Court File and Parties

File No.: CR-13-207

Superior Court of Justice

Her Majesty the Queen

v.

Adam Kramshoj

Proceedings

Before the Honourable Justice Healey

on Monday May 2, 2017 at Barrie, Ontario

Appearances:

K. Staats Counsel for the Provincial Crown M. Czuma Counsel for Adam Kramshoj

Transcript Information

Superior Court of Justice

Table of Contents

Witnesses

IN-CH CR-EX RE-EX

No Witness Examinations

Transcript Ordered....................... May 2, 2017 Transcript Completed..................... May 8, 2017 Ordering Party Notified.................. May 8, 2017

Ruling

Tuesday, May 2, 2017

Healy, J. (Orally):

Overview

The Applicant, Adam Kramshoj, is charged with one count of making available child pornography and two counts of possession of child pornography, contrary to subsections 163.1(3) and (4) of the Criminal Code, R.S.C., 1985, c-C-46.

By agreement of counsel, this matter proceeded as a blended s. 8 Charter motion and trial, following a Garafoli/Charter motion to quash the warrant. Following that first motion, I ruled that the Information to Obtain (ITO), after excision, supported the conclusion that there were sustainable, reasonable grounds for the ITO's affiant to believe that a search of the identified premises would likely produce the evidence set out in Appendix A of the ITO, and that such evidence would be probative of the commission of the offences. However, I also ruled that there had been a breach of s. 8 of the Charter as a result of the warrant being invalid on its face, due to a "Branton error". In short, this meant that the warrant as drafted permitted the police to search for evidence of suspected or intended commission of the offences under subsections 163.1(3) and (4) of the Code, in addition to the actual commission of those offences. In contrast, the ITO limited itself to the officer's belief that an offence had been committed, and contained no basis for a search focused on the suspected or intended commission of such offences.

At the conclusion of that ruling no decision was made with respect to the exclusion of evidence, as defence counsel intended to advance several additional s. 8 violations following the trial. The blended proceeding continued. Full argument was heard with respect to those alleged violations and the application of s. 24(2) of the Charter at the conclusion of the evidence, as well as submissions in respect to the evidence of each charge.

The first part of this ruling deals with my decision on the Charter issues raised by this case, followed by the verdict.

Charter Challenge

The Lead-up to the Warrant

The investigation into the charges was led by Det. Lockhart, who has been a member of the Child Sexual Exploitation Section of the Ontario Provincial Police (OPP) for 17 years. On December 14, 2011, at approximately 11:26 p.m., Det. Lockhart was using a software program used by law enforcement, called E-Phex, to track and investigate peer-to-peer (P2P) trading and distribution of child pornography. This program works together with the Internet Crimes against Children database by allowing investigators like Det. Lockhart to establish a connection with a computer at a specific Internet Protocol (IP) address to capture a listing of the files contained therein, browse that listing, compare the hash values of the files in the shared folder with the database of suspected child pornography files and download each suspected file in order to examine its content.

The hash value is a unique alphanumeric combination that is assigned to data for identification purposes. Every image, photograph or movie found on a computer will be automatically run through a hashing process that generates a unique hash value for that file. If the same file is "hashed" more than once, the hash value will remain consistent. However, if the user alters even one pixel of an image, photograph or movie, that file will be assigned a new hash value. Downloading such an image does not change the hash value.

At the date and time noted above, Det. Lockhart was browsing a P2P network, the Gnutella network, known to police as being a network used to trade and share digital files containing child pornography. The Gnutella network can be accessed by computers running several different client programs, some of which include LimeWire and its successor program, FrostWire. When installed, LimeWire and FrostWire provide an installation number that is unique to each user of the computer, referred to as the globally unique identification (GUID) number. Further, the Gnutella network hashing method operates on a SHA-1 system, so that each file in a user's shared directory is assigned a SHA-1 hash value. When files are obtained by the police from the Gnutella network, a candidate list including IP addresses can be used to identify the computers being used. A review of the SHA-1 hash values allows an investigator to identify the files that are suspected child pornography. The process allows investigators to identify computers originating from an IP address containing Gnutella or compatible software and possessing specific and known files of child pornography.

On the date of his search, Det. Lockhart was able to establish a direct connection between his computer and a computer that was connected to the Gnutella Network, having first been alerted that a certain IP address was making files available that contained SHA-1 hash values of interest. He determined the specific IP address for the computer. He determined that between the start of his investigation at 11:26 p.m. on December 14, until three minutes past midnight, the LimeWire file sharing software was being used by the computer at that IP address to make an increasing number of files available through its shared folder. During that direct connection and within that time period, Det. Lockhart downloaded four files from that shared folder that were computer graphic movies, the contents of which depicted child pornography.

With the assistance of the E-Phex software, Det. Lockhart was able to obtain a GUID number from the computer containing that IP address. The computer with the same IP address had been seen since December 3, 2011 as a candidate for downloading suspected evidence of child pornography. Further, the Internet Crimes Against Children database query of the GUID number revealed that it had been observed as a download candidate of child pornography since February 21, 2011.

The client report generated by E-Phex indicated that the Internet Service Provider (ISP) that had been assigned the IP address was Rogers Cable Communications Inc. (Rogers). On December 16, 2011 Det. Lockhart sent a request to Rogers pursuant to the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA) for customer information pertaining to the IP address in question. In its response, Rogers provided the account subscriber name and the service address. The account subscriber was identified as Judith Cramshoj, who is the accused's mother, and the service address identified as 39 Coldwater Road West, Apartment 2, Orillia, Ontario.

Det. Lockhart testified that he became aware of the case of R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 in the year that it was decided, and consequently in 2014 changed his practice of making a direct request under PIPEDA to the ISP. In Spencer, the Supreme Court of Canada held that prior judicial authorization is required before subscriber information may be obtained from an ISP, because individuals have an expectation of privacy in what would otherwise be anonymous online activity. Det. Lockhart testified that since 2014 he has sought the required production order to acquire subscriber information.

The Warrant and Its Execution

A warrant to search the address provided by Rogers was issued by a justice on January 3, 2012, based on the ITO prepared by Det. Lockhart. The warrant allowed for entry, search and seizure on January 4, 2012 between 6 a.m. and 9 p.m., of the following four items:

1. Any computer contaminated with child pornography;
2. Computer graphic images/movies, electronic or printed, that show child pornography;
3. CDs or floppy diskettes that contain images/movies that show child pornography; and
4. Any computer, CDs or floppy diskettes that contain computer graphic images and computer graphic movies bearing four titles specifically listed.

