Court File and Parties

COURT FILE NO.: 7513/14 DATE: 2017/06/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOHNATHAN TOWNSEND

Counsel: H. Mitchell/C. Tomusiak, for the Crown J. Tremblay-Hall, for Johnathan Townsend

HEARD: March 24, 2017

Varpio, J.

Reasons on Section 8 Application

Ban on Publication pursuant to S. 486.5 of the Criminal Code of Canada

Overview

[1] Shortly before trial, I was advised by counsel that Mr. Townsend would be bringing an application pursuant to section 8 of the Charter seeking an Order excluding certain computer evidence. The jury was selected on Monday, March 27, 2017 and the application was heard that week. On Friday, March 31, 2017, I released a brief endorsement indicating that the application was dismissed and that the evidence was admissible. Opening statement by the Crown was given on Monday, April 3, 2107. On April 20, 2017, Mr. Townsend was found guilty of first-degree murder.

[2] Given the aforementioned timelines, I was not able to provide reasons prior to the verdict. These are the reasons in support of my decision to admit the evidence in question.

The Evidence

[3] The evidence on this application was not particularly contentious, with the notable exception of the officers’ understanding of search warrants.

[4] Ms. Corellie Bonhomme was killed on August 8, 2013. Her dead body was found by Mr. George Townsend (the accused’s father) on the evening of August 9, 2013 in Mr. Johnathan Townsend’s apartment.

[5] Exhibit books were filed on the application containing, inter alia:

1. A Warrant to Search dated August 20, 2013; and
2. The information to obtain (“ITO”) supporting that warrant; and
3. A Report to Justice dated August 22, 2013.

[6] The Warrant to Search (Form 5 C.C.) described the place to be searched as the “Sault Ste. Marie Police Services Property and Exhibit shed” with the municipal address given. Such warrants are known as “Locker Warrants.” The items to be searched for were described as a black computer bag containing a laptop. The Locker Warrant authorized the police to seize these items between 9:00 a.m. on August 20, 2013 and 9:00 p.m. on August 20, 2013. The offence allegedly committed as per the Locker Warrant was that “Johnathan Townsend on the 8th of August 2013, did commit second degree murder on Corellie Marlyn Bonhomme contrary to section 235 of the Criminal Code of Canada”. The Locker Warrant was signed by a justice on August 20, 2013. It should be noted that the Supreme Court of Canada’s leading case on computer searches, R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, was released on November 7, 2013.

[7] The ITO described its purpose as seeking to “acquire Judicial Authority to search the items listed in paragraph 16 of this affidavit for any evidence of the offence of murder, that Johnathan TOWNSEND may have communicated, prior to or after the incident” [emphasis added]. I note that paragraph 15 of the ITO, not paragraph 16, contained a list of items to be seized that included the computer in question. Counsel did not take issue with this error and I infer that it was a typographical error and that nothing hangs in the balance. The ITO described eye witness evidence of Mr. George Townsend as well as the evidence of police officers who observed Ms. Bonhomme in Mr. Johnathan Townsend’s bathtub.

[8] The ITO does not specify that the police sought photo and/or video evidence from the computers described therein.

[9] The ITO also described surveillance video of Mr. Townsend’s apartment door wherein it specified that: [1]

1. On August 8, 2013, at 00:26 a.m., Mr. Townsend was observed carrying a black bag into his apartment;
2. On August 8, 2013, at 3:02 a.m., Ms. Bonhomme was observed entering Mr. Townsend’s apartment;
3. On August 8, 2013 at 4:24 a.m., Mr. Townsend is seen leaving his apartment carrying items including a black computer bag; and
4. On August 8, 2013 at 08:27 p.m., Mr. George Townsend enters Mr. Townsend’s apartment.

[10] The ITO then indicated that:

[m]embers of the Technological Crime Unit section could forensically analyze a computer system and digital camera and retrieve a wide variety of information from it. This information includes, but is not limited to copies of web pages created on the computer or downloaded from the internet, copies of electronically created documents and images, copies of e-mails received and sent from the computer system, and records of instant messaging and chat conversations (eg. ICQ, MSN Messenger).

[11] The ITO also indicated that security techniques such as passwords and encryption could make analyzing a computer a difficult phenomenon:

It requires time, experience and computer resources to defeat these and other techniques. Accordingly, it is necessary to examine the entire hard drive, storage media and digital cameras including the directory structure, program files, and – in varying degrees – each and every file to complete a comprehensive search of electronic evidence.

[12] Pursuant to this search warrant, the Sault Ste. Marie Police Services (“SSMPS”) seized data from Mr. Johnathan Townsend’s computer that he had been carrying in his backpack. This data comprised Skype Chat Logs which are recordings of typewritten conversations that Mr. Townsend had with several others including a person known as Ashlynn.Cook. In his conversation with Ashlynn.Cook in the days and hours leading up to Ms. Bonhomme’s death, Mr. Townsend wrote of his intention to kill Ms. Bonhomme and his motivations for wanting to kill her. In the hours immediately after Ms. Bonhomme’s death, Mr. Townsend admitted that he had killed Ms. Bonhomme and indicated that he was not able to clean up the crime scene such that Mr. Townsend anticipated going to jail.

[13] The data seized from the computer included internet searches undertaken by Mr. Townsend. These searches sought information on “grinding” bone and the Canadian penalties for murder.

[14] The Exhibit Books filed also contained the relevant Report to Justice wherein the SSMPS reported to a justice that a computer bag containing a computer was seized by the SSMPS from its own exhibit shed. The Report to Justice did not describe any analysis undertaken by the SSMPS on the computer.

[15] Det. Constable Douglas Erkkila and Staff Sergeant Thomas Armstrong were called on the application.

