CITATION: R. v. Merritt, 2017 ONSC 1508

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20170306

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McGuire and Eric Taylor, for the Crown

Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

David Berg and Joel Hechter, for Melissa Merritt

Peter Zaduk, Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore

Applicants

HEARD: January 9, 10, 11, 17, 18, 2017 at Kitchener; January 19, 23, 24, 25, 26, 27; February 6, 2017 at Brampton

RULING No. 7: Search of the Trailer

and the Compaq CQ-10 Computer

(Pyramid IV)

RESTRICTION ON PUBLICATION

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

Introduction

[1] Melissa Merritt and Christopher Fattore are each charged with the first degree murder of Caleb Harrison on August 23, 2013. The accused are also jointly charged with the first degree murder of Caleb Harrison’s mother, Bridget Harrison, on April 21, 2010. Christopher Fattore is charged with second degree murder in relation to the death of Caleb Harrison’s father, William Harrison, on April 16, 2009.

[2] Melissa Merritt and Caleb Harrison were previously married. They had two children together. They were involved in protracted custody and access litigation relating to their two children during the time frame of all three of the alleged murders.

[3] Ms. Merritt and Mr. Fattore are common law partners. They have four children together.

[4] A more detailed description of the factual background can be found in my Ruling No. 2: R. v. Merritt, 2016 ONSC 7009.

[5] This ruling deals with violations of s. 8 of the Charter alleged to have occurred in relation to the warranted search of a trailer found on the residential property of the accused, the warrantless seizure from the trailer of two laptop computers and two USB drives not listed in the warrant which were unexpectedly found in the trailer and the subsequent technological examination of those devices.

[6] At the time of these events the applicants were suspects in the investigation.

Background

[7] Caleb Harrison was found dead in his bed on August 23, 2013. This was the same home in which his parents had previously been found dead.

[8] At that time Melissa Merritt and Christopher Fattore were living in a rented home at 8568 Mississauga Road in Brampton, together with their four children. The two children Melissa Merritt and Caleb Harrison had together were staying with the Merritt and Fattore family as part of a period of summer access that was to end that day. Caleb Harrison had legal custody of those two children.

[9] The residence at 8568 Mississauga Road was an older home in a semi-rural area which was at that time at the edge of the city of Brampton. Based on photographs the home was located on a fairly large piece of property. The Agreed Statement of Facts establishes that the applicants had signed a one year lease for the property on July 27, 2013. It also establishes that on September 23, 2013 the applicants and the children left the home and moved to Nova Scotia. The police were aware of that move from a number of sources.

[10] The Agreed Statement of Facts further indicates that the applicants had made arrangements to sublet the home. They did so without the knowledge or consent of the owner of the property. However, there was a dispute between the applicants and the subtenants related to the cleanliness and general state the premises were left in and as of October 1, 2013 the property remained vacant.

[11] Prior to October 1, 2013 the police became aware that the applicants had left a homemade trailer on the property. The police were also aware that a junk removal company had come onto the property and removed a number of items from the residence or the property. This was of obvious concern to the police due to the loss of potential evidence.

[12] On October 1, 2013 Constable Joe Ciftci of the Peel Regional Police (PRP) obtained three search warrants in relation to 8568 Mississauga Road, Brampton. The search warrants were issued at the same time by the same justice of the peace. One was to search the house, one was to search a detached garage and the third was to search the homemade trailer. The items to be searched for were blood, bodily fluids, trace evidence including DNA, fingerprints, hair and fibres, receipts, black latex gloves, notepad/papers with notes, rags, keys and a cylindrical or rod shaped instrument which may have been used as a weapon. The forensic nature of most of the items listed to be searched for is apparent.

[13] Of significance to the arguments raised, each of the warrants provided for entry between 12:00 p.m. and 8:59 p.m. on October 1, 2013.

[14] The applicants do not contest the validity of the warrants. No issues are directly raised with respect to the search of the house or the detached garage. Nothing of significance was found during the search of those areas. However, the applicants do raise a number of s. 8 Charter issues with respect to the search of the homemade trailer.

Overview of the Arguments Related to the Search of the Trailer

[15] To understand the arguments raised with respect to the search of the trailer it is helpful to first review some details about the searches generally.

[16] At 1:15 p.m. on October 1, 2013 Cst. Ciftci attended at 8568 Mississauga Road. He went onto the property and opened the front door to the home. He then closed the front door without entering. The Agreed Statement of Facts (Exhibit 1) establishes, at para. 29, that the police then “maintained observation and control over the premises until the following morning when two of the forensic identification officers previously involved in the investigation, Detective Wendy Sims and Constable Brenda Dawson, could attend to assist in the search of the home, the detached garage and trailer.” I take from this and from the evidence of Csts. Lowe and Dawe, who were assigned to search the trailer, that the forensic officers who were familiar with this complicated case were not available on October 1, 2013. This is a significant factual finding. As the searches were warranted the onus is on the applicants to establish that the search was unreasonable and no evidence has been led by the applicants to contradict this inference which I draw from the agreed facts and the evidence of Csts. Lowe and Dawe. As a result, although the property was placed under the control of the police on October 1, 2013 the trailer was not entered until the following morning.

[17] Csts. Lowe and Dawe testified that while they were tasked to search through the trailer they were not qualified to collect samples for forensic testing. Anything which they identified as falling within the items to be searched for listed in the warrant would have to be brought to the attention of qualified officers from the Forensic Identification Service (FIS). Cst. Lowe testified in cross-examination that he and Dawe were detailed to search the trailer by Det. Sims of FIS who was the on-scene supervisor. Lowe said he arrived at the property at 8:00 a.m. on October 2, 2013. Det. Sims arrived at 8:57 a.m. Lowe testified that he and Dawe started to search the trailer at approximately 9:15 a.m. Cst. Dawe testified that the search of the trailer was not completed until approximately 4:50 p.m.

[18] The homemade trailer appears to be about the size and shape of a small horse trailer. It was made of wood. A door on the side of the trailer was nailed shut. The top of the trailer was covered by a tarp.

[19] When the application was heard the Crown conceded that the applicants had a reasonable expectation of privacy in the trailer and its contents. That concession had not been made at the time the Agreed Statement of Facts was prepared. The applicants acknowledge that they had no remaining privacy interest in the house or attached garage.

[20] Csts. Lowe and Dawe testified that they worked together to remove and examine the contents of the trailer. They found that it was tightly packed with boxes which Cst. Dawe described as containing all the worldly possessions of the applicants.

[21] In the course of going through the boxes the officers found a black Compaq CQ-10 mini laptop computer, a blue Acer Aspire laptop computer and two USB drives, one of which is described as a “Lexar”. The officers testified that they were not expecting to find electronic equipment in the trailer.

[22] Csts. Lowe and Dawe each testified that they immediately recognized that these electronic items were of evidential value. Each testified that they believed that the computers and USB drives would afford evidence of the murders under investigation and that they could be lawfully seized pursuant to s. 489(1)(c) of the Criminal Code. Each officer testified that they were aware of an extensive history of email communications between the applicants and Bridget and Caleb Harrison in relation to a long and bitter court battle over custody and access to the two children Melissa Merritt and Caleb Harrison had together.

[23] They also each testified that they were aware that a downloaded PDF document about a mortise lock had been found on a cell phone previously seized from Melissa Merritt. That phone was used by both applicants. The front door to the Harrison residence had a mortise lock. There was no sign of forced entry at the time Caleb Harrison was found dead inside his residence. I point out that in Ruling No. 4 (R. v. Merritt, 2017 ONSC 80) I found that the search warrant used to conduct the technological analysis on that cell phone was invalid. Consequently, s. 8 of the Charter was violated in the course of locating the PDF in relation to the mortise lock.

[24] In addition, Cst. Lowe testified that he was aware that Christopher Fattore had created a “hate page” on Facebook in relation to Caleb Harrison.

[25] When the Compaq CQ-10 computer was later subjected to technical forensic analysis the police found evidence that the computer had been used to search the internet to find out about killing by strangulation and about matters of financial inheritance, amongst other things. There is evidence that neck compression was involved in relation to the deaths of both Bridget and Caleb Harrison. Caleb Harrison had acquired significant assets due to the deaths of his parents.

[26] It is the evidence of these internet search strings that sit at the top of what counsel and I refer to as Pyramid IV. It is that evidence which the applicants seek to exclude pursuant to s. 24(2) of the Charter on the basis of a number of alleged violations of s. 8 of the Charter. The conceptual “pyramid” refers to the collection of a number of alleged s. 8 violations which form the basis of this application. By agreement of counsel most s. 24(2) issues are to be deferred to a later point in the trial.

[27] Against this background the applicants raise a number of issues in what counsel and I refer to as Part I of the Pyramid IV application. Part II, which I will deal with later, relates to s. 8 issues that arise in relation to the validity and execution of another search warrant that the police later obtained and relied upon to undertake the technological examination of the Compaq CQ-10 computer and other electronic devices located in the trailer.

Part I of this Application

[28] Under Part I the applicants contend that as the warrant to search the trailer specified entry and search between 12:00 p.m. and 8:59 p.m. on October 1, 2013, s. 8 of the Charter was violated because the actual search of the trailer did not take place until October 2, 2013.

[29] The Crown takes the position that the law establishes that while execution of a search must commence within the time specified in a warrant there is no requirement that the search be concluded within the time period specified provided the police are acting reasonably in the execution of the warrant. It is the Crown’s position that when the police entered onto the property at 8568 Mississauga Road at 1:15 p.m. on October 1, 2013, opened and closed the door to the residence and then took control of the entire property in order to preserve evidence and exclude others from the property, they executed the warrant. As the proposed search was forensic in nature and the forensic officers could not attend until the next day, concluding the search after the time specified in the warrant was reasonable when all of the surrounding circumstances are considered.

[30] The applicants disagree. They submit that what Cst. Ciftci did on October 1, 2013 was a sham and cannot be regarded as execution of a search warrant. In the alternative, the applicants contend that, even if what Cst. Ciftci did is found to constitute execution of the warrant to search the house, as a separate warrant was issued for the trailer, the trailer warrant cannot be regarded as having been executed by what the police did in relation to the house. Consequently, s. 8 was violated because the trailer warrant was not executed within the time constraints also imposed in that warrant.

[31] The applicants also challenge the officers’ reliance on s. 489 of the Criminal Code as justification for the warrantless seizure of the computers and USB drives. The applicants submit that Csts. Lowe and Dawe are not credible when they say they considered s. 489 at the time. The applicants submit the officers’ testimony is an after the fact concoction.

[32] There are additional features to this part of the applicants’ submission which I will outline more completely when I deal with this issue in my analysis. Part of the submission is that in formulating their grounds for seizure under s. 489 of the Criminal Code the officers ought not to be permitted to rely on the PDF of the mortise lock because I have since found a s. 8 violation in relation to the discovery of that PDF file. In effect, it is submitted that I must engage in an editing process with respect to the officers’ formulation of grounds for a warrantless seizure, similar to the process that applies in respect of the review of an information to obtain (ITO) a search warrant pursuant to R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115.

[33] As the existence of the objective component of reasonable grounds is acknowledged, this argument is focussed on whether the subjective grounds of Cst. Lowe, in particular, must be edited. The applicants submit that such editing should occur and that in the circumstances that leads to the conclusion that the warrantless seizure of the electronic items cannot be sustained under s. 489 of the Criminal Code.

Analysis

[34] The concluding paragraph of the Agreed Statement of Facts stipulates that the parties agree that there are four issues to be determined with respect to the seizure of the Compaq CQ-10 computer. The first is whether there is a reasonable expectation of privacy in the trailer. I need not deal with that as it has been conceded by the Crown.

[35] The second and third issues as stated by counsel in their agreement read as follows:

b. Whether what Cst. Ciftci did on October 1, 2013 amounted to executing the warrant for the trailer;

c. Whether Csts. Lowe and Dawe were still acting under the authority of the warrant for the trailer on October 2, 2013 when they searched the trailer;

[36] I will deal with these issues together in the next section.

The Execution Issue

[37] In essence, the applicants’ submission is that the search of the trailer was warrantless, and therefore unreasonable, because Csts. Lowe and Dawe did not search it until October 2, 2013 although the search warrant required that the search be carried out between 12:00 p.m. and 8:59 p.m. on October 1, 2013.