As previously indicated, in preparing the warrant Det. Lockhart used the old Form 5, which extended the scope of the seizure to evidence in respect of the commission, suspected commission or intended commission of an offence. I have already determined that this rendered the warrant invalid on its face, and declined to sever the offending portion. Det. Lockhart agreed that the effect of the warrant was to permit a search for more than asked for in the ITO. He testified that he has been using the newest version of Form 5 only since September or October 2016, even though it became available in November 2011. Det. Power, who assisted in executing the warrant, testified that she could specifically remember another officer, Det. Spence, bringing the updated form to the attention of the unit, announcing to the officers that they needed to check their warrants because there was a new form. After this was brought to her attention, in October 2013 she began to use the updated Form 5 when preparing her own warrants. However, Det. Spence testified that he began using the new form only six months ago when, as a result of a previous case, it was determined that they were using the wrong form. He denied receiving any notice about the updated form before that time.

The warrant was executed on January 4, 2012, when Mr. Kramshoj was not at home. Its execution resulted in the police seizing a Dell desktop computer, four thumb drives, a black hardcover book, and a small plastic bag holding what was later identified as cannabis.

Each of the officers who helped in the execution of the warrant attended a briefing about the case at the detachment headquarters earlier that morning, and read the warrant and its attachments. Detectives Spence, Power and Lockhart all testified that despite the wording of the warrant, when they went to Mr. Kramshoj's residence they were only looking for evidence of the commission of the offences of possessing and making available child pornography. Det. Power in particular was clear that Appendix B to the warrant gave her the understanding that an offence had been committed on December 14, 2011, and she was confining her search to evidence of that past crime.

Once the police were able to gain entry to the apartment on January 4 at 12:37 p.m., the entire execution took 41 minutes in total. The seizure of the seven items took 18 of those minutes. The apartment was small, containing only three discrete rooms, and was in extreme disarray. The Dell desktop computer was readily identifiable in the living area, as was a TV, a Sony Playstation-3 (PS-3), a Wii device and a computer modem. Neither the TV, nor the modem, were seized.

The evidence of the officers testifying provided no certainty as to whether they found that the TV was being used as a monitor for the Dell computer. None of them, including the officer from the Electronic Crimes Unit, Det. White, made a note about whether the computer was turned on, whether it was connected to anything, or which wires had to be disconnected before the computer was removed. Det. Lockhart agreed that it would have been helpful to test the hypothesis that the TV was serving as a monitor for the computer while they were on scene. Det. White's evidence did not suggest that he needed to turn the TV on while checking to see that the computer was encrypted. The evidence of the police leads to the conclusion that they simply assumed that the computer was connected to the TV. This had some significance because Mr. Kramshoj's evidence was that the computer stopped functioning sometime in October 2011 and was only being used to charge his other devices. Further, his evidence was that it was not possible to connect the computer and TV, as they had cord incompatibility, one requiring a VGA cord and the other a DVI cord. According to him, it was the PS-3 that was hooked up to the TV to play videogames and stream movies. The original computer monitor, according to both Mr. Kramshoj and his mother, can be seen in photographs taken during the search, located on a shelf in his bedroom. None of the officers executing the warrant made any notes or particular observations about that monitor.

The explanation provided for not seizing the television, PS-3, keyboard and router was that these things are not capable of storing media. With an increase in the number of tech crimes, the property vaults at the detachment were becoming too full and a decision was made to not seize offence related property. Det. Lockhart testified that since the execution of the search warrant, they have learned that the Sony PlayStation's have the capability of data storage and will now seize that item of equipment.

Det. Spence was assigned to be the exhibits officer that day. A different officer, Det. Duhamel, was assigned to photograph the exhibits. Det. Duhamel was unable to say where any of the items that he photographed were originally located, and noted that when he works as a combined scenes of crime and exhibits officer, he knows that he is typically not to move the items before they are photographed. Here, he was following the direction of the specialized unit. Det. Spence confirmed that not everything was photographed exactly where it was found, with the exception of the computer. He has since changed this practice as a result of cases in which the original location of items has become an issue. One of the thumb drives was not photographed at all, with no explanation for that oversight. This turned out to be one of the thumb drives on which pornographic images were found. The vase in which it was found was not photographed, and he could no longer recall in which of two vases it had been located. Det. Spence was generally able to say where the items were found before they were moved to be photographed, and he noted the location on the Location Code Register. However, he also testified that the members of the Child Sexual Exploitation Unit have now changed their practices so that the exhibits officer takes his or her own photos.

Det. White testified that he did a cursory search on site simply to check for encryption. He believes that he did this through his own laptop computer and a write-blocker, in order to preview the hard drive. He had no independent memory of taking any of the steps necessary to determine the lack of encryption. Given that this happened over five years ago and he has been retired from full-time police work since the end of 2015, I assess his lack of recollection to be sincere rather than a marker of fabrication, particularly since his notes contain confirmation that he did this check while at the apartment. Beyond that, no further steps were taken on site to determine that the computer in question was the location of the IP address of interest, or that it contained the GUID or any of the items identified in Schedule A of the warrant.

The investigative plan presented to the justice stated that the police would conduct on scene data recovery for any computer graphic images and movies concealed or saved within any computer found at the dwelling.

The reason for removing these items before determining that they contained any of the items listed in the warrant appears to have been the unkept and disordered state of the apartment. Det. Lockhart was concerned about disease or contamination that would affect the health and safety of the officers or his family, and therefore did not want the team to have to remain there longer than necessary. Det. White testified that he did not feel comfortable remaining in the environment to do the cursory search, mainly because of what he stated in his notes to be the "mess" of the room. He stated that there was insufficient room on the coffee table because it was covered with other items, and there was no other table in the apartment. He conceded that he would have moved things from the table, but it did not strike him as a clean environment to work in. He also testified that the cursory search would not have taken more than 10 minutes to complete; the GUID and IP address could be found literally in seconds, and the four computer graphic files would not have taken long to find in this case. It did not require equipment beyond what he used to check for the encryption, all of which fit in a backpack.

Det. White testified that it was quite a common practice in his unit over the years to bring computers back to the detachment prior to performing a cursory search. Det. Lockhart could only recall a couple of occasions where the cursory search was done off-site, although last year a mobile lab became available to the OPP which allows the cursory search to be done outside of a home. He was not concerned with any legal ramifications of doing the search off-site, despite what was contained in the ITO. Det. Spence confirmed that the apartment was not very large, and was very dirty. However, he confirmed that the initial search was normally done on scene. He described how it is typical for the tech crimes officer to pick a place where he or she can sit comfortably, and then look for the GUID number and the titles of anything named in the warrant. Usually a cursory report is saved on a thumb drive and given to the crimes unit.