Staff Sergeant Armstrong

[16] S/Sgt. Armstrong testified that he was the primary investigator in the instant investigation. His responsibility was to review everything with respect to the investigation.

[17] On August 8, 2013, S/Sgt Armstrong was notified of a dead female in a bathtub at the accused’s apartment. Surveillance evidence established a timeline, and the comings and goings of the accused and the victim as they entered and left the apartment.

[18] S/Sgt Armstrong anticipated the following evidence would be called at trial:

1. Surveillance evidence of the accused’s apartment;
2. A forensic pathologist to establish the cause of death as a single stab wound to neck;
3. A footprint expert to describe the footprint in the victim’s blood
4. DNA analysis from scene;
5. The accused’s statement wherein he admitted to killing Ms. Bonhomme; and
6. Evidence gathered from computer examinations.

[19] S/Sgt. Armstrong testified that on or about August 8, 2013, he became aware that Mr. Townsend had left items in the back of his mother’s car including a black backpack, a computer bag and a Walmart grocery bag. Mr. Townsend’s mother gave the police consent (on video) to seize these items, which the officer did. He did not open any of the bags without judicial authorization. The items were tagged and placed in the SSMPS exhibit shed on August 9, 2013.

[20] On August 20, 2013, S/Sgt. Armstrong and Det. Michelle Johnson attended the exhibit shed with the Locker Warrant. They reviewed the signed warrant and retrieved the three bags at approximately 3:00 p.m.

[21] During the investigation, S/Sgt Armstrong gave Det. Erkkila pertinent documents, including the Locker Warrant.

[22] In cross-examination, S/Sgt. Armstrong testified that it was his belief that the face of the warrant and the ITO are to be read in tandem. As per the officer, the warrant authorizes the search of a place while the ITO tells the reviewing justice that which will be done with the items seized. The officer believed that the data analysis undertaken on a computer is, in fact, an analysis and not a search.

[23] S/Sgt Armstrong agreed under cross-examination that the search warrant did not contain any search parameters (i.e. areas to be avoided, specific search engines, etc.). S/Sgt Armstrong indicated that the police were looking for communications and/or pictures that would afford evidence of the crime alleged.

[24] S/Sgt. Armstrong testified that Mr. Townsend was initially charged with second-degree murder but that, as a result of the computer search undertaken by Det. Erkkila, Mr. Townsend was charged with first-degree murder on September 25, 2013.

Detective Erkkila

[25] Det. Erkkila, a police officer with the SSMPS, was called by the defence as the individual who searched the computer. He testified that he is in his 20th year with the SSMPS in the Technological Crimes Unit. He is senior by time in unit, but not by rank. He has been qualified as an expert in the Ontario Court of Justice, the Ontario Superior Court of Justice and Circuit Court in Sault Sainte Marie, Michigan. He has a Bachelor of Sciences in Operating Systems (computer sciences) from Lake Superior State University. He has taken different updating courses on computer data extraction throughout his years as a police officer and maintains a certification with the International Association of Computer Examinations.

[26] Det. Erkkila testified that he was aware of the warrant that enabled him to retrieve data from the computer.

[27] He testified that on August 20th or 21st, 2013, he was notified that he was required to examine computers that were obtained during the murder investigation.

[28] Det. Erkkila testified that, depending upon the data contained in a computer and the levels of security including encryption, passwords and the like, data analysis can take considerable lengths of time. The first step in analyzing a hard drive involves making a mirror image of the seized computer’s data. The police then analyze the copied data so as to ensure the integrity of the original data. Det. Erkkila followed this procedure in the instant case.

[29] Det. Erkkila testified that it is his belief that s. 487 of the Criminal Code of Canada authorizes police officers to seize a device and then search it in perpetuity. He compared a computer search to the analysis of a blood sample whereby, once police have judicial authority to analyze a blood sample, they can analyze said blood sample for as long as necessary.

[30] Det. Erkkila was pressed on this issue by defence counsel. He testified that the computer is not the “place” to be searched as per the warrant in question. It is the item to be retrieved. The locker, on the other hand, is the place to be searched. Det. Erkkila indicated that, to his knowledge, Vu mandates that a warrant’s ITO must specify to the issuing justice those analyses that police will undertake with the computer. Det. Erkkila was asked pointed questions by defence and did not deviate from his view.

[31] Detective Erkkila testified that if he were to have found evidence of another offence (for example, child pornography), he would have had to have sought a separate warrant since the warrant in this case only authorized searches for evidence related to a homicide.

[32] Det. Erkkila believed that on August 20, 2013, S/Sgt. Armstrong attended the SSMPS Exhibit shed and seized the computer pursuant to the aforementioned Locker Warrant.

[33] On August 22, 2013, Det. Erkkila began his forensic investigation of the computer.

[34] Pursuant to the search, two areas were examined by Det. Erkkila. Det. Erkkila searched approximately 200 photos and videos (there were not many videos). He was looking for pictures of the accused and the victim. He found none. This search was undertaken by using what is known as a thumbnail review, that is a review of smaller photos displayed in a tiled format that permitted him to review the pictures 30 to 50 at a time.

[35] The other area to be searched was that portion of the hard drive containing internet-based communications. Det. Erkkila told the Court that when he search Mr. Townsend’s computer, he used software generated by a Waterloo-based police officer that enables a forensic investigator to input key words into a search. The software searches the entire hard drive for those key words and produces results containing those key words.