[38] In the particular circumstances of this case I am of the view that this argument cannot succeed. My fundamental reason for reaching this conclusion is that, in my view, what the police did on October 1, 2013 within the time specified in all three search warrants, constituted execution of those warrants. It commenced the search process. In the particular circumstances here, the search was forensic in nature, the FIS officers familiar with this complicated investigation could not attend until the morning of October 2, 2013 and the applicants had vacated the premises on which the house, garage and trailer were located. In these circumstances delaying the completion of the search until the next morning was reasonable. See R. v. Woodall, [1993] O.J. No. 4001 (C.A.), affirming R. v. Woodall, [1991] O.J. No. 3562 (Ont. Ct. (Gen. Div.)). At para. 2 of the Court of Appeal’s endorsement in Woodall, Dubin C.J.O. said:

The police were required by the terms of the warrant to enter the premises before 9:00 P.M. They did so. The warrant did not require that the search be completed before 9:00 P.M. In our view, the failure to complete the search by 9:00 P.M. does not invalidate the warrant. It was not suggested that the manner in which the warrant was executed was otherwise unreasonable.

[39] In Woodall the warrant specified, as Higgins J. put it at para. 8 of his trial judgment, “that the hours of effect were 6:00 p.m. to 9:00 p.m.” on August 8, 1990, the day the warrant issued. When the police entered within the specified time they found a very large quantity of stolen goods and firearms. The police sealed the property off and did not seize the evidence until August 9. Both the trial judge and the Court of Appeal concluded that the warrant remained valid until the search was completed in a reasonable fashion.

[40] In James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 7th ed. (Markham: Ont.: LexisNexis Canada, 2007), at p. 184, the authors state: “Where time limits are expressed on the face of the search warrant, it is apparent the search must be commenced within the time specified” (emphasis in original).

[41] In R. v. Rafferty, 2012 ONSC 703, [2012] O.J. No. 2132 (S.C.J.), at para. 28, Heeney J. interpreted Woodall as “clear authority that once the police enter the premises within the time frame specified in the search warrant … the warrant remains operative until the police complete their search and finally leave the premises” (citation omitted). A similar conclusion was reached in R. v. Brown, 2010 ONSC 2280, at paras. 22-23.

[42] I observe that in Woodall and Rafferty reference was made to the “premises”. I agree with the respondent’s submission that the reference to “premises” is significant. In each of the three search warrants issued for the searches of the house, the detached garage and the trailer, the warrants specify that the police are authorized and required to enter “into the premises” between the hours set out. Each of the three warrants, which are in Form 5 as permitted by s. 487 of the Criminal Code, particularizes the “premises” as “8568 Mississauga Road”. In these circumstances it seems to me that what the police did on October 1, 2013 within the time frame specified in all three warrants was an action undertaken in respect of each of the three warrants. It is artificial to say, as the applicants submit, that what the police did falls solely under the auspices of the warrant issued to search the house. The police did more than simply open and close the door to the house. They entered onto the premises on which the house, the detached garage and the trailer were located. They assumed control over the entire property. They secured the property and took steps to exclude others from it. Sentries were posted. All of these things would have constituted illegal conduct in the absence of the warrants: see R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38, at para. 140; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 12.

[43] In combination these factors satisfy me that the police entered the premises described in all three of the warrants, including the trailer warrant. They did not enter the trailer itself, which was a receptacle or place to be searched, but they entered the premises specified in the warrant relating to the trailer. They were in control of the trailer and of the entire property. Based on Woodall the focus then shifts to a consideration of whether the search was otherwise reasonable.

[44] I wish to mention some additional authority which I was referred to regarding the meaning of the word premises.

[45] In R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319 the court noted, at para. 75, that the terms “building”, “receptacle”, “place” and “premises” are not defined in the Criminal Code. In a thorough analysis the Manitoba Court of Appeal held that “premises” has come to be understood as a house or building along with its grounds (para. 83), real property (para. 85) or something greater than a house but possibly less than an entire property (para. 87), and that it is frequently used to mean residences, outbuildings and the land surrounding such structures (para. 87). All of this is of assistance in the context of the present case where the premises is described in the same way in respect of each of the three places to be searched, including the trailer. It supports the conclusion that by entering and securing the entire property the police executed each of the three warrants.

[46] The applicants submit that the police conduct in this case was, in essence, high-handed. It is submitted they simply disregarded the constraints specified in the warrant. I am far from satisfied that that is the case. The terms of the warrants specified that police were authorized to enter the premises between the stated hours and to search. The police did not proceed with search activity until the forensic investigators familiar with the investigation could attend. There was not much delay until that occurred. The warrant did not require that the search be concluded within the specified time frame. There is no evidence before me that the police were acting in bad faith or that they knew the forensic investigators were not available on October 1, 2013 when the warrants were obtained. There was a continuing danger that evidence could be lost if the police did not take control of the property.

[47] While the PRP is a large municipal police service and no doubt employs several FIS officers, it is also a very busy police service. I am of the view that a short delay so that FIS officers already involved in this complicated investigation might attend was reasonable in circumstances where no one was living at the property and no one suffered inconvenience or additional interference with their rights or activities. The FIS officers who could not attend until October 2 were familiar with what had become a fairly complex investigation of three murders occurring over the course of five years. Forensic evidence played a significant role in the investigation.

[48] Additional support for my conclusion is found in R. v. Veranski, 2012 BSSC 220. In that case the police received a tip that a drug lab was operating in a small room inside an auto repair shop. The police obtained a search warrant which authorized entry between 10:00 p.m. on May 24 and 10:00 a.m. on May 25, 2007. The police entered the room during the period specified and took note of the room’s contents but were not able to arrange for the necessary protective gear to conduct a safe search of the premises until after 10:00 a.m. on May 25. The search continued into May 26. The court held, at para. 108, that the search did commence within the hours of the warrant as the police entered the premises and made a visual assessment within the hours specified in the warrant. At para. 114 Ker J. held: “Entry, taking control of a premises and conducting a visual search of the area in issue all constitute a search in law.” At para. 115 Ker J. placed reliance on Woodall, R. v. Cardinal, 2003 BCSC 158 and R. v. Picton, 2006 BCSC 1090, as well as other cases.

[49] Counsel for the applicants attempt to distinguish Woodall and Veranski on the basis that the police were faced with more complex circumstances in those cases which made failure to complete the search within the time specified in the warrants understandable. However, broadly stated I view these cases as holding that entry, in a case where the search is not otherwise conducted in an unreasonable fashion, constitutes execution of the search. I also view the present case as having some complexity, particularly from a forensic standpoint.

[50] The applicants submit that if all that is required to constitute execution is opening and closing a door the police could delay conducting any search for prolonged periods of time or use this as a basis for returning to the premises at their leisure. I do not accept this submission. If the execution of a search becomes unreasonable there will be a violation of s. 8 of the Charter. The question of compliance with s. 8 will depend upon an assessment of the specific conditions in the warrant and the conduct of the police evaluated in the context of all the surrounding circumstances. My determination is context specific and based on the facts of this case. I have taken all of the surrounding circumstances established by the evidence into account.

[51] The applicants also submit that because the judgment of the Court of Appeal in Woodall is in the form of an endorsement all it did was approve of the approach taken by Higgins J. on the facts that were before him. Reliance is placed on R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 12. There Juriansz J.A. said: “While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in an endorsement as brief as in [the Court of Appeal endorsement relied upon in that case]”.

[52] In Singh a summary conviction appeal judge had relied upon a very brief endorsement of the Court of Appeal as a basis for distinguishing a well-established principle clearly articulated in a number of written judgments of the Court of Appeal. Juriansz J.A. pointed out the summary conviction appeal judge erred because he failed to appreciate that the issue in the case dealt with by endorsement which he relied upon was different than the issue that was settled by other written judgments of the Court of Appeal. At para. 12 he wrote: “When the court intends to articulate principles for the first time, it does so in a written judgment”.

[53] As the respondent acknowledges, what Dubin C.J.O. said in Woodall may not be as significant as a full written judgment of the court. However, I have not been provided with any authority contrary to the principle applied there and other courts have taken guidance from Woodall. In the circumstances I am not persuaded that the comments of Juriansz J.A. referred to from Singh have direct application beyond his comment that all decisions of the Court of Appeal are binding.

[54] For the foregoing reasons I conclude that the search of the trailer was executed in a reasonable fashion and in accordance with the terms of the warrant.

The Warrantless Seizure Issue

[55] While searching the trailer Csts. Lowe and Dawe found the two laptop computers and two USB drives previously referred to. Each testified that they recognized that those devices were not covered by the warrant. Each testified that those devices were seized pursuant to the authority of s. 489(1)(c) of the Criminal Code.

[56] The fourth issue stated by counsel at para. 40 of the Agreed Statement of Facts (Exhibit 1) is: “Whether the seizure of the Compaq Q10 (sic) was justified under s. 489 of the Criminal Code”. Section 489(1)(c) of the Criminal Code reads as follows:

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

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

[57] The applicants submit that as the seizure of the electronic items was warrantless the Crown bears the burden of establishing that the search was reasonable. They submit that I should find that Csts. Lowe and Dawe are not credible in claiming that they relied on s. 489 of the Criminal Code at the time of the seizure. They base this submission on a number of factors, including that neither officer made a note that the seizure was made pursuant to s. 489. They submit that the reliance on s. 489 is a fabrication conjured up by the police after the fact.

[58] As indicated by Fuerst J. in R. v. Little, 2009 CanLII 41212 (ON SC), [2009] O.J. No. 3278 (S.C.J.), at para. 146: “Before seizing an item under s. 489(1)(c), the seizing officer must form a belief on reasonable grounds that the item will afford evidence of an offence. This requires the seizing officer to turn his or her mind to what evidence the item will yield.”

[59] Aside from the lack of notes, the applicants claim that the officers’ lack of credibility is based in large measure on an inconsistency between Cst. Lowe’s testimony at the preliminary inquiry and his testimony on this application. The inconsistency relates to whether Cst. Lowe, whom the two officers considered to be the seizing officer, relied upon more than his knowledge of the PDF file of a mortise lock found on a cell phone previously seized from Melissa Merritt, in formulating his grounds for the warrantless seizure. The attack on the credibility of both officers is also based on alleged differences and contradictions in their evidence regarding the extent to which they discussed the case and how they prepared to give evidence.

[60] As part of their attack on the officers’ credibility the applicants allege that the officers have completely concocted a story about Cst. Lowe accompanying Cst. Dawe to the Harrison residence on September 14, 2013 where they observed files full of correspondence about the child custody dispute in order to provide a stronger basis for their claim that they immediately recognized the evidential value of the laptop computers and USB drives when they found them in the trailer.

The Evidence of Csts. Lowe and Dawe

[61] Csts. Lowe and Dawe were assigned to work together to search the trailer. Prior to commencing the search they reviewed the warrant and were aware of the description of the items listed in the warrant that they were searching for. As they were not qualified to collect forensic samples, if anything of significance was located the item was to be brought to the attention of an FIS officer, who would photograph the item, collect any forensic samples, and secure the item.

[62] The officers pried the side door to the trailer open. They then worked side by side over the approximately seven hours it took to remove the tightly packed boxes from the trailer. The contents of each box were examined. Numerous photos of the search process form part of the evidence.

[63] Cst. Lowe testified first on this application. Crown counsel’s questions focused on the finding of the laptop computers and the two USB drives. Cst. Lowe testified without hesitation that he relied on s. 489(1)(c) of the Criminal Code to make the seizure. Although Csts. Lowe and Dawe referred to Cst. Lowe as the seizing officer, I observe that they both repeatedly used the word “we” when referring to what they believed and why they thought there were grounds to seize these items. This is of some significance as will become apparent.

[64] During cross-examination of Csts. Lowe and Dawe counsel for the applicants asked questions to develop the theory that Cst. Lowe was the sole seizing officer and that he made the decisions about what to seize and did so on his own. This approach was not entirely successful in my view.

[65] Mr. Zaduk suggested to Cst. Lowe that the officer was clear that he had no discussions with any other officers while searching the trailer as to what he found or why he seized it. Cst. Lowe responded that there were discussions about what was found but not in terms of why the items were seized. Lowe said in examination-in-chief that there were conversations between himself and Cst. Dawe but that he could not remember the content of the conversations.