Det. Spence agreed that when he seized the computer and thumb drives he had no evidence that any of these items were contaminated with child pornography. He was never advised that the IP address that was the subject of the warrant on the computer, or that there was a GUID number that matched any program on the computer. Det. Lockhart confirmed that when the seized items left Mr. Kramshoj's apartment, no determination had been made that they contained any child pornography.

Photos were also taken of Mr. Kramshoj's driver's license, which was placed in plain view on a hutch in the living area, and of a letter from Rogers addressed to Judith Cramshoj that provided her account number, the date on which her account was registered, and her user ID. None of the officers were able to recall where that document had been originally located in the apartment, although it was photographed on the coffee table in the living area.

A black notebook was also seized, originally located on the floor under the sofa. Det. Spence did not read it, but explained that he seized it for Det. Lockhart to read later. He did so because there may have been information in it to lead to the identification of persons responsible if child pornography was later found on the devices. Det. Power was in charge of searching the bedroom. She confirmed that she was looking for novels containing child pornography, and was prepared to seize books bearing titles suspicious of child pornography. Although she did not find the black notebook in question, she confirmed that she would have reviewed it, and if she thought that it contained notations of passwords or websites, she would then have drawn it to the attention of the exhibits officer. Det. Lockhart opened the front cover of the book and saw that it bore the accused's name. In the normal course, at that time the Child Sexual Exploitation Unit members would seize books that contained text, typed or handwritten, that met the definition of child pornography. Since 2011, the practice of the unit has changed when drafting ITOs and warrants related to electronic searches. They now seek to include pre and post-offence date communications, e-mail addresses, stored identity information, anything showing ownership, and passwords, encryptions and deletion programs. Det. Lockhart explained that this practice developed because, in the course of executing these types of warrants, he has found books containing such information.

Each of the above officers confirmed that the black notebook did not fall under the terms of the warrant. Further, Det. Lockhart confirmed that if any of the officers were looking for books during the search of the Kramshoj residence, that search would be going beyond what was authorized under the warrant.

This seizure outside of the warrant was particularly intrusive because of what the book contained. Although the first page appears to contain a nickname very closely matching one later found to be assigned to the FrostWire program on the Dell computer, in handwriting denied by Mr. Kramshoj to be his, the black book also contains entries akin to what one would find in a personal diary. He identified those writings to be his. In this case the diary entries concerned Mr. Kramshoj's romantic feelings toward a childhood friend, now roommate, and are deeply personal. It matters not that he had once left the book open for his friend to see them; they were not meant for anyone else's eyes.

The cursory search was carried out on the computer immediately after returning to the detachment, within the hours set out in the warrant. At that time it was determined that the movies that Det. Lockhart had downloaded on December 14th were also on the Dell computer, that it contained the identified IP address, and the GUID matched that of the Gnutella client using LimeWire software. Evidence of child pornography depicting naked prepubescent males between the ages of 7 to 10 engaged in sexual activity was found on the Dell computer and on two of the four thumb drives.

Post-Execution Steps

On January 5, 2012 Det. Lockhart submitted the devices to the e-crimes section for forensic investigation, where a procedure was undertaken to obtain a forensic copy of the hard drive or device using EnCase forensic software. This is done so that examination can occur on copies of the evidence rather than the original exhibits. On February 23, 2012 Det. Lockhart obtained the extracted images and videos, he then used the program C4-All to view all extracted files and generate reports, in order to categorize and number the types of files found on the computer and thumb drives, and to establish bookmarks for all pathways. The C4-All reports prepared by Det. Lockhart were then used by Det. White to determine where the files of interest were contained on the devices.

The ITO notes that it is Det. Lockhart's intention to make a return before the issuing justice pursuant to the return provisions of the Code following the execution of the warrant. Det. Lockhart testified that in June 2012, it came to his attention that he had not filed the required Form 5.2 Report to a justice in this case. This came to his attention because the clerk notified him that the report in this case, along with that from two other cases, could not be located by someone looking for them at the courthouse. He reviewed his physical file in this case and the two others, saw that the required reports had not been filed, and thereafter attended at the courthouse in Orillia to file them. The date on the Form 5.2 is July 20, 2012, and he confirmed that this would have been the date that it was prepared.

As it turns out, this had been a systemic problem going back to 2010 for this officer. At the time of his discovery of this error for these three cases in June 2012, the true state of affairs was that he had actually failed to file any Form 5.2 reports in either 2011 or 2012. However, although he rectified the error for these particular three cases in 2012, it did not come to his attention that he had a far more extensive problem until after a judicial pretrial was held in this proceeding in January 2016. As he explained, the failure to file stemmed from the manner in which he was storing and labelling his files, which led him to believe when reviewing them that he had filed the Form 5.2 when looking through his court files on his computer. At the time, he was only preparing the Appendix A that he planned to append to the Form 5.2, but had labelled the document "justice report". He explained that he likely prepared that documentation in a hotel room because of his caseload and other commitments, and failed to file as required. He testified that since 2012 he has personally filed all of his reports directly to the issuing justice since first discovering his error in the Kramshoj case. Since then, he no longer prepares an Appendix A, but instead uses the new Form 5.2. However, he was adamant that he did not discover the full extent of the problem until he dug further into it in early 2016. After learning of his error, he immediately reported it to the Crown.

Defence counsel argued that this explanation is a fabrication and wholly unbelievable. He argued the Det. Lockhart would have known that he had not filed a return for over one and a half years, and ignored the fact because it was an inconvenience for him to drive to Orillia to file the report. When Det. Lockhart testified on June 19, 2014 before Beatty, J. in the case of R. v. Elez (unreported, August 7, 2015, Barrie Ont. Ct. J.), he said that he was aware that he had not filed returns on two other warrants executed on the same day as the Elez warrant, which included the warrant for Mr. Kramshoj's residence, and another about two years previously, out of a total of almost 800 warrants that he had been involved in by early 2012. Defence counsel submitted that Det. Lockhart fabricated his explanation about the discovery of his electronic error in 2016 in order to cover up his alleged perjury in the Elez case.

Det. White, in the meantime, continued with his examination of the copies of the exhibits, focusing primarily on the Dell computer. He produced a full forensic investigative report in May 2014. Then, as a result of learning of the availability of a software utility called AScan, he performed further investigative work into the files found in the FrostWire and LimeWire folders, using the original copies made of the hard drive. This further exploration was done in about February and March 2017. Before so proceeding, he sought and obtained the consent of Crown counsel to search for this additional information. The additional information extracted through AScan became the subject of a lengthy report, the AScan Report.

Position of the Parties

Defence counsel argued that there are three significant breaches of s. 8 committed by the authorities in this case: (i) the "Branton error"; (ii) the direct request to the ISP for subscriber information contrary to Spencer; and (iii) the failure to comply with s. 489.1(1) of the Code by not filing the report to justice as soon as practicable.