[36] Det. Erkkila indicated that it was his belief that four devices were seized by police and that he began the search of the four hard drives on August 23, 2013. Det. Erkkila used the software previously described and entered seven key words including “stripper” and “Marilyn”. He searched the computer that was seized from Mr. Townsend’s mother. The search began on a Friday and, when Det. Erkkila returned to the office on Monday, the search was complete. [2]

[37] The search yielded significant results including 36,000 Skype Chat Log messages. Det. Erkkila then began looking at the messages in reverse chronological order. The last message was dated August 8, 2013. The officer could not recall the exact time stamp of the most recent message. The most recent messages were all relevant to the investigation and so he narrowed his search to the content described in those messages. These messages – on Mr. Townsend’s “zebepets” account – largely involved a conversation between Mr. Townsend and Ashlynn.Cook. The conversation described the murder. Det. Erkkila reviewed these conversations (which went back to May 2013) and noted that the conversations also included passages between “zebepets” and a user named “kibadarkwolf”. Det. Erkkila testified that some of these conversations also involved other users (he estimated less than a dozen), however he looked at no conversations that occurred prior to May 2013 since these did not appear to be relevant to the case.

[38] Det. Erkkila then examined Mr. Townsend’s internet searches. Det. Erkkila only reviewed those searches generated by the forensic software (after using keyword search) that occurred after the spring of 2013. Det. Erkkila testified that those searches were the only ones that would potentially be relevant. These searches yielded the evidence of internet searches wherein Mr. Townsend looked up “grinding bone” and Canadian murder penalties.

[39] Det. Erkkila agreed that some of the materials he reviewed involved highly personal matters including potential suicidal ideation and sexually-oriented discussions.

[40] Det. Erkkila testified that he had not, to his recollection, seen the Report to Justice describing this computer.

[41] Det. Erkkila’s initial search of the computer lasted for about a month. Det. Erkkila indicated that this part of the search dealt primarily with examining the Skype Chat Logs generated by the initial forensic search and making them presentable for disclosure. A subsequent search of the computer, in or around November of 2013, analyzed the computer’s data for evidence that the accused logged into the WiFi at specific McDonald’s and Tim Horton’s locations shortly after the murder. [3]

[42] In cross-examination by the Crown, Det. Erkkila was asked his rationale for his search methodology. He responded that his methodology was the least intrusive way of finding evidence in this investigation.

The Position of the Parties

Mr. Townsend

[43] Mr. Townsend had three areas of concern wherein he alleges that the police breached his s. 8 rights pursuant to the Charter:

1. The facial invalidity of the warrant. The police conflated the ITO with the warrant. A mere Locker Warrant does not comply with the Supreme Court’s decision in R. v. Vu. Simply put, the warrant did not permit data analysis.
2. The time constraints outlined on the warrant were not complied with. The search for data occurred after the warrant expired and, as such, the search is invalid.
3. There were no parameters for the search. Accordingly, the search was overly broad and therefore inappropriate.

[44] He also argued that the computer evidence should be excluded pursuant to s. 24(2) of the Charter. Mr. Townsend submitted that the officers’ testimony made clear that the SSMPS takes a strident and dismissive view of the need to comply with the Charter, and Vu in particular. I ought to infer from the evidence that the SSMPS has every intention of continuing their practice of using Locker Warrants to justify expansive searches such that any breach flowing from said searches must be seen as being systemic, flagrant and serious.

[45] The impact of said breach is significant in so far as the privacy rights of Mr. Townsend and those with whom he communicated were violated. These discussions included private entries centered around discussions of a sensitive nature. Accordingly, the impact of the breach is considerable.

[46] Finally, Mr. Townsend argued that society’s need to adduce the evidence is limited in so far as the police have other sources of evidence available to them to potentially prove that Mr. Townsend committed murder.

[47] Accordingly, Mr. Townsend submitted that the Skype Chat Logs and internet searches ought to be excluded from evidence.

The Crown

[48] The Crown argued that there is no Charter breach in the instant case. Locker Warrants are authorized by law and permit the police to search a computer for data. This is particularly the case where the “place to be searched” as contemplated by the warrant is the exhibit locker as opposed to the computer. This drafting decision can be contrasted with cases like R. v. Little, 2009 ONSC 41212 where the computer was specified as the place to be searched. Counsel submitted that drafting decisions have consequences. The decision to draft the warrant such that the “place to be searched” is the exhibit locker mandates that the search was properly authorized by the issuing justice.

[49] If a breach is found to have occurred, Crown counsel argued that the breach was not serious in so far as the search occurred prior to the Supreme Court of Canada releasing Vu. Further, the ITO sought authorization to search for communications which was the exact kind of evidence for which Det. Erkkila searched and subsequently located.

[50] Det. Erkkila’s search was both principled and focused such that the impact of any breach was negligible. Counsel submitted that the “skim then dive” approach to forensic data analysis provides substantial protection for the privacy rights of all concerned parties while giving police a reasonable ability to procure relevant evidence of the crimes being investigated.

[51] Society’s need to adduce this evidence is overwhelming given the highly probative nature of the evidence. Specifically, the evidence provides insight into Mr. Townsend’s mindset in the hours before and after he is alleged to have committed murder. Further, the Skype Chat Logs are the only evidence of Mr. Townsend’s alleged planning and deliberation such that, if the evidence were excluded, the prosecution of first-degree murder would effectively be gutted.

[52] Accordingly, if there is a breach, the Crown submits that the evidence should nonetheless be admitted into evidence.

The Law

Warrants

[53] Prior to examining computer searches, a brief discussion of warrants is of benefit. The face of the warrant is the document that empowers police to search a particular location for particular evidence: Re Times Square Book Store and the Queen, 1985 ONCA 170, 21 C.C.C. (3d) 503; R. v. Parent, 1989 YKCA 217, 47 C.C.C. (3d) 385; R. v. Ricciardi, 2017 ONSC 2788; R. v. Merritt, 2017 ONSC 80. The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence. However, the ITO is not part of the warrant that a searching officer is expected to examine. Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search. [4] As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant: R. v. Raferty, 2012 ONSC 703 at para 103.