[66] It has been submitted that Cst. Dawe gave evidence on this point that was different than Cst. Lowe’s. While Cst. Dawe’s evidence on this point is not exactly the same as Cst. Lowe’s, I do not find his evidence on this particular point to be significantly different. During cross-examination Mr. Zaduk expressed surprise when Cst. Dawe said that he did discuss what was in his mind with Cst. Lowe when the items were seized. Dawe explained that he and Lowe were conducting the search together. They were talking to each other. He said when they would find an item to be seized they would say, “Hey, I think this item’s important.” They would set that item aside and call one of the FIS officers over. As Cst. Dawe put it, “We had made the decision to seize the property and her role was to be the exhibits officer and document and tag the property.” In examination-in-chief Dawe said that if Lowe had not seized the items he would have. This is also of some significance.

[67] In cross-examination Cst. Dawe said he could not recall the exact content of his conversation with Cst.Lowe. He and Lowe were working side by side. He thought they were probably speaking in “layman’s terms”. He said: “I would imagine we had a conversation to say that these computers are going to be important and we were mindful of the fact that there was a historical aspect to this case and that we had seen previous correspondence that would lead us to believe that there was important evidence to be gleaned from these computers.” He added that the discussion was not in those exact words.

[68] Asked if it was a joint decision to seize, Cst. Dawe responded: “I would say no. I would imagine it was – Laurence [Lowe] would have made that decision but I was there while he found the computers.” Cst. Dawe said they were not discussing grounds but that the computers were going to be “good for the case” as the “other half of the correspondence” he was aware of that had already been seized would likely be found on those computers. He was referring to correspondence between Melissa Merritt and the Harrison family in regards to the custody dispute over the children. The custody dispute was thought to be one of the motives for the murders.

[69] I would comment at this point that Cst. Dawe’s evidence makes common sense. He also gave this evidence in a fashion that leads me to accept it. I formed the impression he was trying to paint as accurate a picture as possible. He was agreeing with some of what was being suggested to him but was striving to accurately delineate and circumscribe those concessions. I accept this part of his evidence which I do not find to be significantly different than Cst. Lowe’s.

[70] Cst. Lowe testified that he understood that s. 489 required that he have reasonable grounds to believe at the time of the search that the items to be seized would provide evidence of the murders the police were investigating. He said his reasonable belief was based on a number of factors. He was aware of a great deal of correspondence between Melissa Merritt and Bridget Harrison and members of the Harrison family in relation to the custody dispute over the children. He expected that the computers and USB drives would contain evidence of that correspondence.

[71] The Crown led evidence from Cst. Lowe and Cst. Dawe that they had been to the Harrison residence on Pitch Pine Crescent in Mississauga on September 4, 2013 as well as October 1, 2013; just the day before the seizure. Both officers testified that on September 4, 2013 they went into the Harrison home looking for passwords for a computer router. In the course of that search they saw, and to some extent examined, filing cabinets with labels on various drawers referring to the correspondence related to the custody dispute. Csts. Lowe and Dawe testified that on October 1, 2013 they went back to the Harrison residence to seize that correspondence.

[72] In addition to the correspondence Cst. Lowe said he also based his grounds on the downloaded PDF of the mortise lock found on the phone seized from Melissa Merritt. That suggested to him that other similar evidence would likely be found on the electronic devices located in the trailer. In addition, Cst. Lowe said he was aware from two sources that Christopher Fattore had created a “hate page” on Facebook in relation to Caleb Harrison. One source was the briefing notes for the investigation and the other was from speaking to Jane Blackwell, a friend or relative of the Harrison family. This made it likely that the computers would afford evidence of the offences.

[73] In cross-examination it was established that when testifying at the preliminary inquiry about the warrantless seizure of the electronic items, Cst. Lowe said only that he relied on the finding of the PDF of the mortise lock as the basis for his grounds. He was asked at the preliminary inquiry whether there was anything else he relied upon and he clearly stated that there was not.

[74] Asked in re-examination whether he had any explanation for this significant inconsistency, Cst. Lowe said that this was his first major case and that he was nervous when he testified at the preliminary inquiry. He said the PDF was the only thing that came to his mind at that time. I note that Det. Lowe had been a police officer for about 12 years when he testified at the preliminary inquiry.

[75] In cross-examination Cst. Lowe maintained that despite what he said at the preliminary inquiry he had in fact taken all of the circumstances he was referring to in his current testimony into account when he formulated his grounds to seize the laptop computers and USB drives. It was suggested to him that he had only recently come up with the correspondence and hate page bases for his reasonable grounds in response to learning of my ruling that the warrant on which the finding of the PDF was based was invalid. He denied that. It then became apparent that Cst. Lowe had revealed the additional bases for his reasonable grounds to Crown counsel in preparation for this application. That revelation had been disclosed to the defence by way of email the day before my ruling as to the invalidity of the warrant was released.

[76] While the timing of this disclosure in relation to the release of my ruling impacts the analysis it does not eliminate the implications of the change in Cst. Lowe’s testimony. This is particularly so having regard to some of the testimony of Cst. Dawe regarding an email he prepared for Crown counsel back at the time of the preliminary inquiry, setting out in detail why he felt there were reasonable grounds for the seizure of the electronic items pursuant to s. 489 of the Criminal Code. Cst. Dawe testified that he learned prior to this application that Cst. Lowe was aware of that email.

[77] This raises the possibility that Cst. Lowe modified his testimony based on that email in order to bring his evidence into line with Cst. Dawe’s evidence, and to avoid any problem with the seizure of the electronic devices should my ruling that the PDF was found pursuant to an invalid warrant impact the formation of the grounds he could rely upon to seize the computers and USB drives pursuant to s. 489.

[78] Cst. Dawe testified that he was in contact with Crown counsel prior to his testimony at a discovery hearing held as part of the preliminary inquiry in this case. He understood that he would be questioned at that hearing about the seizure of the laptop computers and USB drives. He said Crown counsel advised him to prepare. Crown counsel told him he should ensure that he knew what he did and why he did it. As a result he sent an email dated January 28, 2016 to Crown counsel outlining his grounds for the warrantless seizure of the electronic items. He prepared the email after reviewing his notes, the case briefing notes, all of the photographs of the search and s. 489 of the Criminal Code. That email is Exhibit 6. He explained that different fonts appear in the email because he cut and pasted parts of it from another document.

[79] In the email Cst. Dawe lists five grounds for concluding that the seized electronics will afford evidence in respect of two of the three murders under investigation. He made specific reference to the downloaded PDF of the mortise lock and to the previous known correspondence between the applicants and the Harrison family related to the “heated custody battle”. In those grounds he made reference to his previous attendances at the Harrison residence where he observed the “meticulous files” kept by Bridget Harrison, to the fact that computers are a means of communication, to the fact that the computers appeared to be older and to the case having historical aspects. I observe that the email contains no reference to the “hate page” referred to by Cst. Lowe in his testimony.

[80] Cst. Dawe’s email to Crown counsel on January 28, 2016 was a few days before Cst. Dawe testified at the discovery hearing. It was after Cst. Lowe testified at the preliminary inquiry on January 20, 2016 that he relied only on the PDF of the mortise lock.

[81] During cross-examination by Mr. Zaduk Cst. Lowe testified that he was aware that Cst. Dawe had prepared the email. Cst. Lowe said Cst. Dawe told him about it four to five days prior to their testimony on this application. Lowe said he did not recall how that discussion came about. He thought Dawe was preparing to testify and added, “So he wanted me to be prepared as much as he was”. When it was suggested, therefore, that they had “conferred” about their evidence, Lowe said, “I guess so”. He said that took place in the Homicide Bureau.

[82] Cst. Lowe said that he and Dawe had talked about their evidence on other occasions. He could not recall when but said it was possibly before the preliminary inquiry. He then changed that evidence and said they had talked about their evidence after the preliminary inquiry. However, they did not discuss the evidence they actually gave at the preliminary inquiry. They simply discussed “general topics”. That was possibly during the summer prior to this application and four to five days prior to the commencement of this application. Cst. Lowe testified that he never told Cst. Dawe of his reasons for seizing the computers or USB sticks.

[83] Surprisingly, Cst. Lowe was not asked if he had ever seen or obtained a copy of Cst. Dawe’s email of January 28, 2016. It has not been established whether he was aware of its contents.

[84] In cross-examination by Mr. Hechter Cst. Dawe said he prepared the email dated January 28, 2016 as a sort of summary of his notes for the Crown. In cross-examination by Mr. Zaduk Dawe testified that he met with both Crown counsel after sending the email and prior to his testimony at the discovery. Cst. Dawe said that while he and Cst. Lowe had “talked about it”, which I take to mean the seizure of the electronics, he said he prepared the email without any input from Cst. Lowe. He described his discussion with Cst. Lowe as along the lines of, “Hey, we have to testify next week.” Dawe said that every time they were notified of a step in the proceedings they would talk to each other. He said there were several officers involved in this case who were working in the same office. Cst. Dawe said that while he and Cst. Lowe talked they did not discuss what went into Dawe’s email. However, he added that they had discussed the reasons why the items in question were seized. He could not say specifically when that was. In terms of compiling the email, Cst. Dawe said that there were things throughout his notes that assisted him.

[85] Cst. Dawe readily admitted in cross-examination that he had recently had discussions with Cst. Lowe about their both being required to testify. That was all they talked about. He said they did not talk about the reason for seizing the electronics but he added that he understood Lowe was made aware of the email. He did not think Cst. Lowe knew of the email when it was sent but thought Cst. Lowe had it “after the fact”. He said he thought Lowe was just recently made aware of the email.

[86] In re-examination Cst. Dawe testified that he had never seen Cst. Lowe in possession of a copy of the email. He also said that Cst. Lowe at no time advised him that either Crown counsel had provided a copy of the email to him. Cst. Dawe clarified that all he could say was that Cst. Lowe was aware of the email.

[87] I wish to add at this point that counsel for the applicants make no allegation that Crown counsel were involved in any way in making Cst. Lowe aware of the email prepared by Cst. Dawe. The conduct of Crown counsel has not been impugned in anyway during submissions or otherwise.

[88] The fact remains, however, that Cst. Lowe was aware of the email. However, there is no clear evidence that he saw the email or had a copy of it.

[89] The evidence I have referred to so far was given the first time Csts. Lowe and Dawe testified. However, counsel for the applicants applied to reopen the case to cross-examine the officers on additional matters. Crown counsel did not object and the application was reopened.

[90] When the officers testified the first time, Crown counsel led evidence from each of them about attending the Harrison residence on September 4 and again on October 1, 2013. Crown counsel elicited this evidence to demonstrate that each of the officers had firsthand knowledge of the extensive correspondence between the applicants and members of the Harrison family in relation to the court custody battle being waged over the children. The officers each testified about the carefully organized filing cabinets they had seen, and to some extent gone through, on September 4 and October 1, 2013. The October 1 attendance at the Harrison residence was to seize that very correspondence. I observe that the applicants do not challenge that Cst. Lowe attended on October 1, 2013. That was just the day before the computers and USB drives were seized from the trailer.

[91] The purpose of reopening the evidence was to put to the officers the suggestion that Cst. Lowe was never in attendance at the Harrison residence on September 4, 2013. Counsel for the applicants cross-examined the officers to suggest that this was a complete after the fact fabrication invented to assist Cst. Lowe in establishing a basis for his testimony that he was well aware of the “correspondence” basis for grounds to seize the computers and USB drives on October 2, 2013. The attack was mounted largely on the basis of what is and what is not recorded in the notes of both officers.

[92] In cross-examination by Ms. Myers, Cst. Lowe agreed that he had no note of attending the Harrison residence on September 4, 2013. He said he made no notes because Cst. Dawe was making notes. Cst. Lowe could not provide evidence as to the time of his attendance as he had no notes to refresh his memory.

[93] Cst. Lowe’s notes indicate that he attended the morning briefing between 8:15 and 9:10 a.m. on September 4, 2013. His next note indicates that he was reading Belinda (Bridget) Harrison’s diary. He said he was doing that at the Homicide Bureau. His notes contain an entry at 12:59 p.m. regarding observing an entry in Bridget Harrison’s diary for July 20, 2006. Based on the evidence overall, if he had attended the Harrison residence he would either still have been at the residence at that time, or more likely in transit back to the Homicide Bureau. Cst. Lowe tried to explain the entry in his notebook at 12:59 p.m. on the basis that he may have taken Bridget Harrison’s diary with him when he attended the Harrison residence with Cst. Dawe. It is plausible that he may have taken the diary to read in the car. This would fit with what I know about times. The evidence is that it may have taken one half hour to drive to the Harrison residence.