He also argued that there are further breaches of Mr. Kramshoj's right to be free from unreasonable search and seizure. The first of these is the removal of the seized items from the home with no assurance that they contained any of the evidence described in the warrant. An adjunct of this is the hasty manner in which the search was conducted, where it was not even noted whether the computer and television were connected, so that evidence was lost to the accused. The second example is the overall manner of the search - the photos were taken of exhibit after moving them, a photo was taken of sensitive Rogers account information without noting where the document was found, and the black book was seized outside of the warrant, after taking a photo of its first page. The third breach, he argues, was that both the secondary search done by Det. White in 2014 and the additional search done in 2017 were not permitted under the warrant. Finally, he argues that since the police were searching for evidence of the identity of the person who was accessing the LimeWire or FrostWire accounts to download the pornographic images and movies, they should have been using a warrant authorized under s. 487.01, rather than s. 487, which only permits them to search for "things".

Under the s. 24(2) analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the defence argues that the number, seriousness and effect of these breaches all point to the exclusion of the evidence.

Crown counsel concedes the two primary breaches outlined above, which have not already been ruled upon by the court, but disagrees that the s. 24(2) analysis would point to exclusion of the evidence. With respect to the additional alleged breaches of s. 8, she submits that there was nothing unreasonable about the search or its execution, and that it was not possible to carry out the cursory search on site in the circumstances presented to the officers. The law does not require that an additional warrant be obtained to analyze the contents of the computer and thumb drives, such that the 2014 and 2017 examinations of the exhibit copies was not unconstitutional. Last, this search was not in respect of information, but rather evidence of things that would prove the commission of the offences.

The onus is on Mr. Kramshoj to establish, on a balance of probabilities, why the admission of the evidence in the proceeding would bring the administration of justice into disrepute.

Analysis

Grant sets out a three-pronged test for determining the admissibility of evidence under s. 24(2) of the Charter. The court must ultimately consider the effect of admitting the evidence on, in the long-term, the public's confidence in the justice system and the maintenance of its integrity. In considering the broader, prospective consequences of the admission of evidence obtained by police in violation of an individual's Charter rights, three factors must be taken into account: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits.

The Branton Error

In preparing the ITO, Det. Lockhart stated that he "has reasonable grounds to believe and does believe that there are things in the Kramshoj residence... which there is reasonable ground to believe... will afford evidence with respect to the commission of an offence against the Criminal Code. Accordingly, he sought the warrant under the authority of s. 487(1)(b). However, the warrant to search is broader, in that it permits the seizure of the listed items as evidence in respect of the "commission, suspected commission or intended commission" of an offence. The warrant use by the officer containing such language was an outdated Form 5, and the broadening of the search beyond that authorized under s. 487(1)(b) has been referred to as the "Branton error", after the decision of R. v. Branton (2001), 53 O.R. (3d) 737 (C.A.).

As stated by Hill J. in R. v. N.N.M. (2007), 223 C.C.C. (3d) 417, at para 335:

Apparent conferral of searching and seizing authority exceeding what is properly supported by grounds in the ITO improperly risks overly broad conduct at the scene of the search, thereby implicating Mr. N.M.'s s. 8 Charter right to be free from search invalid court orders.

In my reasons for finding that the use of the old Form 5 created an invalid warrant (2017 ONSC 2147), I stated, at para. 27:

The warrant simply gave the police expanded powers beyond what Officer Lockhart had deposed to in the ITO. This is not just a matter of form over substance; the warrant as worded provided the state with powers of search and seizure beyond that contemplated by the information in the ITO. While I agree with the Crown that the schedules attached to the warrant indicate on plain reading that the search was intended to be only for evidence in respect to the commission of the offence, the warrant still permitted, by its wording, a much more intrusive search. I must conclude, therefore, that the warrant was constitutionally invalid on its face.

In the recently decided case of R. v. Nguyen, 2017 ONSC 1341, Fairburn, J. was faced with an identical issue, with the police using an outdated Form 5 in October 2013. The police force in question was the Peel Regional Police. Although she applied the principle of severance to rectify the warrant, such that there was no breach, she noted in her s. 24(2) ruling that it was concerning that this many years following Branton, the police were still using the outdated form that had been replaced years ago. Similarly, in R. v. Pitocco (unreported, November 22, 2016, Barrie Ont. Ct. J.), Det. Lockhart again used the outdated form in obtaining a warrant in January 2015. Bliss, J. noted at para. 63 of that decision that none of the officers involved in the investigation in that case were aware of the existence of the new form despite it being available online to police. As I infer from the evidence in this case, several officers in the Child Sexual Exploitation Unit were not using the new form until after Pitocco was released.

It is true that in this case the old form was used only two months after its successor was introduced. However, the findings in Pitocco, together with the evidence in this case, lead to the clear conclusion that this was a long-standing oversight, and neither Det. Lockhart nor any of the other officers involved in this case who reviewed the warrant were alive to the fact that, on its face, it authorized a broader search than was intended. This problem was intended to be rectified by the updated form, which breaks the terms "commission, suspected commission or intended commission" into separate areas, requiring the affiant to check off the relevant box beside each phrase. It is concerning that only Det. Power seems to have been aware of the change of form, although not until 2013, and that Detectives Lockhart and Spence only began using it in the latter part of last year.

But while it must be concluded that this was a systemic problem that continued to exist long past January 2012, at the time that it occurred in this case the mistake was inadvertent and has not been rectified. Further, the origin of the breach is a technical one, as s. 487(3) provides that a warrant issued under s. 487 may be in the form set out in Form 5, the permissive language leading to the conclusion that strict adherence to the prescribed form is not required.

However, that is not the end of the consideration of the seriousness of the state's conduct. The warrant is the guiding document for the scope of the police search, outlining their search powers both in terms of what can and cannot be searched for. As occurred in the pre-execution briefing in this case, the officers involved in its execution read the warrant. They do not read the ITO. As stated in R. v. Ting, 2016 ONCA 57, at para. 59:

For a search warrant to fulfill its functions, those who are relying on it - including police officers who are executing it and third parties whose cooperation is sought - must not be required to look past the warrant to the ITO.