[54] In Ricciardi, Di Luca J. reviewed the guiding principles dealing with search warrants, searches pursuant thereto, and judicial review thereof. At paragraphs 12 to 17, Di Luca J. reviewed the law regarding the issuing of search warrants. At paragraphs 18 to 20, he then reviewed the law as it applies to the role of the reviewing judge:

On a review, the role of reviewing judge is not substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant; see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONSC 285 and R. v. Morelli, supra, at para. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para 99:

A reviewing judge does not substitute his or her view for that of the justice who issues the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

The review is conducted based on the whole of the ITO using a common sense approach to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant; see R. v. Morelli at para 167, R. v. Lubell and the Queen (1973), 1983 ONSC 3587, 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Ngyuen, supra, at para. 58, R. v. Araujo, 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) and R. v. Persaud, 2016 ONSC 6815 at para. 64.

The excision exercise requires that any unlawfully obtained evidence be removed from consideration in assessing the sufficiency of grounds in an ITO, see R. v. Grant, 1993 SCC 68, 84 C.C.C. (3d) 173 (S.C.C.), R. v. Plant, 1993 SCC 70, 84 C.C.C. (3d) 203 (SCC) and R. v. Wiley, 1993 SCC 69, 84 C.C.C. (3d) 161 (SCC). While the continued validity of the automatic exclusion approach has been criticized, it remains the law; see R. v. Jasser, 2014 ONSC 6052 at paras. 26-34.

Computer Searches and Warrants

[55] Special interests are at play when the Courts examine the searches of computers. Computers carry immense vaults of personal and biographical information. The search of this information is, by definition, highly invasive. As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para 105:

As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

[56] Typically, the right to search a location also provides the police with the right to search the receptacles within that location. Unsurprisingly, given the heightened importance associated with the search of computers, the Supreme Court of Canada in Vu held that computers are different than other receptacles. The Court stated at paras 40 to 45:

It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer: Morelli, at para. 105; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 3. Computers are "a multi-faceted instrumentality without precedent in our society": A. D. Gold, "Applying Section 8 in the Digital World: Seizures and Searches", prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis added). Consider some of the distinctions between computers and other receptacles.

First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, 1993 SCC 70, [1993] 3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic. We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence" (2010), 12 Yale J.L. & Tech. 311 at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location. As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 2004 ONCA 9378, 69 O.R. (3d) 481, at para. 43.

Second, as the appellant and the intervener the Criminal Lawyers' Association (Ontario) point out, computers contain information that is automatically generated, often unbeknownst to the user. A computer is, as A.D. Gold put it, a "fastidious record keeper" (para. 6). Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it. Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, "Searches and Seizures in a Digital World" (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them.

Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users' knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.

Fourth, limiting the location of a search to "a building, receptacle or place" (s. 487(1) of the Code) is not a meaningful limitation with respect to computer searches. As I have discussed earlier, search warrants authorize the search for and seizure of things in a "building, receptacle or place" and "permit the search of receptacles such as a filing cabinets, within that place…. The physical presence of the receptacle upon the premises permits the search": Fontana and Keeshan, at p. 1181 (italics in original; underling added). Ordinarily, then, police will not have access to items that are not physically present in the building, receptacle or place for which a search has been authorized. While documents accessible in a filing cabinet are always at the same location as the filing cabinet, the same is not true of information that can be accessed through a computer. The intervener the Canadian Civil Liberties Association notes that, when connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized.

These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches.

[57] The Supreme Court of Canada then considered whether or not a properly authorized warrant to search required search parameters. In holding that search parameters were not constitutionally required, the Court stated at paras 53 and 54 of Vu:

The intervener the British Columbia Civil Liberties Association (“B.C.C.L.A.”) submits that, in addition to a requirement that searches of computers be specifically authorized by a warrant, this Court should also find that these warrants must, as a rule, set out detailed conditions, sometimes called "ex ante conditions" or "search protocols", under which the search may be carried out. According to the B.C.C.L.A., search protocols are necessary because they allow authorizing justices to limit the way in which police carry out their searches, protecting certain areas of a computer from the eyes of the investigators. The Crown and intervening Attorneys General oppose this sort of requirement, arguing that it is contrary to principle and impractical. While I am not convinced that these sorts of special directions should be rejected as a matter of principle, my view is that they are not, as a general rule, constitutionally required and that they would not have been required in this case.

While I propose, in effect, to treat computers in some respects as if they were a separate place of search necessitating distinct prior authorization, I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in every case, be necessary to properly strike the balance between privacy and effective law enforcement….

[58] However, the Court did indicate at paras 61 and 62 that parameters may be preferable in certain situations:

By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.

Although I do not find that a search protocol was required on the particular facts of this case, authorizing justices must assure themselves that the warrants they issue fulfil the objectives of prior authorization as established in Hunter. They also have the discretion to impose conditions to ensure that they do. If, for example, an authorizing justice were faced with confidential intellectual property or potentially privileged information, he or she might find it necessary and practical to impose limits on the manner in which a computer could be searched. In some cases, authorizing justices may find it practical to impose conditions when police first request authorization to search. In others, they might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have police return for an additional authorization to search the seized device. This second authorization might include directions concerning the manner of search. Moreover, I would not foreclose the possibility that our developing understanding of computer searches and changes in technology may make it appropriate to impose search protocols in a broader range of cases in the future. Without expressing any firm opinion on these points, it is conceivable that proceeding in this way may be appropriate in some circumstances.