[94] Cst. Lowe has a note that at 1:20 p.m. he received a white Kingston jump drive from P.C. Dawe. According to Cst. Dawe he (Dawe) received that jump drive from Stephanie Dunn who attended at the Harrison residence while he and Lowe were there. The jump drive was said to contain data from Caleb Harrison’s online dating account. Stephanie Dunn was a friend of the Harrison family and was acting as a caretaker of the Harrison residence after Caleb Harrison’s death.

[95] Cst. Lowe did not testify at the preliminary inquiry about being at the Harrison residence on September 4, 2013. I have no evidence he was asked about that at the preliminary inquiry.

[96] As this case was a major case, officers were expected to “brief in” their activities to the central briefing notes. The briefing notes for September 5, 2013 do not reflect that Cst. Lowe attended the Harrison residence the previous day.

[97] Cst. Dawe was also recalled for further cross-examination. He had no note that Cst. Lowe was with him at the Harrison residence on September 4, 2013. He agreed he had no notes about the filing cabinet or his activities at the Harrison residence on September 4, 2013. In some respects his evidence about Cst. Lowe’s whereabouts in the Harrison residence on September 4, 2013 at the time Stephanie Dunn arrived, could be viewed as in conflict with Cst. Lowe’s evidence on the same point. However, he steadfastly maintained that Cst. Lowe was with him. Cst. Dawe’s contribution to the briefing on September 5, 2013 did not mention that Cst. Lowe was with him the previous day.

[98] Cst. Dawe described receiving the white jump drive from Stephanie Dunn at the Harrison residence on September 4. He has a note that he turned that over to Cst. Lowe later at the Homicide Bureau. Cst. Lowe was acting as the liaison officer with the Technical Crimes Unit (TCU). Asked why if Cst. Lowe was with him he did not turn the jump drive over to Cst. Lowe at the Harrison residence, Cst. Dawe said he thought it was because Stephanie Dunn had given it to him specifically and he simply did not transfer it to Lowe until they returned to the Homicide Bureau. He maintained that Cst. Lowe was with him at the Harrison residence on September 4, 2013. He said they went through the filing cabinets that contained the correspondence as part of their efforts to find the password and manual for the computer router.

[99] Cst. Dawe said he and Cst. Lowe probably left the Homicide Bureau at about 11:30 a.m. on September 4 in order to meet Stephanie Dunn at 12:00 noon at the Harrison residence. He estimated that it would have taken them about half an hour to return to the Homicide Bureau and that 1:20 p.m., when he turned over the jump drive, was shortly after they returned. This is my basis for saying that Cst. Lowe was probably in transit when he noted at 12:58 that he was looking at a particular passage in Bridget Harrison’s diary.

[100] The re-attendance of these officers for further testimony also resulted in another round of cross-examination about discussions between them concerning their evidence. Cst. Lowe was cross-examined about what sparked his memory concerning September 4, 2013. It could not have been his notes as he did not have any. It could not have been the briefing notes as they made no mention of this. When counsel suggested that it was a conversation with Cst. Dawe that refreshed his memory, he said it was. However, he said he did have some independent recollection of attending the Harrison residence on September 4. Counsel referred him to his previous day’s evidence where he said Dawe wanted him to be as prepared as he was. Cst. Lowe then agreed with the suggestion that he and Cst. Dawe “conferred” about their evidence. What exactly he meant by that was never developed.

[101] Cst. Lowe then agreed with Ms. Meyer’s suggestion that at the preliminary inquiry when he was asked about his grounds for seizing the computers the only thing he could remember was the PDF of the mortise lock. Ms. Myers then suggested that was the only thing that he remembered before meeting with Cst. Dawe. However, a specific time frame for such a meeting was not specified. Cst. Lowe answered as follows:

No. There were other items. It’s just I again, my testimony at that time and my testimony now, with reviewing everything and gong (sic) through the briefing notes and my notes – this is my first major case and at that time things just kind of got lost in my mind and that’s the only thing I remembered at the time during the prelim and this time around I made sure that I was better prepared and reviewed more notes; reviewed my notes, the briefing notes just to be ready for this hearing.

Cst. Lowe then agreed with the further suggestion that he went through his grounds for seizing the computers with Cst. Dawe before he testified on this application.

[102] Towards the end of Cst. Dawe’s cross-examination by Ms. Myers he was asked about his contact with Cst. Lowe in the four or five day period prior to their previous testimony on this application. Cst. Dawe said they did not discuss their evidence at all during that time. I note that this was in the context of questioning that had focused on the events of September 4, 2013. That seems not to have been the focus of Cst. Lowe’s answer quoted above. Cst. Dawe was then asked twice specifically if he and Lowe had discussed what happened on September 4, 2013 and he said they had not. He said he did not remind Cst. Lowe that they were together on September 4. Cst. Dawe denied that they discussed the importance of what they saw at the Harrison residence on September 4 to their grounds for seizing the computers. He denied telling Cst. Lowe that “you wanted to prepare him so that he was just as prepared as you were”. I point out that Cst. Lowe did not testify that Cst. Dawe spoke such words to him. Rather Cst. Lowe said: “I think he just said he was prepping for this case because he knew that he might have to testify so he knew that he and I did the warrant at the house so he wanted me to be prepared as much as he was.”

[103] Cst. Dawe did then agree that he did not collaborate in any way in relation to Cst. Lowe’s evidence or his own evidence. Once again, what exactly he meant by not collaborating was not clarified further.

[104] The evidence summarized above certainly raises issues concerning the credibility and reliability of the officers’ testimony. As I will explain, I am of the view that not all of those credibility and reliability issues need to be resolved in order to determine whether the warrantless seizure of the electronic devices in question fell within the scope of s. 489 of the Criminal Code. However, at this stage it is also important to mention that my assessment of Cst. Lowe’s credibility and reliability is impacted by further conflicting evidence I heard in relation to Part II of the Pyramid IV application. I will refer to that briefly now.

[105] After the computers and USB drives were seized they were submitted to TCU on October 9, 2013. An issue to be dealt with in Part II is whether they were submitted for storage pending receipt of a warrant for their analysis or whether they were submitted for analysis at that point. Cst. Lowe did the submission.

[106] On October 10, 2013 Cst. Lowe attended in TCU and viewed at least some of the contents of the Lexar USB drive. He testified that in the midst of that review it occurred to him that a further warrant was required. Cst. Lowe was asked what he did to alert Cst. Ciftci, who was the affiant for ongoing ITOs and other judicial authorizations then in progress. Cst. Lowe said that he did not alert Cst. Ciftci about this error because he met with Det. Arnold, the lead investigator, and Det. Sgt. Randy Cowan, the major case manager, and had a 30 to 45 minute conversation with them about what he had done and its significance. Cst. Lowe said he left it to them to deal appropriately with his mistake.

[107] Both Det. Arnold and retired Det. Sgt. Cowan testified that no such meeting ever took place. Cst. Lowe has no detailed notes of any such conversation. He has one brief entry in his notebook that he says may refer to that conversation but which appears to me to be more or equally consistent with a conversation with someone in TCU. He certainly has no pointed or detailed note that any such conversation took place with the senior officers. He was also unable to provide significant details of what was discussed.

[108] I will say more about this conflicting evidence in Part II. I have, however, taken the evidence I heard in connection with those additional issues into account in assessing the credibility and reliability of Cst. Lowe’s evidence in relation to the warrantless seizure issue I am currently dealing with.

The Validity of the Warrantless Seizure

[109] I have reached the conclusion that the laptop computers and USB drives found in the trailer were lawfully seized pursuant to s. 489(1)(c) of the Criminal Code. I have reached this conclusion for a number of reasons.

[110] First, no one disputes that Cst. Lowe has always maintained that he relied on the finding of the downloaded PDF of the mortise lock on the cell phone seized from Melissa Merritt as a basis for concluding that there were reasonable grounds to believe that the electronic devices found in the trailer would afford evidence of the murders. There were reasonable grounds to believe that the same or similar downloads would be stored on the laptop computers and/or the USB drives.

[111] No one has submitted that Cst. Lowe’s knowledge of the PDF of the mortise lock was insufficient to anchor a conclusion of reasonable grounds. Rather, counsel for the applicants have submitted that because I subsequently held that the PDF of the mortise lock was found in the course of a s. 8 violation it must be “edited out” of Cst. Lowe’s grounds.

[112] The applicants submit that I should disbelieve Cst. Lowe’s evidence that he also formed his subjective grounds on other bases as well and conclude that there is nothing left to support the requirement that Cst. Lowe had subjective grounds to believe that the electronic items he seized would afford evidence of the murders. Put another way, it is submitted that while even without taking the PDF into account reasonable grounds may exist, as Cst. Lowe was the seizing officer and only considered the PDF, which I must edit out, there are no subjective grounds left to underpin his seizure pursuant to s. 489. The satisfaction of the objective component of reasonable grounds based on the other considerations Cst. Lowe now refers to is inadequate as both the subjective and objective components must be established before the Crown can discharge its onus to justify the warrantless seizure pursuant to s. 489.

[113] I do not accept the basic premise of the applicants’ argument that, to the extent Cst. Lowe’s subjective grounds rest on something that the court later found to have been obtained in consequence of a s. 8 violation, his subjective grounds must be edited or altered as would be the case in determining whether a warrant could issue on the basis of an ITO modified on review. It seems to me that whether an officer had subjective grounds for a seizure must be determined on the basis of what the officer knew at the time of the seizure.

[114] I have not been referred to any cases which deal directly with the applicants’ assertion that in the context of a warrantless search an officer’s subjective grounds must be edited or modified to eliminate unconstitutionally obtained information from consideration.

[115] I have been referred to R. v. Dhillon, [2014] O.J. No.5082; reversed on other grounds, 2016 ONCA 308, which counsel submit considered a similar issue.

[116] In that case Conlan J. found that the police had arbitrarily stopped and illegally searched C.N. who they believed had just engaged in a drug transaction with the accused. The police found a significant amount of cash on C.N. They considered that as part of their grounds for subsequently arresting the accused. In determining whether the arrest of the accused was justifiable Conlan J. concluded, at para. 124, that he did not think it was fair to consider what happened with C.N. in determining whether the police had grounds to arrest the accused. He commented that ignoring the police misconduct involving C.N. would turn a blind eye to fairness and send the wrong message to the police. He “excised” what happened with C.N. when considering whether there were grounds to arrest the accused.

[117] I observe, however, that Conlan J excised what happened with C.N. in relation to whether there were objective grounds and not from the arresting officer’s subjective grounds. This is clearly stated at paras. 134, 202 and 203 of the judgment. At para. 121 Conlan J. also found as a fact that the police officers involved in the arrest of the accused knew at the time they arrested C.N. that they did not have grounds to do so. They had knowledge of the illegal arrest of C.N. before they used information from that arrest to build grounds to arrest the accused. Consequently Dhillon does not support editing the officer’s subjective grounds and the editing of the objective grounds was based on their knowledge of their prior illegal conduct in relation to C.N.

[118] I have considered R. v. Butters, 2014 ONCJ 228; aff’d 2015 ONCA 783. In that case, at paras. 30 and 40, Paciocco J. concluded that the seizure of a computer was unreasonable because the seizing officer’s subjective grounds depended upon that officer’s own prior unconstitutional viewing of images on the computer. The Court of Appeal, in an endorsement upholding the trial judge’s decision, recounted this without comment. The Court of Appeal’s decision turned on approval of the trial judge’s s. 24(2) analysis admitting the evidence in spite of the breach.

[119] I note that in Butters the officer was obviously aware of his own prior unconstitutional conduct. In the present case the PDF of the mortise lock was found pursuant to a search warrant. Search warrants are presumptively valid until they are set aside. The search warrant in question was not found to be invalid until long after the laptop computers and USB drives at issue here were seized from the trailer. Consequently, Csts. Lowe and Dawe were not in a comparable situation to the officer in Butters.