A warrant that provides police with powers to search for evidence of suspected or intended commission of the offences in question poses a serious threat to a person's privacy interests. Particularly where the search is for items of an electronic nature, involving a personal computer and other devices, the heightened privacy interest that has been recognized by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, R. v. Vu 2013 SCC 60 [2013] 3 S.C.R. 657 and Spencer must be taken into account. Courts must act to safeguard those privacy interests by ensuring that the warrants are only as permissive as necessary. Here, a warrant that contains this broad authorization, in the face of an ITO that contains only Det. Lockhart's grounds for believing that an offence had already been committed, invites such an over-reaching. It is also clearly at odds with the attached Schedule B, which describes the offences as having occurred in the past, on December 14, 2011. As such, some responsibility for this error must be placed on the issuing justice, who could not have read the warrant carefully and with the caution of Branton in the back of her mind. Nonetheless, given the nature of the privacy interest at stake, the court should not countenance this very serious error and, accordingly, this consideration leans toward exclusion of the evidence.

The second consideration in this case involves asking whether the Branton error actually resulted in the seizure of any evidence that impacted Mr. Kramshoj's s. 8 rights. It is difficult to conclude on the facts of this case that the officers were searching for anything other than proof that the offences under subsections 163.1(3) and (4) had been committed. If it had only been the Dell computer and the thumb drives that were seized, this would be, in my view, an impossible argument for the defence to make. I have considered the seizure of the black book under this heading. I accept the officers' collective evidence that they were entering the residence only to look for the listed items suspected to contain evidence of the commission of the offences. Although the seizure of the black book is problematic and ultimately illegal for other reasons that will be explained later, nothing in the evidence surrounding its seizure leads me to conclude that the officers thought it might contain evidence of "suspected" or "intended" commission of the offences. Consideration of this prong leans toward inclusion of the evidence obtained during the search.

Obtaining Personal Information from the ISP

As the Crown concedes, on the basis of Spencer I find that obtaining the subscriber information directly from Rogers without judicial authorization, even though done prior to the decision in Spencer, results in the second breach of Mr. Kramshoj's s. 8 Charter rights.

I agree with Crown counsel that the fact that the conduct of the police in obtaining subscriber information through the use of a letter of request was the usual and accepted procedure at the time, and should be taken into account. The pre-Spencer law in Ontario approved the release of subscriber information from an ISP without a warrant; R. v. Ward, 2012 ONCA 660. A change in the jurisprudence results in an innocent mistake that does not require exclusion of the evidence: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 95; Spencer, at para. 77. Specifically as it relates to the issue of subscriber information obtained without a warrant, the reasonably held belief of an officer that he or she is acting lawfully, given the state of the law as it was at the time, is not police conduct that tend to bring the administration of justice into disrepute: Spencer, at para. 77; R. v. Capancioni, 2015 ONSC 7696, at para. 35; R. v. Varty, 2015 SKQB 51, at para. 69; R. v. Allen, 2017 ONSC 972, at para. 437. I agree with these trial court authorities in terms of the conclusion that an innocent pre-Spencer Charter violation does not require exclusion of the evidence under the first branch of the Grant analysis.

The impact of this particular breach on Mr. Kramshoj's Charter-protected interests was serious: Spencer, at para. 78. With the information obtained from Rogers, Det. Lockhart was able to obtain the warrant that led to the search at the address provided by Rogers which lead in turn to the violation of Mr. Kramshoj's online anonymity and privacy interests. Had the police lacked a specific address to include in the warrant the search of premises suspected to be occupied by Mr. Kramshoj would have been an illegal search: Ting, at paras. 47-50. Particularly with a multi-unit dwelling, as was the case at 239 Coldwater Road, the description must adequately differentiate the units within the building. Ting, at para 51. Under this second prong of the Grant test, the facts weigh strongly toward exclusion.

Failure to Make a Timely Report to Justice

As the Crown again concedes, the failure to file a report to justice for over six months from the date of seizure is a clear breach. This issue was decided in R. v. Garcia-Machado, 2015 ONCA 569, in which a failure to file the return under s. 489.1(1) until 15 weeks after the seizure was found to result in a breach of the accused's s. 8 rights. The failure to comply with the requirement under that section to file as soon as practicable rendered the continued detention of the seized items unreasonable, and therefore contrary to s. 8 of the Charter.

This breach is not akin to the pre-Spencer breach where there has been a new development in the law since 2012. The requirements of s. 489.1(1) of the Code have not changed. That Det. Lockhart knew that he was required to make a return is not in dispute, and is confirmed by paragraph 31 of his ITO where he sets out his intention to make a return before the issuing justice following the execution of the warrant.

As previously indicated, defence counsel seeks to have the court ascribe bad faith to the actions of Det. Lockhart, and to find that he lied while giving his evidence in Elez in 2013. If I were to make such a finding, such deliberate, egregious conduct would weigh into the seriousness of the breach. However, I do not make such a finding. The explanation provided by the officer rings true, as it is believable that he did not conduct an electronic search of his past court files until the issue of how many returns he had failed to file was pressed by defence counsel during a pretrial in January 2016. Until doing that investigation of his computer files, he had no reason to believe that he had failed to file more than the four times that he had stated in Elez. One may wonder how this can be true given that Det. Lockhart had not physically prepared the return nor taken it to the courthouse in the issuing jurisdiction in over a year and a half, and given that his practice has been to prepare a fairly elaborate folder containing the ITO, warrant to search and report to justice to file with the court in each case. I do not find it difficult to accept this state of affairs as nothing more than inadvertence, given that during 2011 and 2012, he authored 55 Criminal Code search warrants. Further, Det. Lockhart has been involved in anywhere from 2,000 to 3,000 cases during his 17 years as a member of the Child Sexual Exploitation Section. Although he did not allude to his workload specifically other than to say he became busy with other matters, Det. Power gave testimony from which I infer that this particular colleague of hers has a significant caseload. Beyond the sheer volume of cases, the subject matter of the work done by the officers in the Child Sexual Exploitation Unit must exact a toll on the officers, particularly one who has been a member of the unit for as long as Det. Lockhart. While I do not want to be seen as excusing the oversight or failing to label it as negligent, which it was, a consideration of the entire context of Det. Lockhart's evidence leads me to conclude that he was being completely honest about his discovery of the error. The error falls short of being deliberate or showing a wanton disregard for his duties. Overall, Det. Lockhart impressed the court as being a careful and thorough witness and officer, and not one who approaches his duties in a cavalier fashion. I do not accept counsel's submission that he overlooked the filing of the return just because it was an imposition to drive to the courthouse. Also, as opposed to being a systemic error, the evidence provided by the other officers in this case indicates that the repeated failure to make a return to justice was limited to Det. Lockhart.

I also note that the Report to Justice that was eventually filed in this case erroneously states that as a result of the execution of the warrant on January 4, 2012, a laptop and cell phone were located and searched. This is clearly in error and contrasts with the list attached as Appendix A to the report.