[59] The Ontario Court of Appeal had considered the “license to scour” a computer described in Vu, in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241. In Jones, the police seized a computer and searched pursuant to a broadly worded warrant. In searching the computer, the police analyst discovered child pornography. The police relied upon the initial warrant to conduct a further search. The Crown argued on appeal that a computer was an indivisible item and that once police had authority to search the computer, the police could search the entire computer.

[60] Blair J.A., writing for the Court, rejected this argument and stated at paragraph 50:

The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user's privacy rights in other information stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.

Locker Warrants

[61] With this appellate authority as a backdrop, two issues arise pertaining to the computer searches. First, there appears to be no appellate authority governing the issuance of and reliance upon Locker Warrants. Second, there appear to be two diverging methodologies pertaining to when the search of the contents of the computer must occur.

Issuance of and reliance upon Locker Warrants

[62] The first issue addresses whether the face of a Locker Warrant must specify that the contents of the computer are also to be searched, or whether such a search is necessarily included in the authorization to search the exhibit locker.

[63] Some Courts have found that a warrant simply authorizing the police to search their exhibit locker is sufficient to pass Charter scrutiny. In R. v. Eddy, 2016 ABQB 42, 2016 D.T.C. 5032, Rooke A.C.J.Q.B. of the Alberta Court of Queen’s Bench relied upon Coroza J.’s decision in R. v. Nurse and Plummer, 2014 ONSC 1779 to state:

The Crown argued that, read together, the ITO and warrant make it very clear that the CRA investigators were looking for documentary evidence of Ms. Eddy's alleged PEG misconduct, in both 'hardcopy' and electronic forms, and cite R. v. Varty, 2015 SKQB 51 at paras 51-62 for the proposition that no second warrant is needed to search the contents of electronic storage devices when the ITO makes plain that forensic investigation of those resources for relevant data is part of the planned procedure. Similarly, the Crown noted that, in R. v. Nurse, 2014 ONSC 1779, Coroza J concluded, at paras 58, that a search warrant that authorizes search for sources that contain data implicitly and logically includes a search of the data stored as well. This means that an investigation of detained data sources is not a warrantless search: para 61.

Bluntly, Ms. Eddy's argument is entirely spurious. Unlike R. v. Vu, the CRA investigators entered into Ms. Eddy's residence fully prepared to look for electronic data relevant to her alleged illegal PEG activities. I agree with the analysis in R. v. Nurse that a search warrant that authorizes seizure of electronic data sources also necessarily permits investigation of their contents.

[64] It should be noted, however, that in Nurse, the face of the warrant had an attached schedule that outlined the electronic data to be sought by the police: para. 17.

[65] Contrarily, in Merritt, Dawson J. held that the police cannot simply rely upon a Locker Warrant enabling the police to take a computer out of an exhibit shed as lawful authority to then search the contents of said computer: paras. 208-217. In Ricciardi, DiLuca J. made a similar finding.

[66] It is important to note the recency of the decisions dealing with Locker Warrants. This is not a settled area of the law. There are no appellate decisions on point. As will be seen below, R. v. Barwell, 2013 ONCJ 409 can be interpreted as authority for the proposition that a Locker Warrant may provide some legal foundation for conducting a data search on a computer.

Timing of the Search

[67] The second issue addresses what actions must take place during the time period specified on the face of a warrant.

[68] In Little, Fuerst J. was confronted with a situation whereby the police searched a computer for its contents. The warrant authorizing the search specified that the computer was the place to be searched. The warrant also indicated that the search was to occur within a certain time period. The police took the computer from their exhibit shed and failed to undertake the search during the time specified on the face of the warrant.

[69] Fuerst J. found that this failure to comply with the time periods specified constituted a Charter breach at paragraphs 160 to 162 of her decision:

Other officers either did not see the warrant, or failed to take note of the time frame specified in it.

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 a 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.

The police obtained lawful possession of the computer by way of the consent of its owner, Mr. Luong. He specifically did not consent to examination of its contents without a search warrant. The only authorization for the search was the warrant. Once it expired, the police were not authorized by law to search the computer's contents.

[70] I pause to note that the accused in Little was convicted of murder. The conviction was upheld on appeal: R. v. Little, 2014 ONCA 339. The argument at the appellate level appeared to centre on Fuerst J.’s s. 24(2) Charter analysis, as opposed to her actual Charter ruling.

[71] Paciocco J. (as he then was), however, may have taken a different view of the issue. At paragraphs 17 and 18 of Barwell, Paciocco J. effectively held that the face of the warrant empowering the police to search a computer referred to the time where the police take possession of the computer for the purpose of said search. [5] He found that the timing of the data search was potentially governed by other sections of the Criminal Code of Canada, namely the mandates of section 490 wherein police are to provide a Report to Justice upon seizing and retaining items:

The hard drives that were the subject of the search warrant had already been seized and were being retained as contraband at the police lock-up on Swansea Road, having been seized on the 5th of April, 2011, by Constable O'Connor. Detective Pelletier knew enough not to assume that this authorized the search of the computers themselves. He appropriately sought a search warrant before proceeding further. On April the 18th, 2011, he obtained a warrant authorizing the search and seizure of the computer hard drives from the Swansea Road lock-up. While the police possessed the hard drives already, this judicial authorization would serve to convert their holding from a simple seizure of alleged contraband to an authorized power to seize the hard drives and search them for evidence. This search warrant authorized Detective Michael Pelletier to, "Between the hours of 6:00 a.m. to 9:00 p.m., to enter and search for" the computer hard drives "and to bring them before me or some other Justice to be dealt with according to law." On that day, Constable Pelletier removed the computer from the secure facility and delivered it to Detective Thompson for analysis. Detective Thompson recorded the serial number "information, thereby commencing his forensic examination within the time period set out in the warrant. Detective Thompson was occupied that day with other matters and did not get around to creating and examining the cloned, versions of the hard drive, until the next day, April the 19th, 2011. Mr. Reesink therefore argues that the search of the computer continued outside the search period provided for in the warrant. His position is that this examination had to be completed within the 15 hour window set out in the warrant, and therein lies the breach. In my view, the search and seizure authorized by this warrant occurred properly when Detective Pelletier assumed control over the computer hard drives from the Ottawa Police Service's Evidence Control lock-up at 2799 Swansea Road within the period specified for that search and seizure. It was not required by the warrant that the forensic examination would take place during that same brief window. The time limits under the search warrant were not, therefore, dishonoured by Detective Thompson when he commenced the forensic search the next day. First, consider the implications of the argument that a forensic search of a seized chattel must be undertaken within the search period specified on the face of the warrant. Imagine, for the sake of the exercise, that the computer had been at Mr. Barwell's home, and that the warrant authorized the search and seizure to occur there. In order to minimize the intrusion Mr. Barwell's private dwelling, the warrant period would necessarily have been brief, to minimize the control the police could exercise over Mr. Barwell's home. The law would have required it, and so the search period on the face of the warrant would have been brief. Would the law, nonetheless require, in such circumstances, that any forensic examination of the computer would have to occur within that same brief search window on the face of the warrant? This would be unrealistic. Forensic examinations take time, and it would be counter-productive to the privacy interest to extend search and seizure periods for long periods of time in order to accommodate forensic examinations.

The flaw in this Charter challenge is that it fails to recognize that the law treats the initial search and seizure and subsequent forensic examinations separately. There are provisions authorizing the initial search and seizure of the item, such as Section 487 of the Criminal Code of Canada, relied upon to secure the warrant in this case. There are other separate and distinct provisions dealing with the detention of items, including detention "for the purposes of any investigation." Specifically, Sections 489(1) and 490 of the Criminal Code of Canada together require that when things have been seized pursuant to a warrant, the police officer shall, as soon as practicable, either bring the seized items before a Justice or file a report identifying the thing being detained and the reason for detention. And the Justice shall order that the thing be released or detained, including for the purposes of investigation. In other words, the search warrant provision deals with the time required for the initial search for an item and with its seizure. The detention provisions address how long the item can be kept for forensic analysis after the search is made for the item and it is seized. In my view, if there's a relevant breach that occurred here, it would have occurred if Detective Pelletier had failed to bring the items seized or a report before a Justice to be dealt with according to law and secure authority to detain the hard drives for forensic examination. This is not the challenge that was brought by Mr. Barwell, and I have no evidence before me, one way or another, on whether a proper seizure return was filed. The onus, of course,' is on the Charter applicant to allege and then prove a relevant Charter violation. This has not happened relating to the improper detention and subsequent search of the item secured by warrant. No violation arising out of the next day forensic examination by Detective Pelletier has therefore been established before me and this Charter challenge is rejected. [emphasis added]

[72] Thus, Paciocco J.’s logic supports the view that Locker Warrant gives the police adequate authority to search a computer’s data provided that the Report to Justice enables the reviewing justice to adequately gauge the appropriateness of the forensic data analysis as well as the time needed therefor.

24(2) Remedy

[73] The Supreme Court of Canada revisited the test for exclusion of evidence under s. 24(2) of the Charter in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. In Grant, the Court determined that three distinct factors had to be balanced in weighing the exclusion of evidence:

1. The seriousness of the Charter breach
2. The impact of the breach upon the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.

[74] When looking at s. 24(2) of the Charter as it relates to computer searches, it is useful to remember Fish J.’s statement in Morelli at paras. 2 and 3:

It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer.

First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generally by design, but sometimes by accident.

[75] Accordingly, the first two factors in Grant must be viewed through the Morelli lens. Courts must cast a concerned eye towards non-Charter compliant computer searches since said searches can access one’s most personal and biographical information.

[76] With that said, however, there are instances where the importance of the first two Grant factors are mitigated. In respect to the first branch of Grant, the Courts have found that mere technical breaches are not overly serious in the context of computer searches: R. v. Sonne, 2012 ONSC 1463, 110 O.R. (3d) 209. The lessened seriousness of computer-related Charter breaches is especially noteworthy in cases where the law is unsettled: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34. However, it must also be noted that good-faith over-searching is “somewhat serious”: Jones.

[77] With respect to the second branch of Grant, the Courts are concerned with “the extent to which the breach actually undermined the interests protected by the right infringed”: para 76. In other words, the impact of a Charter breach in computer searches relates directly to the breach itself. In cases where the discoverability of the evidence was inevitable had the law been clear and had the police complied with said law, the impact will be on the lighter end of the spectrum: Cole, at para. 97.

[78] With respect to the third prong of Grant, the Supreme Court stated at paragraphs 81 to 84:

This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": Mann, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 2002 ONCA 45000, 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[79] The Supreme Court of Canada summarized the Grant analysis at paragraphs 85 and 86 of the judgment:

To review, the three lines of inquiry identified above -- the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits -- reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

Analysis

The Search

[80] Until an appellate court determines whether forensic data analysis are to be governed by the Little methodology or the Barwell methodology, reviewing courts must be guided by first principles. Accordingly, it seems to me that it doesn’t matter which methodology is used provided the judicial authorization enabling forensic data analysis provides adequate a fiori guidance to police officers undertaking the data search. Police officers would seemingly need to know the nature of the data sought, the crime being investigated, the time frame for analysis and, potentially, the search areas to be avoided. In this way, an issuing justice (whether on a face of warrant, on a schedule attached thereto or in a Report to Justice) can explicitly strike the appropriate balances as described in Vu. A police officer, then, will be able to review the judicial authorization and understand the nature of the search she/he is to undertake.