[120] I draw support for my conclusion that a police officer’s grounds must be evaluated against what the officer knew at the time from a number of cases dealing with the standard against which the statements of an affiant in an ITO are to be measured. In R. v. Paryniuk, 2017 ONCA 87, at para. 47, Watt J.A. held that alleged errors or omissions made by an affiant in an ITO “are tested against the affiant’s reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 122.”

[121] In World Bank Group v. Wallace, at both paras. 121 and 122, the court made the point that a subfacial challenge to an ITO hinges on whether the affiant knew or ought to have known that something stated in support of the grounds for a search was false, inaccurate or misleading based on what was known at the time. At para. 122 the court said this was consistent with the court’s observation in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 that “an error or omission is not relevant on a Garofoli application if the applicant could not reasonably have known of it.”

[122] It seems to me that an officer formulating grounds in the field as a precondition to the exercise of a statutorily authorized warrantless seizure is in much the same position as an affiant, when it comes to the formulation of grounds. The officer is called upon to come to a decision on the basis of what he knows at the time. Subjective grounds are just that – subjective to the person who forms them. The officer either does or does not have an honest subjective belief in grounds based on what he or she knows at the time.

[123] When an ITO is reviewed, unconstitutionally obtained material is edited out. That means it is taken out of consideration in determining whether the warrant could have issued. As that determination is focused on whether a judicial officer could have issued the warrant it is being taken out of consideration in respect of the objective portion of the analysis. However, as the cases I have referred to hold, the accuracy of what the affiant said, which is akin to the subjective part of the analysis, is measured solely against the standard of what the affiant knew or ought to have known at the time.

[124] In this situation Cst. Lowe did not know at the time of the seizure that the warrant pursuant to which the police found the PDF of the mortise lock was invalid. As I have said, search warrants issued by a judicial officer are presumed to be valid until the contrary is found.

[125] Consequently, even if I were to disbelieve Cst. Lowe’s testimony to the effect that he also considered his knowledge of the history of correspondence between the accused and the Harrison family and the “hate page”, a basis would still remain for the subjective component of his reasonable grounds. As mentioned, no one suggests that there were not other objective grounds for the seizure. In these circumstances the seizure is supportable pursuant to s. 489.

[126] While I have serious concerns about the credibility and reliability of Cst. Lowe’s evidence in other respects, he was the technical liaison officer and it was he who located the PDF of the mortise lock on the cell phone. In these circumstances it cannot be doubted that he was aware of the downloaded PDF file. He was not involved in obtaining the invalid warrant. Consequently, he had subjective grounds at the time of the seizure which were also objectively reasonable based on what he knew at the time. Not only that, but despite all of the controversy related to inconsistencies in Cst. Lowe’s evidence and between the evidence of Lowe and Dawe, I am satisfied that Lowe was aware of the correspondence and the hate page. No one suggests he was not present for the seizure of that correspondence from the Harrison residence on October 1, 2013. No one suggests he was not aware of the hate page prior to the seizure at issue. No one challenges that he received that information.

[127] Over the course of both parts of this application Cst. Lowe testified on three separate occasions. Based on his testimony and my observations of him I have reached the conclusion that Cst. Lowe did not conduct himself in an industrious and conscientious fashion with respect to his duties during the parts of the investigation I have heard about so far. His memory appears to be poor. His notes are deficient. It is not surprising that as a result he would be nervous when testifying. I conclude that he likely forgot to mention other obvious considerations that were in his mind at the time the items were seized because he was sloppy in his note taking and did not ensure that he was properly prepared to testify.

[128] Second, I conclude there is a separate basis for finding the warrantless seizure to be valid pursuant to s. 489 of the Criminal Code.

[129] Cst. Dawe testified that if Cst. Lowe would not have seized the electronic items then he would have done so himself. The two officers were working side by side as a team. I accept Cst. Dawe’s evidence that at that time they discussed the seizure in the manner described by him in his evidence. While they considered Cst. Lowe to be the seizing officer that appears to me to be a distinction they made for administrative purposes. They were working together. They saw essentially the same things at the same time. See for example R. v. R.M.J.T., 2014 MBCA 36, at paras. 61-63.

[130] I accept Cst. Dawe’s evidence about the grounds he formulated. I also accept his evidence that he would have seized the items under s.489. In these circumstances I conclude the seizure was lawful despite the problems with Cst. Lowe’s evidence. While I have misgivings about aspects of Cst. Dawe’s evidence concerning the extent to which he and Lowe spoke about their evidence, that does not lead me to doubt what he said about his grounds for the seizure.

[131] Cst. Dawe clearly articulated a basis for his subjective grounds which go well beyond the finding of the PDF of the mortise lock. Based on what Cst. Dawe knew about the investigation the evidential value of the laptop computers and the USB drives would be obvious. As I suggested during submissions, it was a “no brainer”. Anyone with knowledge of the main points of this investigation would instantly and intuitively understand the evidential value of the computers and USB drives and that they would likely afford evidence of the offences.

[132] On either of the two bases described above I find that the seizure of the two laptop computers and two USB drives from the trailer was valid pursuant to s. 489 of the Criminal Code.

Part II – The Searches of the Computers and USB Drives

[133] After the two laptop computers and the two USB drives were seized on October 2, 2013 the police applied for a search warrant to examine their contents. The warrant the police relied upon to do that was issued on October 18, 2013. The warrant was based on an ITO dated October 17, 2013 sworn by Cst. Joe Ciftci. As of that date Cst. Ciftci was the warrant writer for the investigative team. That ITO has been referred to in these proceedings as ITO 24.

[134] It is an agreed fact that prior to the issuance of the warrant, Cst. Lowe, who was the “technical liaison” officer, sent all four of the devices to TCU for analysis. He did that on October 9, 2013. Then on October 10 he attended in TCU and arranged to view the contents of the Lexar USB drive. Based on his evidence, he viewed only some of the contents of the USB drive before realizing that he may need an additional warrant to do so, at which point he says he stopped.

[135] Cst. Ciftci, who was tasked with the preparation of ITO 24, testified that he was unaware that Cst. Lowe had viewed any of the contents of the Lexar USB device without judicial authorization. Consequently, that activity was not disclosed to the justice of the peace who issued the subsequent warrant to search all four of the devices.

[136] The applicants raise six bases on which they submit s. 8 of the Charter was violated in relation to the events outlined above. These submissions relate to the issuance of the warrant, facial validity of the warrant, its execution and events subsequent to its execution. The alleged s. 8 violations were referred to in the applicants’ oral submissions under the following headings:

1. Cst. Lowe’s warrantless review of the contents of the Lexar USB stick;

2. Subversion of the pre-authorization process by keeping what Cst. Lowe had done from the justice of the peace;

3. Whether a warrant to examine the contents of the computers and USB sticks could have issued on the basis of the ITO as corrected and amplified on the review;

4. The facial validity of the warrant issued – whether as framed it permitted a technological examination of the devices;

5. Whether the warrant was executed within the time restrictions contained in the warrant; and

6. Issues related to the “return” made before a justice of the peace and the validity of subsequent detention orders.

[137] The applicants dealt with the issues in this order. I will deal with them in the same order. Some are more easily resolved than others. I will make reference to the evidence and to the agreed facts where such information fits best to aid in understanding how the issues developed. An additional Agreed Statement of Facts was filed for Part II of this application (Exhibit 6A). A “Timeline” for that Agreed Statement of Facts also contains important information (Exhibit 6B).

Cst. Lowe’s Warrantless Review of the Lexar USB Stick

[138] Based on the evidence, when Cst. Lowe submitted all four devices to TCU for analysis he filled out a separate form for each device as part of that submission process. The form is titled “Technological Crime Unit Service Request Form”. Under the title it says it is for computers, thumb drives, digital cameras and memory cards. The only form that was produced during the hearing of the application was the one Cst. Lowe completed for the Compaq CQ-10 laptop on which the internet queries were located.

[139] It is agreed, and Cst. Lowe testified, that on October 10, 2013 he attended in TCU and sought assistance in “previewing” the two USB devices. Cst. Romita of TCU assisted him by “write blocking” the Lexar USB and connecting it to a computer with a forensic mapping program. The second USB key seized from the trailer was found to be inoperable.

[140] Cst. Lowe testified that he looked at the contents of the Lexar USB key for 15 to 20 minutes. It is an agreed fact that there were hundreds of files on that USB key. Many were family photographs. Cst. Lowe testified that he viewed only the 15 files listed in his notebook. These are listed at para. 9 of the Agreed Statement of Facts (Exhibit 6). He maintained in his testimony that he did not open a file titled “lawyer.docx”.

[141] I pause to mention that in their written material the applicants claimed a violation of solicitor-client privilege based on the assumption Cst. Lowe viewed the lawyer.docx file. However, as no evidence was developed on the application that Cst. Lowe viewed the contents of that file the solicitor-client privilege issue was not pursued. No efforts were made by the applicants to establish a claim of solicitor-client privilege in the contents of that file.

[142] Cst. Lowe testified that when he went to TCU on October 10 he thought that the warrant that had been issued to search the trailer, in combination with s. 489 of the Criminal Code, gave him authority to submit the devices for analysis and to view the contents of the USB key. While this is clearly wrong in law, it is plausible that he held that view. It must be remembered that this occurred in October 2013. The decision of the Supreme Court of Canada in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 was not released until November 7, 2013.

[143] As he was viewing the contents of the device Cst. Lowe began to wonder about his legal authority to do so. He stopped viewing the contents. He has a note in his notebook which reads, “Thought that items to be searched covered seized tech items” and another note, “Further discussion will need warrant for tech items.” It is unclear whether this second note relates to a discussion with someone in TCU or to Cst. Lowe’s claimed discussion with Det. Arnold and Det. Sgt. Cowan. Based on my impressions overall I conclude it is more likely the former.

[144] Cst. Lowe had a poor memory about what occurred when he stopped viewing the contents of the USB stick. At one point he said he left the USB key with a TCU officer. Later he agreed he may simply have left the USB key in the computer. He could not recall who he spoke to in TCU. He was not able to provide information about discussions he had with the TCU officer after he realized his mistake. Again, his notes are lacking and his memory is poor. I observe that TCU went ahead and made extraction disks from some of the seized items. The evidence about that was not thoroughly developed.

[145] The respondent acknowledges that s. 8 of the Charter was violated when Cst. Lowe viewed some of the contents of the Lexar USB. That concession does not extend to an acknowledgement that the submission of the devices to TCU constituted a separate s. 8 violation. I will say more about the circumstances of that submission below. I have set out what occurred here because it is necessary background to understand the issue raised in the next section.

The Alleged Subversion of the Preauthorization Process

[146] The applicants submit that the preauthorization process was subverted because the affiant, Cst. Ciftci, either knew what had occurred and did not disclose it to the justice of the peace or was not aware of what occurred because there was a conspiracy by other police officers to keep Cst. Ciftci in the dark. While the applicants ask that this be considered together with the other sub-facial issues they have raised I do not understand the applicants to suggest the other sub-facial issues alone could trigger this basis for setting aside the warrant.

[147] There is conflicting evidence about what occurred. The respondent, as well as the applicants agree that it seems likely that one or more of the police officers who testified has lied to the court.

[148] Cst. Ciftci was the first witness to testify in relation to Part II of this application. That was pursuant to a limited leave to cross-examine previously granted. By the date of these events Cst. Ciftci was the only warrant writer on the investigative team.

[149] Mr. Hechter cross-examined Cst. Ciftci to demonstrate that he either attended the regular briefings or kept up to date by reading the briefing notes. Cst. Ciftci agreed that was necessary so he could perform his function. Consequently, he was aware that the electronic items seized from the trailer were going to be submitted to TCU for analysis. This appeared in the briefing notes shortly after the seizure. He agreed he would have been aware of that by October 4, 2013. As of that date he had not been tasked to obtain a warrant to have the items in question technologically examined.

[150] Mr. Hechter suggested to Cst. Ciftci that he should have been concerned when he saw that the items were being sent to TCU for analysis, when he was aware that a warrant had not yet been obtained. It is implicit in the applicants’ position that Cst. Ciftci should have taken steps to stop any analysis from proceeding, or later should at least have made inquiries and included what occurred in his ITO as part of his obligation to make full, frank and fair disclosure.

[151] Cst. Ciftci pointed out that the briefing note he was referred to said the items were “going to be sent to TCU for analysis”, not that they were going to be analyzed. He indicated he did not have the concern which counsel suggested.