As set out in the Crown's factum, the court in Garcia-Machado set out seven reasons why the evidence in that case should not be excluded. Crown counsel argues that six of them apply in this case with which I must disagree. First, the initial search was not valid, as was the case in Garcia-Machado. As held in Spencer, at para. 74, without the information obtained by police from the ISP, the warrant could not have been obtained. Once the subscriber information is excluded from consideration because of being unconstitutionally obtained, there were no longer adequate grounds to sustain the issuance of the warrant, and the search of the residence was therefore unlawful. Spencer was applied to reach the same conclusion in R. v. Singh, 2015 ONCJ 328, at paras. four to six, where it was determined that a search warrant obtained following a Law Enforcement Request to Rogers for subscriber information was constitutionally invalid.

Second, there was no diminished privacy interest at the time of the breach. The court in Spencer makes clear that the informational privacy interests at stake when a search is made for the purpose of linking a subscriber's identity to their online activity engages s. 8, and that an expectation of privacy is reasonable in the circumstances. I can see of no reason why, in the face of an invalid warrant, Mr. Kramshoj's expectation of privacy in the items held by the police would be lessened. Third, the property seized in this case, unlike in Garcia-Machado, was not what was precisely authorized by the warrant and used for precisely the purpose authorized. The black notebook and the photograph of the letter from Rogers were all outside the scope of the warrant. Fourth, had there been compliance with s. 489.1(1), it is highly disputable that the police would have been permitted to retain or examine the black notebook.

The failure to file the report is a serious breach because of the length of time that it persisted, and the conduct may have continued to persist and affect the rights of others had it not been brought to the fore by defence counsel's inquiries. This is not a case, as in Garcia-Machado, of a blood sample and medical records. As previously stated, it involves a personal computer and devices, in which there is a high expectation of privacy. Accordingly, I would not consider this to be a minor or technical breach, as it deprived Mr. Kramshoj of the court's supervisory role over his privacy interest for a lengthy period. It had a real impact on his s. 8 interests and, in particular, allowed the police to retain and use the devices and a personal notebook containing highly confidential information. The police failed to provide notice under s. 490(2) that the state wished to obtain an extension beyond the three month detention period, and so he was further deprived of the opportunity to argue that any of the items seized should be returned to him. Such notice is particularly important where privacy is at issue, as in this case: R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531. Both the seriousness of the breach and the impact on the accused militate in favour of exclusion.

The Manner of the Search

I will deal first with the allegation that evidence was lost to the defence from the manner in which the search was carried out. The first aspect of this is that no photograph was taken, nor any note made, of the manner in which the television, PS-3 or computer were connected. This became important to the defence because of Mr. Kramshoj's assertion that the television and computer were incapable of being connected due to their cord incompatibility, the television being the only piece of equipment in the room close to the computer capable of acting as a monitor. He further argued that the failure to examine the router for information and to note whether it was plugged into the computer led to the loss of information about whether Mr. Kramshoj's internet connection or hard drive had been accessed from outside of his apartment.

The difficulty with this assertion and why I reject is as comprising an unreasonable aspect of the search, is that both the television and the router remained in Mr. Kramshoj's possession following the search. While he was not required to prove anything at trial, he chose to lead evidence. He testified that the router and television came with him to his mother's house when he moved in with her as his surety, and may still remain there, but he was vague and uncertain in his evidence as to their whereabouts. Mr. Kramshoj led evidence in this case from Mr. Martin Musters, a computer forensics expert. It is difficult to understand why, if these issues were important to his defence, greater effort had not been put into locating both of these objects. There was nothing in Mr. Musters' evidence to support the claim that the television and computer would be incompatible. A full description of the computer was available to Mr. Musters through the disclosure process, and so there was no certainty regarding its specifications. Mr. Musters did say that the range of the router was approximately 150 feet, so theoretically anyone within that range could access the Internet. Further, depending on the settings, or through the use of commercial programs, it was possible to access the hard drive. However, no explanation was provided by him for why he had not examined the router other than that he did not have access to it. Accordingly, I cannot agree that the evidence was lost; rather it was not brought forward by Mr. Kramshoj through the evidence of someone with proper expertise to testify to these issues.

I will next deal with the allegation that evidence was lost as a result of the method by which the exhibits, and other items, were photographed during the search. Moving items to be seized from their original position before photographing them is not a best practice, as commented upon by Det. Duhamel, but in this case there is no evidence that the movement of any of the exhibits compromised Mr. Kramshoj's defence. The practice of the members of the Child Sexual Exploitation Unit has now changed, so that this no longer done.

However, a photograph was taken of the letter from Rogers which provided the account number on the Rogers account, as well as the user ID. The letter itself was not seized as an exhibit, so its location was not noted on the Location Code Register completed during the search. None of the officers could recall where it was originally located. It was photographed on the coffee table in the living area. Photographs taken of the living area, which the officers testified captured the room as they first found it, do not show that letter anywhere in that room. Mr. Kramshoj's evidence was that he would have kept the document in one of two boxes where he placed tax records and important documentation. Normally the boxes were under his bed or in the closet. He identified them as being on the bed in one of the photographs taken of his bedroom.

This was an important item of evidence because exclusive use was the core of the defence. The information on the letter could allow someone to access his Rogers account. He testified that his computer was not password protected, which was verified by Det. White. Mr. Kramshoj's evidence was that many friends and acquaintances had access to his apartment through a key that he left by a light fixture in a common area of the building. His testimony was that he may not have been at home on the evening of December 14, 2011 and that prior to the search, he had last been home on the morning of January 3, 2012. It was part of the theory of the defence that someone other than Mr. Kramshoj may have accessed his computer during periods that he was not at home. The Rogers letter and its location was important to the defence. If it had been removed from where Mr. Kramshoj normally kept it by someone other than the police, it would have assisted his defence. That, however, is a missing piece of information that is directly attributable to the manner of his search.

This was an unreasonable aspect of the search. The police thought that it was an important enough piece of evidence to warrant taking a photo of it. It is insignificant that at the time they would not necessarily know how it might be important to the defence; simply by virtue of the fact that they were entering a highly private sphere of a personal residence, greater care was required to document where and how such key items were found, to ensure that the evidence was preserved. Here is was not, at significant prejudice to the accused. This was a serious breach of Mr. Kramshoj's s. 8 rights, and the effect on his right to a fair hearing was compromised.