[81] In the case before me, the warrant simply did not give sufficient information to satisfy the “fellow officer” test. As noted above, it appears from the authorities that an officer conducting a search is to be guided by the face of the warrant, and not the ITO. Looking at the face of the warrant, in this case, it was unclear as to whether or not a technical search of communications, photos, internet searches or other data was authorized. Det. Erkkila had no way of determining what the issuing justice considered relevant from the face of the warrant. As such, the warrant did not comply with the view set out in Little, Ricciardi and Merritt that the face of the warrant must guide the officer’s search.

[82] The warrant also did not have an attached schedule specifying that which was sought. As such, the warrant in question did not fall within the parameters found acceptable in Nurse.

[83] The Report to Justice did not describe the nature of the evidence sought from the forensic analysis. The instant search thus did not comply with the proposed methodology described in Barwell.

[84] Accordingly, the instant search of Mr. Townsend’s computers breached the accused’s Charter rights in so far as the judicial authorizations did not outline to Det. Erkkila the data to be searched for. Det. Erkkila could not know from the warrant or the Report to Justice that the ITO only authorized a search for communications, and not for photographs. It is also unsurprising, therefore, that Det. Erkkila’s search went beyond simple communications and progressed to photos and videos given the state’s perpetual need to prove identity in any prosecution.

[85] However, I do not wish this ruling to be used as authority that all judicial authorities must explicitly specify the nature of the data to be searched upon the computer. For example, I can conceive of instances where police execute a Locker Warrant to seize a computer to search for evidence of child pornography. In such an instance, there are common sense arguments to be made that searches of photos on the computer are self-evident from the nature of the investigation. That, however, is not the case before me.

[86] Secondly, and flowing from the analysis described above, I am not aware of any appellate authority that has decided the issue of whether or not the time period specified on the face of the warrant deals with the time contemplated for the search of the computer (as defence would suggest based on Little) or simply the time wherein the police must seize the computer from themselves (as per the Crown based upon Barwell).

[87] The warrant in this case specified that the search was to occur within a narrow time window. The actual data search occurred much later than the time specified in the warrant. If the analysis in Barwell is to be accepted, then the s. 490 procedure could have been used to describe to an issuing justice the time needed to undertake the data analysis. That was not done. Accordingly, there was no judicial vetting of the time frame required for the search of Mr. Townsend’s computer beyond the time described on the face of the warrant. Failure to comply with either the methodology described in Little or that in Barwell mandates that the police did not conduct their computer search within any judicially-authorized time frame and they are thus not in compliance with s. 8 of the Charter.

[88] As a result of the foregoing, Mr. Townsend’s s. 8 rights pursuant to the Charter were breached by Det. Erkkila’s search of the computer.

Exclusion of Evidence

[89] For the reasons that follow, I find that the evidence in question ought not be excluded from the trial.

Seriousness of Breach

[90] As regards the seriousness of the breach, I consider the following. First, the defence did not argue that the ITO contained insufficient grounds to conduct a search for communications or photographs. I will not, therefore, spend much time discussing same save to indicate that the search for communications and internet searches was properly authorized. Accordingly, had the police described the nature of the evidence sought on the face of the warrant (or in an attached schedule) or on a Report to Justice, they would have complied with the Charter since a fellow officer would have known that she/he would be looking for the communications described within the ITO. The breach flowing from this fact, therefore, is purely technical and not substantive.

[91] Second, the same can be said of the timing concern described in Little or Barwell. I cannot imagine that a reviewing justice would reject a request by the police to analyze the data in a timeframe of 2 or 3 months given the time concerns described in the ITO. As was indicated in both Det. Erkkila’s evidence and the ITO, data analysis can be time consuming given the expansive nature of hard drives and possible difficulties associated with passwords, encryption and the like. The failure to adhere to time constraints described on the face of the warrant is, therefore, a minor breach.

[92] Third, the police acted in good faith. Counsel for Mr. Townsend argued that the answers provided by Det. Erkkila and S/Sgt. Armstrong were defensive. I therefore ought to be concerned that the officers’ attitude betrayed a situation whereby the SSMPS would stand by its position that a Locker Warrant was sufficient to enable the police to search the contents of a computer, irrespective of Court rulings and the like. She indicated that the police officers’ testimony made clear that this was effectively a systemic pattern of abuse whereby the SSMPS would ignore Court decisions and proceed as it so chose.

[93] I disagree with the defence position regarding the officers’ evidence. The law as it relates to Locker Warrants is not yet settled. There is no suggestion that the officers believed that what they were doing was, in fact, unconstitutional. The officers were pressed on their view that the warrant entitled them to search the computer for data. Defence was correct in pushing them. The officers held firm in their views. They were entitled so to do.

[94] There was nothing in the officers’ evidence to suggest that the officers were disingenuous in their belief that they were entitled to search computers on the basis of a Locker Warrant. Further, nothing in the officers’ evidence indicated that the SSMPS would persist in committing unconstitutional searches. Nothing in the evidence suggested that, upon becoming aware of a ruling, the SSMPS officers in question would not attempt to abide by same in future.

[95] The police attempted to comply with the law as they understood it to be. The law was, and continues to be like, unsettled. I note that this search occurred prior to the release of Vu. As such, the principles governing computer searches were not yet clear, let alone the application of those principles to Locker Warrants. This is not, therefore, a systemic breach or a situation where the police are attempting to disregard the law.

