appendix A to the warrant.
[109] As it stands, having handed back all three appendices, it is difficult to know what was intended in relation to the warrant and whether judicial thought was given to the content included in appendix A, including the terms and conditions listed. A search warrant is to reflect the balance between the public’s need for investigation and individual privacy interests. In meeting this objective, the scope of the judicial authorization must be ascertainable. The warrant in this case, leaving uncertainty around what had been authorized, failed to meet this critically important function.
[110] I have no doubt that the police used appendix A to the ITO as if it was appendix A to the warrant. This view is supported by the lack of any complaint by the accused, who holds the onus on this application, that there has been an over seizure. In other words, it appears that the warrant was executed in compliance with appendix A to the ITO. Despite this fact, I am satisfied that the issuing justice did not turn her mind to the list of items to be seized and that there was no actual appendix A to the warrant. This gives rise to a s. 8 breach.
[111] While Crown counsel argued that this type of breach could be remedied by the contents of the ITO, I disagree. Without a list of items to be seized, the search warrant failed to serve its function. While the police proceeded on the assumption that the items on appendix A to the ITO had been authorized for seizure, this was just an assumption. Without a complete warrant, the police were not limited in what they seized from 66 Barr Crescent was unlimited. The warrant was facially flawed and did not serve the important function of constraining police behaviour. In addition, the warrant failed to serve its notice function to those impacted by the search.
[112] This leaves the issue surrounding the alleged Branton error relating to the inclusion of the words “in respect to the commission, suspected commission or intended commission of an offence”. The Form 5 search warrant used by the police in this case is badly out dated and makes reference to the “suspected commission” of an offence. In the ITO, Cst. Artkin swore that he had reasonable grounds to believe that 66 Barr Crescent contained the things in appendix A that would “afford evidence with respect to the commission of an offence against the Criminal Code”. The offence listed on the ITO was possession of child pornography.
[113] The warrant refers to the evidence being sought in respect to the “commission, suspected or intended commission of an offence”. In R. v. Branton (2001), 144 O.A.C. 187, at paras. 35-36, Weiler J.A. considered whether search warrants were invalid on their face because they authorized the search for things as evidence respecting the “commission, suspected commission or intended commission of an offence”. The offence was under the Radiocommunications Act. The warrant issued under s. 487(1)(b) of the Criminal Code, which specifically limits searching for evidence respecting the “commission of an offence”. Justice Weiler commented that searching for evidence of the “suspected or intended commission” of an offence exceeded the lawful authority of a s. 487(1)(b) warrant.
[114] In R. v. N.N.M., [2007] O.J. No. 3022 (S.C.J.), at para. 335, Hill J. maintained that conferring a searching authority exceeding what the grounds support “improperly risks overly broad conduct at the scene of the search”. I agree.
[115] Nonetheless, I do not find that there could have been any confusion at the search scene based on the impugned wording on the face of the warrant in this case. The wording is directly tied to the ITO, which references only the “commission of the offence”. Moreover, having regard to the ITO, there were ample grounds to support the belief that the evidence being sought was in respect to the commission of the listed offences. In other words, there can be no reasonable suggestion in this case that the evidence being sought related to the commission and not simply the suspected commission or future commission of an offence.
[116] In these circumstances, that are different than those in Branton, I find that the words “suspected commission or intended commission of an offence” are superfluous and may be severed from the warrant: R. v. Grabowski, [1985] 2 S.C.R. 434.
XI. Conclusion
[117] In the end, I conclude that there are two Charter breaches in this case: (1) the subscriber information was obtained without prior judicial authorization; and (2) the warrant was missing a judicially authorized list of items to be seized.
[118] I will hear s. 24(2) submissions from counsel on March 13, 2017 at 10:00 a.m.
Fairburn J. Released: March 8, 2017
COURT FILE NO.: CRIM J(F) 753/15 DATE: 2017 03 08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen - and – Tommy Nguyen RULING: Section 8 Charter Voir Dire Fairburn J.
[1] While the ITO makes reference to June 17, 2013, the parties agreed that this was a typo and should read July 17, 2013. The ITO was amended on consent by the original judge hearing this application.