The warrant did not permit the seizure of printed material other than pictures depicting child pornography. It did not permit the seizure of passwords or identification. However, the black notebook was seized on the chance that it might contained something of interest. Although, s. 489(1)(c) of the Code provides that authority to seize items not listed in the warrant, there was nothing on the face of the book that would suggest that it contained printed pornographic images. It was seized ostensibly because it "might" contain information leading to the identification of the person who committed the offences, if child pornography was later found on the devices. Yet it was opened by Det. Lockhart, and a photo taken of the contents of the first page. Although he provided vague evidence that similar printed information had been found during other searches, in my view this was not sufficient to form a belief on reasonable grounds that the book would afford evidence of the crimes alleged to have taken place on December 14, 2011. The notebook did not fall under the terms of the warrant, and its seizure was unreasonable.

Further, during her search of the residence and bedroom in particular, Det. Power was searching for books or other printed material suggestive of child pornography. The evidence of the officers left no doubt that this was a fairly routine practice in their unit when executing warrants. Again, that was a search going beyond what was authorized under the warrant, as admitted by Det. Lockhart.

I will now deal with the fact that no cursory search was done on-site to confirm the IP address or GUID number before seizing the items and taking them back to the detachment. Paragraph 28 of the ITO states:

During the execution of such a search warrant, members of the Ontario Provincial Police, Electronic Crimes Section will accompany the search team and a cursory search of the found computer will be conducted to determine the content. The Ontario Provincial Police, Electronic Crimes Section members will conduct an on the scene data recovery for any computer graphic images as well as any computer graphic movies that are concealed or saved within any computer found at the Kramshoj/Cramshoj dwelling house. The recovered computer graphic images as well as computer graphic movies will be observed to determine their content and determine if they further support evidence of the known offences of possession/making available Child Pornography. This cursory search of the located computers will be conducted under the authority of Section 487(2.1) of the Criminal Code of Canada.

Defence counsel argues that s. 487(2.1) of the Code requires that this cursory search be done on-site. Without doing so, the police are seizing items without evidence that they are items containing child pornography as listed in Appendix A to the warrant, as they did in this case. As such, they removed things from the apartment without authority granted under the warrant. Crown counsel argues that where the condition of the apartment or other circumstances do not permit such a cursory search to be done on-site, the investigative plan set out in the ITO does not need to be strictly adhered to. Further, the wording of s. 487(2.1) is not mandatory, meaning that its drafters considered that there would be circumstances where it would be difficult or impossible to undertake a cursory search in the place being searched.

Section 487(2.1) reads as follows:

A person authorized under this section to search a computer system in a building or place for any date may:

(a) Use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

(b) Reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;

(c) Seize the print-out or other output for examination or copying; and

(d) Use or cause to be used any copying equipment at the place to make copies of the data.

This subsection must be read together with subsection 487(1)(d), which authorizes the peace officer named in the warrant "to search the building, receptacle or place for any such thing and to seize it". The "it" referred to in that subsection is, as set out in subsection 487(1)(b), "anything that there is reasonable grounds to believe will afford evidence with respect to the commission of an offence".

These sections of the Code lead to the conclusion that there is no requirement for police to make certain that the items being seized in fact contain the suspected information prior to seizure, whether suspected titles, child pornography generally, a GUID number or IP address. In Vu, at para. 48, Justice Cromwell stated that "once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce, and print data that they find" [emphasis added]. Further, at para. 49 he added:

If police come across a computer in the course of the search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.

If a computer may be seized without warrant on the assumption that it contains things authorized to be seized under a warrant, then, as in this case, a warrant that permits the seizure of computers, CDs or floppy diskettes on the reasonable grounds that they are believed to contain child pornography must certainly permit the seizure of those things for further examination. This conclusion is supported by the Alberta Court of Appeal in R. v. Weir, 2001 ABCA 181, at paras. 18-19:

Under the authority of the search warrant the police seized the appellant's CPU [central processing unit] and several diskettes. The extraction of data occurred at a later date. The warrant authorized the seizure of "things", described, in part, as "computer equipment including a magnetic or other machine readable storage equipment... or any other device... used or capable of being used to create, store or manipulate electronic documents, records or graphic files..." This definition is broad enough to cover the CPU.

The appellant argues that subsequent to the Criminal Code in 1997 allowing for on-site data collection preclude off-site data collection. This is untenable. The police had a warrant to seize the computer from the appellant's home. That is exactly what they did. As long as the CPU was seized properly, the information contained in it could be extracted at a later date. To adopt the analogy used by the trial judge, this is not unlike the seizure of blood in which police do not want the blood, but rather, the information that the blood can provide.

A reading of the trial decision in R. v. Weir, 1998 ABQB 56, at paras. 79-80, confirms that the amendments to the Code referenced by the Alberta Court of Appeal in the above excerpt were the proclamation of s. 487(2.1) and (2.2).

Even though the ITO stated that it was part of the investigative plan to conduct a cursory search on-site, the justice would have had no basis in law to deny the warrant if the investigative plan had stated that the items would be taken back to the headquarters for the performance of the cursory search. Accordingly, that part of the ITO is of little significance. Further, the officers' reasons for conducting the cursory search off-site is of not importance. Finally, given that the cursory search was performed within the hours permitted under the warrant, and confirmed the presence of the items listed in its schedules, there can be no further challenge made to this cursory search.

Further Warrants for the Later Forensic Examinations

Defence counsel argues that the police required a further warrant for any examination of the context of the computer and hard drives after the expiry of the initial warrant. The justice issuing the warrant authorized the police to enter the dwelling on the prescribed date and during the limited hours to search for and seize the items in Appendix A, and to "bring them before me or some other justice to be dealt with according to law". Crown counsel argues that it would be a waste of police and judicial resources to require another warrant in order to analyze the devices found in Mr. Kramshoj's residence.

I agree with Crown counsel that there is no general authority in law requiring the police to obtain a second warrant to search the devices in circumstances where the original warrant clearly encompasses the seizure and search of those items. The court in Vu, however, does not discuss circumstances in which the issuing justice may wish to delineate the search parameters in the initial warrant, or take a two-stage approach where they would issue the warrant for the initial seizure and then have the police return for an additional authorization to search the seized device: para. 62. In our case, however, paragraph 27 of the ITO refers to a more in-depth search being carried out by the e-crimes unit beyond that cursory search. This was also the case in Pitocco, in which the investigative plan in the ITO specifically contemplated a detailed search of the articles by the e-crime section. Bliss, J. held that it was clear that the police were seeking authorization for a forensic examination, and accordingly it was not necessary for police to obtain a second warrant for that purpose.