[96] Fourth, the manner in which the communications search was conducted was both principled and disciplined. Det. Erkkila testified that the software used searched all aspects of the hard-drive for certain key words. He rightly conceded that this was both a broad and expansive search. However, given the nature of the gate keeper function performed by the software, the police only looked at those files that contained the impugned key words. The first file reviewed contained highly probative evidence. Det. Erkkila did not, therefore, “scour” the hard drive. The nature of the software used by Det. Erkkila to search the hard drive complies with the statement made by Blair J.A. in Jones wherein the he indicated:

Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be. [emphasis added]

[97] Fifth, the oversearch by Det. Erkkila consisted of looking at approximately 150 to 200 photos. This is not the kind of invasive search that causes me tremendous concern. Det. Erkkila genuinely believed, based on all the evidence, that he was authorized to look for photographs and videos. The officer’s evidence did not suggest that he “scoured” through bank records, or looked at documents that plainly would have had no connection to the offence. He only looked at data that could potentially be related to the homicide. While neither the Locker Warrant nor the ITO contemplated a search of pictures, given the fact that identity is always an element to be proven in criminal offences [6], the search of the computer’s photos and videos makes considerable sense despite the fact that it does not appear to be the kind of search that is “self-evident” as I previously described. [7]

[98] As a result of the foregoing, I find that the seriousness of the breach, while not de minimis, falls at the lower- to mid- end of the “seriousness” range.

Impact of the Breach

[99] The impact of the instant breach is relatively minor. Firstly, the ITO provided sufficient grounds (as was effectively conceded by counsel) to support a search of the hard drive for communications related to the homicide. Accordingly, the fact that the face of the warrant did not specify that the computer was to be searched for communications has negligible impact since a simple change to the face of the warrant (i.e. specifying the search for communications) would have rectified any Charter deficiency in that regard.

[100] The impact of Det. Erkkila’s oversearch is also of relatively minor impact. A search of 150 or 200 photographs is not the kind of expansive search that the court was faced with in, for example, Little where the police looked at numerous files that were unrelated to the case and presumably covered a wide variety of biographical material. Given the fact that the police had grounds to examine the computer for communications and, given the need to prove identity, the police also had grounds to search the computer for pictures and videos based upon the contents of the ITO [8]. I note that the search of photographs yielded no evidence.

[101] Further, Det. Erkkila’s search was undertaken in a principled and narrow fashion. As noted earlier, the method of search used by Det. Erkkila was previously described approvingly by Blair J.A. in Jones. The initial search yielded a number of files that were directly related to the homicide investigation. These files were immediately reviewed by Det. Erkkila who did not go beyond the scope of the relevant files (with the exception of the photo/video search). Such a search is in accordance with the principles outlined in Vu whereby the courts are concerned that police officers not wantonly intrude into the personal lives of individuals. Instead, Vu contemplates that the police ought to conduct their searches with respect for the expansive vault of personal information contained in a computer. Det. Erkkila appears to have done exactly that.

[102] This is also not a case where search parameters were necessary. As described previously in Vu, there were no issues with intellectual property or the like that would necessitate judicially sanctioned search parameters.

[103] Thus, the impact of the Charter breach is relatively minor since the ITO contained sufficient grounds to justify the search of the hard drive for communications, the communications search was undertaken in a manner that satisfied the mandates of Vu, and any oversearch by Det. Erkkila (the search of the photographs) was a minor intrusion into an area where defence did not argue that grounds for judicial authorization failed to existed.

Society’s Interest In Adjudication

[104] This factor is worthy of considerable weight.

[105] First, the evidence is essential to the prosecution. In fact, it appears to be the only evidence capable of supporting a conviction for first-degree murder. Accordingly, without the admission of the Skype Chats Logs, the prosecution for first-degree murder would be “gutted”, as per Grant.

[106] Secondly, the evidence is highly probative and reliable. The Skype Chat Logs reveal the accused’s state of mind in the hours leading up to the killing and in the hours immediately thereafter. It is trite to note that the difference between murder and manslaughter has to do with the state of mind of the accused. As a result, Skype Chat Logs wherein an accused describes his intent to kill the victim (prior to the killing) as well as Skype Chat Logs that indicate that the accused did not have time to clean up the crime (shortly after the killing) are powerful pieces of evidence whose reliability and probative value are exceptionally high.

[107] As a result of these two points, it cannot be said that society has anything other than a very high interest in ensuring that the instant evidence is adduced.

The Final Analysis

[108] When I look at all three Grant factors together, it is apparent to me that the evidence needs to be admitted. The breach was not particularly serious and its impact, in the circumstances of this case, was quite limited.

[109] On the other hand, society’s need to adjudicate the case at hand is exceptionally high as the Skype Chat Log evidence is highly relevant, highly probative, very reliable and entirely necessary to the prosecution of first degree murder.

[110] Were I to exclude the evidence, the administration of justice would be brought into disrepute given the relatively minor concerns associated with the first two prongs of Grant as compared to the society’s strong need to adjudicate the matter.

Conclusion

[111] For the foregoing reasons, I find that the Skype Chat Logs were discovered as a result of a Charter breach but that a fulsome s. 24(2) Charter analysis as per Grant demands that the evidence not be excluded.

Varpio, J.

Released: June 2, 2017

Footnotes

[1] All times are those time displayed on the video.

[2] A review of the entire evidence causes me to find that the search happened over the weekend of August 23-25, 2013.

[3] Video evidence suggests that the accused typed some of his portion of Skype Chat Logs at those locations.

[4] This distinction makes good sense in, for example, situations where police have search warrants to search dangerous areas. The police would likely only look at the face warrant to get their guidance given time constraints.

[5] I note that Barwell was released prior to Vu. I do not believe, however, that Paciocco J.’s statements reproduced below offend the principles described in Vu.

[6] It is clear that pictures of the accused and victim together could easily provide relevant evidence proving the identity of a murderer.

[7] i.e. Searching through photos in a Child Pornography case as I described in paragraph 85.

[8] It should be noted that it was not argued by the defence that grounds to search the photos/videos did not exist.