[152] In this regard I note that Det. Arnold was also cross-examined about being aware that the devices had been sent to TCU for analysis prior to the issuance of a warrant. She explained that technical items were often sent to TCU for storage pending receipt of a warrant authorizing further analysis. She testified that in her experience the officers in TCU were very careful to insist on either seeing or having it confirmed to them that an appropriate warrant had been issued before commencing a technical examination of an electronic item.

[153] I also refer to the submission form Cst. Lowe completed for the Compaq CQ-10 computer, which is the only submission form in evidence. That form has two places on it where a warrant or authority to search are referred to. The first is just below the middle of the page under the heading, “Authority for Evidence Collection”. Several boxes appear to the right. The box for “search warrant” was ticked by Cst. Lowe. Other choices read as follows: “Incident to Arrest (search warrant required)”; “Consent – How Long?” (followed by a blank space to write an answer); “Found Property”; and “Owner Deceased”.

[154] At the bottom right of the single page form are the words, “Authority to search”. There are no boxes to tick but space is provided to write an answer. That space has been left blank in this case.

[155] There is no evidence Cst. Ciftci or Det. Arnold saw the form completed by Cst. Lowe in this case. However, the form, which is somewhat confusing and ambiguous, is at least consistent with the testimony of Cst. Ciftci and Det. Arnold that submitting something to TCU did not necessarily mean it would be analyzed. “Authority for Evidence Collection” and “Authority to Search” appear in different locations on the form. These are two different issues and they are particularly significant in the context of the seizure and subsequent technological search of computers and electronic storage devices where there is an important distinction between these two legal authorities.

[156] Clearly a TCU officer must ensure that each authority exists before proceeding with a technical analysis. I note that it is agreed that no technical examination of the CQ-10 computer took place until after a further warrant was obtained. While Cst. Romita assisted Cst. Lowe in viewing some of the contents of the Lexar USB, and an “extraction disk” was prepared I do not know what Cst. Lowe told Cst. Romita in order to have him do that.

[157] I accept the evidence of Cst. Ciftci and Det. Arnold that sending something to TCU for storage is not unusual and does not mean it will be analyzed before a warrant is obtained. I also have evidence from Det. Sgt. Cowan that TCU has the special knowledge and equipment, like protective bags that prevent remote communication with cell phones, to assist in the secure storage of electronic devices.

[158] Cst. Lowe was asked why he did not go and tell Cst. Ciftci about his error. Cst. Lowe said he did not do that because he told Det. Arnold and Det. Sgt. Cowan what he had done. He left it to them to deal with it. I will return to that evidence in a moment.

[159] In connection with that line of questioning Cst. Lowe was asked if he ever spoke to Cst. Ciftci about the warrant for the technical examination of the devices. He said that he did not.

[160] Cst. Ciftci contradicted Cst. Lowe on this point. He said that after Det. Arnold tasked him to prepare the warrant he went and spoke to Cst. Lowe. Cst. Ciftci said he started to prepare ITO 24 on October 15, 2013. He said Cst. Lowe told him that TCU required a warrant. He interpreted what Cst. Lowe said to him as an indication that TCU had not done and could not do any examination of the devices without a warrant.

[161] Cst. Ciftci said he was not made aware by Cst. Lowe or anyone else that Cst. Lowe had looked at the content of the Lexar USB key. The first he heard of that was in court during his cross-examination. Cst. Ciftci did not make a note of his conversation with Cst. Lowe but he did refer to it at p. 144 of his affidavit, ITO 24.

[162] I accept Cst. Ciftci’s evidence on this point. He referred to the conversation with Cst. Lowe in his affidavit. Cst. Lowe simply said “No” when he was asked, “And did Ciftci ever come to you and say, tell me what happened with these devices?” That was a very specific question. Cst. Lowe said he never told Cst. Ciftci what he had done. He was not asked whether he had any conversation with Ciftci about a warrant being required.

[163] I also observe that Cst. Lowe did not remember telling a briefing on October 15, 2013 that a warrant would be required until after his memory was refreshed in re-examination by using the briefing notes.

[164] The most significant conflict in the evidence relates to whether Cst. Lowe ever clearly advised Det. Arnold and Det. Sgt. Cowan about viewing the contents of the Lexar USB key.

[165] Cst. Lowe said that after it “clicked” that he would need a further warrant to view the content of the USB key he went to speak to Det. Arnold. He said he “believed” he left the USB key in TCU. He said he “believed” it was still in the computer. Then he said he did not remember. At first he said he told TCU to wait for a warrant. However, he had no notes about that. Then he said he could not be certain he told TCU to wait for a warrant. All of Cst. Lowe’s testimony about this was vague and qualified. It again appears to me that his memory is poor and his note taking was lacking. He was not diligent in his duties.

[166] Cst. Lowe said he then went and met with Det. Arnold and Det. Sgt. Cowan for 30 to 45 minutes. He testified he told them he made a mistake and opened the files on the USB key thinking his actions were covered under the previous warrant. When it was suggested to him that it would only take about 30 seconds to relay that to the other officers, Cst. Lowe described the conversation as “a lot more labour intensive than that”. He said they discussed whether the warrant and s. 489 covered what he had done. He said he could not remember if he went and got a copy of the warrant. He said all three of them concluded that a warrant would be required. He then left the meeting. In further cross-examination he said there was no conversation about the preparation of an extraction disk.

[167] Cst. Lowe’s notebook does not contain any note that clearly relates to this meeting. There is no reference in any of his notes to having such a significant and important discussion with Det. Arnold and Det. Sgt. Cowan. As Cst. Lowe did make a brief note about his error it is very concerning that he does not have a clear and detailed note about the very significant conversation he claims to have had with his superiors on such an obviously important point.

[168] Det. Arnold testified that Cst. Lowe never brought to her attention that there was a warrantless examination of the USB key on October 10, 2013. Det. Arnold said that would have been a very important thing to have discussions about and she would have made notes about it if it happened. Det. Arnold was not asked about this until the end of her cross-examination.

[169] In the earlier parts of Det. Arnold’s cross-examination counsel was suggesting to her that she knew that the devices had been sent to TCU for analysis. This is when Det. Arnold explained that sending items to TCU to await analysis did not mean that an analysis would occur prior to the issuance of a warrant.

[170] Counsel also referred Det. Arnold to an email dated October 15, 2013 which she received from Kevin Shaidle of TCU indicating that “extraction disks” were ready for pick up at TCU for three devices. The devices were identified only by property numbers. Det. Arnold said she was not familiar with the property numbers of the various cell phones and other electronic devices that were being constantly sent to TCU. It turned out that the email referred to extraction disks from three of the four devices seized from the trailer. Det. Arnold said she simply forwarded the email to Cst. Lowe to deal with as he was the liaison officer with TCU.

[171] I accept Det. Arnold’s evidence that she did not realize that the email referred to extraction disks in relation to three of the devices in question here. The devices in the email are referred to only by the letters “PY” followed by 8 digits. I note that Cst. Ciftci was asked about such numbers and he said that he did not relate particular series of numbers to items of property from a particular location or to items of a particular type.

[172] I also accept Det. Arnold’s evidence that if she realized that any form of extraction of information was taking place without a warrant she would have stopped it immediately.

[173] Det. Sgt. Randy Cowan was the “Major Case Manager” for this investigation. He has since retired. He testified that he was aware of the warrant that had been executed at 8568 Mississauga Road and of the seizure of the two computers and USB keys. He knew that they eventually went to TCU for analysis. He could not recall being aware of that as of October 10, 2013 although he tried to attend as many briefings as he could.

[174] Det. Sgt. Cowan said he could not remember any conversation with Cst. Lowe about Lowe conducting a warrantless analysis of a device. He said if he had a 30 to 45 minute conversation with Cst. Lowe about a matter of such significance he would have recorded it in his notes and he would have expected Cst. Lowe to do so as well. He said no such conversation took place.

[175] Det. Sgt. Cowan did have a note that at 11:00 a.m. on October 10, 2013 Det. Arnold spoke to him about receiving a call from Cst. Romita of TCU to the effect that TCU had a backlog and that the investigators in this case would have to select items to be analyzed on a priority basis. He said that Det. Arnold received the call and brought it to his attention. He said that technical items would often be sent to TCU prior to the issuance of a warrant due to the special storage requirements for electronic devices.

[176] In further cross-examination Det. Sgt. Cowan said that if Cst. Lowe said something to him off the cuff and did not make a big deal about it he may not have noted it. However, if something had occurred of the significance and magnitude being suggested in cross-examination he would definitely have noted it and would remember it. He remained firmly of the view that what was being described to him did not occur.

[177] As counsel for both the applicants and the respondent submit, it seems likely that someone is lying to the court. The onus rests on the applicants to demonstrate that the preauthorization process was subverted and that s. 8 of the Charter was thereby violated.

[178] The jurisprudence in Ontario recognizes that even where a search warrant could otherwise have issued a warrant may be set aside where the judicial officer issuing the warrant has been so seriously misled that the court finds that the preauthorization process was in fact subverted. The situation is akin to an abuse of process. Watt J.A. recently provided a helpful summary of the law in this area in R. v. Paryniuk, 2017 ONCA 87. At para. 62 he wrote:

In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicial officer: R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal refused, [2010] S.C.C.A. No. 371, at para. 40. In at least one brief endorsement, this court has described the conduct necessary to engage this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v. Vivar, 2009 ONCA 433, at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

At paras. 69-70 Watt J.A. went on to explain why the standard to be met to set aside a warrant on this basis is high.

[179] If I were satisfied that what occurred in this case was a conspiracy by Det. Arnold and Det. Sgt. Cowan to cover up Cst. Lowe’s mistake and to keep the affiant of the search warrant, Ct. Ciftci, in the dark so that he could not provide the justice of the peace with evidence about the earlier Charter violation by Cst. Lowe, I might well conclude that the required threshold had been met. However, on the basis of the conflicting evidence before me I am not able to find that that is what happened.

[180] On the one hand I have the evidence of two senior and very experienced officers who were supervising a major homicide investigation. Both have sworn that no meeting such as that described by Cst. Lowe occurred. I also point out that at that point they had no reason to think that anything as significant as the internet search queries that were ultimately found on the Compaq CQ-10 would be found.

[181] If they were aware of Cst. Lowe’s mistake there were a number of steps they could have taken to preserve access to any evidence that might exist on the computers and USB drives. Foremost amongst them would be to ensure that what Cst. Lowe did was fully disclosed to the affiant and to the justice of the peace. Nothing of value was found on the Lexar USB drive and disclosure of Cst. Lowe’s error would not likely have led to refusal of the warrant for the devices. This is not akin to a situation where the police have conducted an unauthorized perimeter search and then relied on the results to obtain a warrant. Common sense suggests that such senior officers would have recognized that. This makes their immediately engaging in a full blown conspiracy to cover up Cst. Lowe’s error quite unlikely.

[182] On the other hand, I have the evidence of Cst. Lowe. Cst. Lowe is a junior officer and I have already said that, based on a review of all of his evidence, I find that he did not carefully and industriously apply himself to his work. His memory seems poor. He does not make careful notes. He often makes no notes. He has no clear note that he had an extensive discussion with Det. Arnold and Det. Sgt. Cowan as he said he did.

[183] I do ask myself why an officer in his junior position would make such serious allegations against senior officers if they were not true. As the saying goes, that could be a “career limiting move”. This is a consideration which gives me pause. But against the background of my conclusion that Cst. Lowe did not apply himself conscientiously to his work, did not prepare properly for his testimony at the preliminary inquiry, made the mistake he did by looking at the USB key, and did not recall taking clear steps to advise TCU that a warrant was required, I find it difficult to rely on his evidence.

[184] I have also taken into account that Cst. Lowe did make a brief note about his error. Perhaps he thought it was so brief that it might go unnoticed when his notes were disclosed to defence counsel. Nonetheless, it is difficult to come to the conclusion that he was hiding his error when he made some note of it.

[185] One of the things that gives me concern in relying on Cst. Lowe’s evidence is his lack of detail in describing the meeting he claims he had with Det. Arnold and Det. Sgt. Cowan. One would think that if he had a lengthy conversation with his superiors about this he would be able to provide a more fulsome account of it even without notes. I also observe that he did not testify that Det. Arnold or Det. Sgt. Cowan told him not to make notes about their discussion. That is something you might expect if the two senior officers immediately decided to try to cover things up.