R. v. Little is an agreement with the proposition put forth by defence counsel. Little involved a situation where a cell phone that had been encountered during the search was seized, although not included in the list of items to be seized. Fuerst, J. held that a further warrant was needed to examine the contents of the phone because it was an electronic storage device that, like a computer, was capable of revealing vast quantities of personal information: para. 147. Of more significance to this case, in Little the police obtained judicial authorization to search computers for communications, but the search was limited to a time frame of six and a half hours. Fuerst J. held that once the warrant expired, it being the only authorization for the search, the police were no longer authorized by law to search the computer's contents. Her reasoning, at para. 161, is persuasive:

I appreciate that the review of the contents of a computer can take days, weeks and even months to complete. In this case, it carried on with Detective Slade's examination into May 2007. It is within the ability of the applicant for a search warrant to specify in the Information to Obtain the time that will be needed to complete the search of the computer, and to seek a warrant that is valid for that period. In this case, the applicant did not do so and the justice of the peace imposed a time limitation without the benefit of that information. Nonetheless, the police were bound by the time frame specified by the justice of the peace.

However, Little is not binding on me and I must consider that a contrary decision was reached by the British Columbia Court of Appeal in R. v. Ballendine, 2011 BCCA 221, at paras. 64-70. The court held that a subsequent warrant to search the hard drive of a computer was not required where the warrant expressly authorized the police to "search for and seize", among other things, computers.

There was no urgency in examining the copies of the hard drive and other devices in this case. Mr. Kramshoj was arrested the next day and the devices were already in the hands of the police, with confirmation obtained that it held the IP address and GUID number of interest. The investigations that were carried out by Det. White involved an unlimited review of the computer's contents. No steps were taken to determine whether the justice would limit the search to only certain aspects of the hard drive. While I accept that the search was undertaken was done for the purpose of finding evidence that was relevant to the offences, it was nonetheless an unrestrained, broadest possible search of the entirety of the computer. However, on the basis of the authorities reviewed, I must conclude that no further warrant was required to search it beyond the one obtained in this case.

Warrant under s. 487.01

The applicant submits that the search warrant should have been issued pursuant to s. 487.01 as it was a search for information about the identity of the user of the computer, and not a search for "things".

I agree, in part. The whole purpose of the search warrant was to use it as an investigative tool to assist in providing the elements of the subject offences, including knowledge, intention and control on the part of the user. The police were clearly seizing the items with a view to investigating whether they contained child pornography, but also with a view toward identifying the person responsible for downloading it. For that reason, they took a photograph of Mr. Kramshoj's driver's license and the rooms in the apartment, even showing the type of clothing hanging in the closet, presumably as proof that he occupied the searched premises. Identity was in part the reason for seizing the black notebook. I have previously indicated that seizing such identifying information was outside the terms of the warrant. And as counsel argued, the ITO indicates the officer's belief that the search would afford evidence to assist in identity. When the forensic investigation was carried out by Det. White, part of the information gathered - the name assigned to the user account, the nickname given to the FrostWire program, names given to folders, files and documents - were all used in the Crown's case to assist in identifying Mr. Kramshoj as the individual responsible for the crimes charges.

That, however, will always be the case given the nature of the information that computers and related equipment are capable of holding. As cited in Vu, personal computers are capable of storing immense amounts of information that will touch "biographical core of personal information": para. 41. Any justice issuing a warrant to search a computer and related equipment will necessarily weigh such distinctive privacy concerns and interests arising from the search of computers and related equipment. In my view, the police proceeded properly by obtaining a warrant under s. 487 to search for the computer and related equipment containing evidence of child pornography.

Section 24(2) Analysis

To summarize, Mr. Kramshoj's s. 8 rights were violated by: the Branton error; the unauthorized request to Rogers for personal information (the pre-Spencer error); the failure to make a timely report to justice; and the unreasonableness of the searched occasioned by the seizure of the black notebook and, most egregiously, losing important evidence about where the Rogers letter was located in the apartment during the search. As indicated throughout, I have been considering and weighing the first two prongs of the Grant test.

The third stage of the Grant inquiry requires the court to consider society's interest in the adjudication of the case on its merits. There is a clear societal interest in prosecuting those who foster the despicable exploitation and abuse of children by possessing child pornography and making it available to others. The seriousness of this offence also means that the possibility of admitting the evidence must be weighed against the public's interest in seeing a justice system that is above reproach, comforted that the rights guaranteed to each of us under the Charter are not being indiscriminately trampled upon. Iacobucci J.'s comments in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.), at para. 50, summarizes this tension:

[W]e should never lose sight of the fact that even a person accused of the most heinous crime... is entitled to the full protection of the Charter. Short-cutting or short circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system.

The evidence obtained by the police if admitted, was in my view highly reliable and the evidence led by Mr. Kramshoj did little to displace that view. Each of the examinations, both the cursory one and those conducted later, produced credible evidence that the user account "adamk" had full access to the operating system, that on December 14, 2011 starting at 11:14 p.m. and over the next 48 minutes, 40 titles suggestive of child pornography were in the FrostWire saved folder, six of which were later reliably identified by Det. Lockhart as child pornography, and the thumb drives containing the child pornography had been plugged into the Dell at some point. The four videos observed by Det. Lockhart on December 14 were ascribed the same GUID numbered identified by him. They had later been moved into a LimeWire saved folder within a folder identified as "My Documents", which was on a setting that allowed the files to appear in a thumbnail view, displaying a picture or a frame from the video showing clear evidence of child pornography. All of these things, and others, including Mr. Kramshoj's level of computer literacy, made a strong case for inferring his knowledge of the existence of the child pornography on his computer. The admission of the evidence from the computer and thumb drives would enhance the truth-seeking function of the criminal trial. He was however, compromised in his defence in a material respect by the loss of evidence from which inferences may have been able to be drawn about exclusive use.

Exclusion of the evidence would defeat the Crown's ability to prove the charges, as it is clear that the breaches began with the direct request from Rogers, and multiplied from there. Without the evidence of the physical address associated with the IP account, the warrant could not have been obtained. And once obtained, aspects of the search carried out under it were not reasonable, and evidence important to the defence was lost. The failure to file the return, although not done in bad faith or deliberately, had the effect of the items being in the possession of the police for a period of close to six months, during which time the forensic searches had begun. The breach cannot be cured by late filing.

The breaches are multiple, and they are serious. In the context of the totality of the circumstances, and the effect of admission of the evidence on the administration of justice, the accused has met the onus of establishing that all of the evidence obtained during and as a result of the execution of the warrant must be excluded.

Verdict

As the Crown is unable to prove the guilt of Mr. Kramshoj without the evidence obtained during their search of his apartment, an acquittal must be entered.

Form 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and accurate transcript of the recording of R. v. Adam Kramshoj in the Ontario Court of Justice, held at 75 Mulcaster St., Barrie, Ontario taken from Recording No.(’s)3811_02_20170502_091647_10_HEALEYS.dcr which has been certified in Form 1.

May, 2017

Shannon Heryet - ACT #3389634078