[186] Taking all of the evidence into consideration I find I am not able to decide with any degree of certainty what actually happened. What I am certain of is that on this record I am not satisfied on a balance of probabilities that things occurred as Cst. Lowe said they did. I am not persuaded that Det. Arnold and/or Det. Sgt. Cowan decided to suppress what had occurred to keep Cst. Ciftci in the dark. I note that Cst. Lowe did not say he was told not to speak to Cst. Ciftci. Yet he did not tell Cst. Ciftci of his error.

[187] At the end of the day I accept Cst. Ciftci’s testimony that he was unaware of the improper viewing of the USB key. Cst. Lowe agrees he never told him. I am not satisfied that Cst. Lowe made Det. Arnold or Det. Sgt. Cowan fully aware of what occurred. I am not persuaded that Det. Arnold and Det. Sgt. Cowan engaged in a cover-up. While the error made by Cst. Lowe certainly should have been disclosed to Cst. Ciftci and to the justice of the peace, in circumstances where nothing of significance was found and no violation of solicitor-client privilege occurred as a result of the error, I am also not persuaded that failure to disclose it subverted the preauthorization process itself.

[188] As I am not persuaded that there is a factual basis which could support a finding of subversion of the preauthorization process in this case this aspect of the application fails: Paryniuk, at para. 72.

Could the Warrant Have Issued on the Basis of the ITO as Modified on the Review?

[189] I have reached the conclusion that a warrant to conduct a technological examination of the computers and USB keys could have issued on the basis of ITO 24 as modified on the review. In reaching this conclusion I have applied the legal principles reviewed in my earlier rulings. See Ruling No. 4, R. v. Merritt, 2017 ONSC 80, at paras. 204-07. I also previously summarized my understanding of many of the applicable legal principles in R. v. Ahmad, [2009] O.J. No. 6162, at paras. 9-16. I will not repeat the applicable legal principles here.

[190] The applicants’ sub-facial attack on the ITO alleges that there were errors and material omissions in the ITO in two separate areas which had the potential to mislead the justice of the peace.

[191] The first area relates to reported references in the ITO to animal hair, believed to be dog hair, found in Caleb Harrison’s bedroom where his body was located. There is reference in the ITO to forensic officers advising investigators that it was likely the killer would have picked up transfers of that hair during the killing. The ITO also indicates that a pair of new men’s running shoes, which appeared to have hairs and fibres on them, were located in the applicants’ garbage six days after Caleb Harrison was found dead. Mr. Fattore advised the police he had never been inside the Harrison residence.

[192] Additional information in the ITO establishes that Christopher Fattore bought the shoes at Walmart the evening before Caleb Harrison was murdered. The ITO also indicates that the applicants failed to advise the police about Mr. Fattore’s attendance at Walmart to buy the shoes, although they otherwise advised the police of their activities that evening in great detail.

[193] The accuracy of the foregoing information as set out in the ITO is not challenged. However, the applicants correctly point out that the ITO indicates that the shoes and the hairs and fibres from Caleb Harrison’s bedroom had been sent to the Centre of Forensic Services (CFS) for analysis and comparison when that was not the case. The police intended to send the items for analysis but that had not yet been done when the ITO was sworn. Based on my understanding of the Agreed Statement of Facts, none of these items were sent to the CFS until January 16, 2014 and nothing more than a visual examination was requested at that time.

[194] The applicants also emphasize that the justice of the peace was not advised in the ITO that the applicants had various pets which might provide an alternative explanation for the hair found on the discarded sneakers. The Agreed Statement of Facts for Part II of this application establishes that the applicants’ landlord told the police the applicants had a black or gray cat, that the police knew the applicants had posted a notice about their lost dog, that a witness had told the police that Melissa Merritt was always getting new pets and that another witness said the children had dogs and cats at the applicants’ residence.

[195] The applicants submit that the errors and omissions I have just described are significant because they affect the strength of the inference the affiant was inviting the justice of the peace to draw, that the shoes were “murder sneakers”, on the basis that the police believed the hairs on the shoes may correspond to the animal hairs found in Caleb Harrison’s bedroom.

[196] The second area of concern raised by the applicants relates to the indication in the ITO that the doors to the residence were locked at the time of the deaths of both Bridget Harrison and Caleb Harrison, and that there was no sign of forced entry on either occasion. This suggested an “insider” was likely involved.

[197] Against this background the applicants point to para. 60 of the Agreed Statement of Facts for Part II of this application. That paragraph details information the police received from Stephanie Dunn to the effect that the front door latch may not always have engaged properly. She recounted a story to the police, which was not based on her firsthand experience and was therefore at least double hearsay, to the effect that a person might think the heavy front door to the Harrison residence was locked when it was not.

[198] The applicants submit that the failure to include Stephanie Dunn’s information in ITO 24 was a serious omission. Again, they submit that the omission of this information affected the strength of the inferences that could be drawn from the fact that there was no sign of forced entry.

[199] I would point out that the Agreed Statement of Facts, at paras. 61-62, establishes that while Det. Rice and Det. Arnold were aware of the information received from Stephanie Dunn, and had an email exchange about whether it should be “briefed in” and by whom, no reference to this issue was ever entered into the briefing notes. Consequently, Cst. Ciftci was likely unaware of Stephanie Dunn’s information when he swore the ITO.

[200] While the applicants are correct in submitting that there were errors in the ITO in indicating that the hairs and fibres “are being examined” (p. 9) and that items “have been sent to the Centre of Forensic Sciences (p. 57), and in similar comments elsewhere in the ITO, I am not persuaded that the justice of the peace could have been misled in any significant way. As the respondent submits, in the same paragraph where the error was made the affiant usually indicated that no analysis or comparison had yet taken place and that no match had been made. At p. 9 of the ITO the affiant said, “The results of those examinations are not available as of yet.” At p. 57, after referring to the hairs and fibres having been sent to the CFS the affiant said, “No results have yet been received.” It is perfectly clear from the ITO that no comparison had yet occurred and that no match had been made. It is not suggested that the police did not intend to send the hairs, fibres and shoes for expert examination.

[201] The respondent also submits that even if the offending material is excised considerable information on the subject of the potential importance of hair and fibre comparison would still remain in the ITO. At p. 57 there would still be reference to information from FIS officers that, given the amount of dog hair in Caleb Harrison’s bedroom, the perpetrator would likely have taken trace evidence with them. The FIS officers suggested that if suspects were identified seizing their vehicles for hair and fibre analysis would be ideal. At p. 57 there would still be reference to new running shoes being found in the garbage with white hairs on them. At p. 108 there would also still be reference to the shoes found in the garbage having hair on them. A similar reference to the shoes, together with reference to black latex gloves that were also found in the garbage, would remain at pp. 142-43.

[202] At pp. 142-43 evidence would remain about Mr. Fattore purchasing the shoes at Walmart the evening before Caleb Harrison was found dead and throwing them away a week later. At p. 144 evidence would remain to the effect that the applicants omitted the purchase of the shoes from their otherwise detailed accounts of their whereabouts and to the affiant’s belief that the applicants left Mr. Fattore’s purchase of the shoes at Walmart out of their statements on purpose.

[203] When all of this is considered I am not persuaded that there was any intent to mislead the justice of the peace. The affiant would not have been so careful to point out that no analysis, comparison or match had been made between the suspected animal hair found in Caleb Harrison’s bedroom and those found on the discarded shoes if he intended to mislead. Moreover, given these references, the justice of the peace could not have been misled on a material matter. Finally, all the remaining references would be sufficient to support the inferences necessary for the information about the hairs, the fibres and the shoes to contribute towards the proper issuance of the warrant.

[204] I agree with the applicants’ submission that the additional information about the alternative explanations for animal hair being on the discarded shoes could have affected the strength of the inferences available to the justice of the peace. It would have been better if that information had been included in the ITO. However, I am not persuaded that its omission reflects any deliberate attempt by Cst. Ciftci to mislead the justice of the peace. Adding the omitted information into consideration on the review does not undermine the availability of a reasonable inference that there was the potential for a match between the various hairs and fibres but that the comparison had not yet been made, and whether there was a match remained unknown.

[205] Given the clarity with respect to which this last point is made repeatedly in the ITO, I am unable to see the omitted information as of much significance. The determination of whether the warrant could have issued depends on an assessment of the ITO as a whole. The fact that there may be competing inferences does not prevent consideration of an inference which could assist in supporting the issuance of a warrant.

[206] With respect to the information that the door might not always latch properly, I have already mentioned that as it was not “briefed in”, I am unable to conclude the affiant was aware of it. I have not been referred to any other evidence to show that he was.

[207] I also agree with the respondent’s submission that even if this information was added to the ITO it would not eliminate the availability of a reasonable inference that whoever killed Caleb Harrison was likely an “insider”. As the respondent correctly points out, that inference is not based only on the fact that there was no forced entry.

[208] Other relevant circumstances established in the ITO include that the crime scene appeared staged. Caleb Harrison was found tucked into his bed, in his own home with the sleeping mask he always wore covering his eyes. This suggests the killer knew how Caleb Harrison usually slept. At first it did not appear that a struggle had taken place, but upon closer examination of the scene there were signs of a struggle. The killing happened when the children were away. They were due back the next day. There is also evidence in the ITO, at p. 82, that Caleb Harrison kept the door locked every night. All of these things in combination continue to support the availability of a reasonable inference that the killer or killers were insiders or had access to information about Caleb Harrison’s habits and schedule. That is so even when Stephanie Dunn’s information about latching issues with the front door is added into consideration.

[209] After editing out information in the ITO on the basis of my earlier findings of violations of s. 8 of the Charter and correcting the record as indicated above, I find that the warrant sought by the police could have issued. There were reasonable grounds to conclude that Caleb Harrison had been murdered, that the applicants had motive and opportunity and that they had knowingly omitted reference to the purchase of the discarded shoes from their statements. There was a long history of communication between Melissa Merritt, in particular, and members of the Harrison family in regard to the bitter and longstanding custody dispute between the applicants and the three deceased members of the Harrison family. In these circumstances, all of which are capable of being established on the basis of the ITO as modified on the review, there were reasonable grounds to believe that an examination of the contents of the computers and USB keys would yield evidence relevant to the murder investigation.

[210] Cst. Ciftci detailed these at p. 143 of ITO 24. He made reference to emails, instant messaging and internet research, amongst other things, as likely to be found on the computers and storage devices. He explained how he believed those would afford evidence and assist the police in their investigation. Given the historical aspect of this case, three alleged murders over the course of five years, and the background of an ongoing litigation and of allegations of various sorts back and forth between the applicants and the Harrison family, what Cst. Ciftci suggested in this regard was inherently reasonable.

[211] I conclude that the warrant sought could have issued on the basis of the ITO as modified on the review.

[212] It is convenient to add here that in view of my conclusion that there was no intent to mislead the justice of the peace, the deficiencies I have noted in the ITO could not realistically add anything to the applicants’ submission, dealt with earlier in my reasons, that there was a subversion of the preauthorization process.

Did the Warrant that was Issued Authorize a Technological Examination of the Laptop Computers and USB Keys?

[213] I have come to the conclusion that the answer to this question is no.

[214] It is perfectly clear form ITO 24 that the police were seeking a warrant for a technological examination of the electronic devices. There is no doubt the issuing justice of the peace would have understood that. In stating his grounds to believe that the devices would afford evidence of the offence, Cst. Ciftci swore at p. 143 of the ITO that the police wanted to search the devices for emails, deleted emails, chat conversations, internet logs, pictures, documents, spreadsheets, telephone contact lists and other similar information which was related to the murder investigation.

[215] Unfortunately, the warrant that was issued did not authorize the police to do any of this. The warrant simply specified that the “items to be searched for” were the two laptop computers and two USB sticks, which were described with particularity in Appendix A to the warrant. I understand that it is agreed for the purpose of this application that Appendix A was attached to and formed part of the warrant.

[216] The face of the warrant provides only that the police may enter the Emil Kolb Building, Technological Crime Unit of Peel Regional Police at 180 Derry Road East in Mississauga between 12:00 p.m. and 8:59 p.m. “to search for and to seize” those items and bring them before a justice of the peace to be dealt with according to law. The Emil Kolb Building is a police building which houses the Homicide Bureau and TCU. As previously indicated, the electronic devices had been sent to TCU after they were seized.

[217] All the warrant authorized was the police seizing the physical items they already had from themselves. The warrant did not authorize the invasion of the applicants’ privacy which was contemplated in the ITO. There is no language of any sort in the actual warrant capable of authorizing a technical examination of the devices. The warrant itself made no reference to the police being authorized to search for any of the things Cst. Ciftci specified in the ITO.

[218] Counsel for the applicants and respondents rely on the same arguments they advanced in connection with the warrant the police had previously obtained and relied upon to conduct a technological examination of the cell phone seized from Melissa Merritt on August 26, 2013. Counsel for the respondent did not seek to rely on any additional argument and stated that the respondent anticipates that my ruling will be the same. Indeed it is, and for the same reasons. My reasons dealing fully with the same issue in respect of the warrant in relation to the cell phone can be found in Ruling No. 4, R. v. Merritt, 2017 ONSC 80, at paras. 208-242. I adopt and apply that reasoning here.

[219] As I ruled there, there is clear authority that a warrant which is invalid cannot generally be saved by the ITO when the ITO does not suffer from the same defect which the warrant does: R. v. Times Square Book Store (1995), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.), at pp. 507 and 513; R. v. Ting, 2016 ONCA 57, at para. 59.

[220] As the warrant was invalid the search of the devices which resulted in finding the internet search strings on the Compaq CQ-10 was warrantless. The onus shifts to the Crown to show the search was reasonable. As the respondent does not raise any other basis which could justify the search I conclude that s. 8 of the Charter was violated when the police undertook a technological examination of the electronic devices seized from the trailer.

[221] By agreement of counsel all s. 24(2) issues will be dealt with together later in these proceedings.

The Execution of the Search Warrant

[222] At para. 8 of the applicants’ factum they submit that if the warrant was “rightly issued police exceeded the scope of the authorization in performing their search of the computers both in time and substance.” This submission, and oral submissions that followed, were of course made without knowing with certainty that I would reach the same conclusion I did with the cell phone warrant, that the warrant issued pursuant to ITO 24 did not authorize the technological search that was conducted. As I have concluded that the search warrant that was issued did not authorize any technological examination of the devices, it is somewhat artificial to deal with submissions that the search was not executed within the terms of the warrant from either a timing or substance perspective. With that in mind I will deal with the applicants’ arguments.

[223] With respect to timing, at p. 145 of the ITO Cst. Ciftci advised the justice of the peace that TCU had requested 30 days “to examine the two laptops and the two 8 gigabyte memory sticks”. Given that it was clear from the ITO that the police were seeking a warrant to conduct a technological examination of the computers and USB keys the 30 day request was reasonable. As pointed out by Fuerst J. in Little, at para. 161, the review of the contents of a computer can take days, weeks and even months to complete. Whether a technological examination of a computer must be completed within time constraints set out in a warrant will depend upon the specific terms of the warrant: Little, at para. 155; R. v. Nurse, 2014 ONSC 1779, at paras. 41-53; R. v. Barwell, [2013] O.J. No. 3743, at paras. 17-18.

[224] The justice of the peace who issued the warrant did not grant the 30 day request. As appears on the face of the warrant, it was to be executed on the day of issuance between 12:00 pm. and 8:59 p.m.

[225] The computers and USB keys were not taken from storage for examination until October 21, 2013. Cst. Romita removed the Compaq CQ-10 from the property room at 7:58 a.m. on October 21. Cst. Lowe then previewed that device. Cst. Romita then imaged it making an exact copy of it. That was completed on October 21, 2013. That day Cst. Lowe also picked up the extraction disks, including the one for the Lexar USB. On October 22, 2013 Cst. Romita ran a “signature analysis” on the Compaq CQ-10 to determine if any filename extensions had been changed to hide things on the computer. On October 30, 2013 Cst. Lowe commenced an analysis of the contents of the Compaq CQ-10 by reviewing the imaged copy. These facts are all set out in the respondent’s factum and are uncontested.

[226] It seems to me that both the short time parameter specified in the warrant and the manner in which the police conducted their examination of the items were likely affected by the way the warrant itself was drafted. As I have already explained, the warrant provided only for the physical seizure of the devices form the police building where they were stored. From the perspective of the justice of the peace, 30 days would not be reasonably required to do that.

[227] Perhaps the perspective of the police was that because the items were already in their possession seizure pursuant to the terms of the warrant was effectively accomplished when the search warrant was brought into the building. I do not have any evidence about why the police delayed.

[228] My point is that the failure of the warrant to reflect what was contemplated in the ITO may have led to the time restriction that was placed in the warrant and may have confused the police who executed it. This demonstrates why the warrant must be drafted with specificity and be treated as a stand-alone document.

[229] The respondent agrees that the examination of the Compaq CQ-10 computer was not conducted until October 21, 2013 which was several days after the time specified in the warrant had expired. However, the respondent points out that on October 17, 2013 Cst. Ciftci made a Report to a Justice pursuant to s. 489.1 of the Criminal Code concerning all items seized during the execution of the search warrant at 8568 Mississauga Road. That report is Exhibit 7. In it Cst. Ciftci listed all of the items that had been seized that were not covered by the trailer warrant. In an attachment to that report Cst. Ciftci set out reasonable grounds for believing why the electronic devices would afford evidence. On the basis of that application, pursuant to s. 490 of the Criminal Code the justice of the peace ordered the continued detention of the items until December 30, 2013. Consequently, the respondent points out that while the police delayed the technical examination of the electronic devices they did so in circumstances where they had an order permitting their detention of the items until December 30, 2013. I anticipate hearing more about this when we get to s. 24(2) of the Charter.

[230] As to the applicants’ reference to “substance”, in her submissions Ms. Myers submitted that search parameters or protocols should have been included when drafting a warrant to search a computer or similar device. She points out that the warrant does not authorize any mapping, file viewing or the preparation of extraction disks. The submission is that no one tried to minimize the impact of the review of the devices on the applicants’ subsisting privacy interests in the computers and USB keys. It is suggested this is also a s. 8 violation.

[231] In response, Mr. Taylor pointed out that in the ITO Cst. Ciftci set out with specificity what the police were interested in and what the police had grounds to believe would be found on the devices and afford evidence of the offences. In my view, that description is sufficient to cover internet queries. Mr. Taylor acknowledged that the warrant may be viewed as inconsistent with the ITO, but submitted that if the warrant had been drafted in a manner consistent with the ITO, as I have found it should have been, it would have contained suitable parameters. He stressed that the respondent had proceeded on the understanding that the applicants had agreed that they were not challenging the validity of ITO 24 on facial grounds.

[232] Ms. Myers confirmed there was no facial attack on the ITO. She said her point was that there were no limits in the warrant. She agreed that specifying what was to be searched for in the ITO reflected limitations that did not make their way into the warrant.

[233] It seems to me that all of the foregoing is best dealt with in the context of s. 24(2). It is artificial and redundant to suggest that a series of s. 8 Charter violations should be found based on such considerations when I have already found that the warrant issued did not authorize the technological examination that was conducted on the electronic items.

Validity of Returns/Reports to a Justice and Subsequent Detention Orders

[234] When the police seize anything pursuant to a Criminal Code search warrant or pursuant to s. 489 of the Criminal Code they must comply with the provisions of s. 489.1 of the Code. That section provides that seized items should be returned to the person from whom they were seized where appropriate. However, if the police believe a seized item is required for an investigation or as evidence they must either bring the seized items or a report about their seizure before a justice of the peace who may then order the continued detention of the seized items for up to three months pursuant to s. 490 of the Criminal Code. Pursuant to s. 490 further extensions may be ordered in increments of up to three months but the total cumulative period cannot exceed one year.

[235] Aside from the first order of detention, which may be made ex parte, all subsequent applications for extension are required to be made on notice to the affected parties. Only a superior court judge can extend detention beyond the one year point. Any such application to a superior court judge must also be made on notice to the affected parties.

[236] I have already indicated that on October 17, 2013 Cst. Ciftci made a report to a justice in relation to all items seized at 8568 Mississauga Road on October 2, 2013. A detention order was made pursuant to s. 490 of the Criminal Code authorizing detention until December 10, 2013.

[237] The applicants take no issue with the initial report to a justice or with the initial detention order. However, they do take issue with the extension of the initial detention order, which they submit was made without jurisdiction. They also point to the fact that no report to a justice was ever made in connection with the technological examination of the computers and USB keys pursuant to the warrant issued on October 18, 2013 which I have found to be invalid.

[238] Cst. Ciftci applied for an extension of the original detention order. However, he made the application without notice to the applicants. The application was to a justice of the peace. It was made on December 10, 2013 and sough waiver of the notice requirement and a one year extension. The police sought waiver of the notice provision as the investigation was ongoing and included the interception of private communications pursuant to an authorization issued under Part VI of the Criminal Code. The application and resulting order are Exhibit 8 on this application. The order grants an extension for a period of one year to December 10, 2014.

[239] There are a number of problems with what occurred. The respondent concedes that the justice of the peace had no jurisdiction to waive the notice requirement and no jurisdiction to grant a one year extension. I note that the form the justice of the peace used to make the order had some reference to the three month limit printed right on it.

[240] The provisions of ss. 489.1 and 490 of the Criminal Code were recently reviewed in R. v. Garcia-Machado, 2015 ONCA 569, 327 C.C.C. (3d) 215. The court held that failure to comply with these sections constitutes a violation of s. 8 of the Charter because a seizure is by definition something which is continuing and the purpose of ss. 489.1 and 490 is to ensure that the ongoing detention of seized property is supervised by the court. If the seized property is not properly brought under court supervision its continued detention is not authorized by law. See Garcia-Machado at paras. 44 to 49, 55.

[241] As the one year extension of the initial detention order was made without the required notice and was not an order that a justice of the peace was empowered to make in any event, the detained property was not being properly supervised by the court subsequent to the making of the extension order on December 10, 2013. The detained items were being dealt with unlawfully. Based on the reasoning in Garcia-Machado I conclude it was being dealt with in violation of s. 8 of the Charter.

[242] I do note the following. As the respondent points out, the Compaq CQ-10 computer was imaged during the initial three month detention period that was properly authorized. Consequently, any s. 8 violation associated with the extension of the detention order without jurisdiction considerably post-dated the finding of the evidence on the Compaq CQ-10 computer which the applicants seek to exclude from evidence pursuant to s. 24(2) of the Charter. I also observe that the applicants were arrested and charged on January 28, 2014. From that point onwards the police were entitled to continued detention of the evidence until the charges were dealt with. Consequently, the lapse in proper supervision of the seized items was 49 days. Presumably I will hear more about this later when s. 24(2) of the Charter is considered.

[243] There is also the failure of the police to make any application pursuant to s. 489.1 in relation to the execution of the search warrant issued on October 18, 2013 which the police relied upon to conduct the technological examination of the laptop computers and USB keys to be considered. Based on Garcia-Machado this appears to me to constitute a clear violation of s. 8 of the Charter.

[244] The respondent, however, argues that no additional report to a justice was required because the property itself was already being supervised by the court pursuant to the earlier detention order. I would point out, however, that under the original s. 490 order the court was supervising the detention of the physical items. As no return was made in relation to the execution of the October 18 warrant the court was not supervising the detention of the data gleaned from the computers and USB keys.

[245] As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.

Conclusion on Part II of the Application

[246] Cst. Lowe violated s. 8 of the Charter by examining some of the contents of the Lexar USB drive without a warrant.

[247] While a warrant properly authorizing a technological examination of the electronic devices seized from the trailer could have issued on the basis of ITO 24 as modified on the review, the warrant issued on October 18, 2013 did not authorize such an examination.

[248] The evidence does not establish that the warrant which was issued or any warrant that could have issued should be set aside on the basis that there was a subversion of the preauthorization process.

[249] Section 8 of the Charter was violated by the extension of the original detention order made pursuant to s. 490 of the Criminal Code because the order for extension was made without notice to the applicants and was for a period longer than permitted by s. 490 of the Criminal Code.

[250] Section 8 of the Charter was also violated by the failure of the police to make a separate report to a justice pursuant to s. 489.1 of the Criminal Code in relation to the execution of the warrant issued on October 18, 2013 pursuant to ITO 24.

F. Dawson J.

Released: March 6, 2017