Court File and Parties

COURT FILE NO.: 14-C-1835-00-00 DATE: 2017/06/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen AND Mathieu Pahle

BEFORE: Justice A. Doyle

COUNSEL: Monica M.C. Heine, Counsel for the Crown James Harbic, Counsel for Mathieu Pahle

HEARD: June 26, 2017

Endorsement

[1] The Applicant, Mathieu Pahle is charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”).

[2] The Applicant brings a motion for leave to cross-examine the affiant of the Information to Obtain (ITO) a search warrant under s. 487 of the Code allowing the police to execute a search warrant on 334 Ellen Ave., Cornwall, Ontario. He wishes to cross-examine the affiant, Detective Constable Anderson (“D/Cst Anderson”) on the following specific areas:

(1) contrary to s. 489.1(1) of the Code, which requires the officer to report to the issuing Justice “as soon as Practicable” in respect of property seized under a search warrant, the report to Justice in relation to the property seized on September 19, 2014 was only made on July 31, 2015, (over 10 months later);

(2) the Warrant to Search used language to permit the police to search for evidence of “suspected commission or intended commission” which did not conform to the language found in the ITO which stated as follows “searching for evidence with respect to the commission of an offence”;

(3) the ITO states that on October 22nd, 2010, the affiant received a complaint from the National Center for Missing and Exploited Children (NCMEC) that they had received information from Google regarding the uploading of child pornography. He included in his affidavit a response from Dr. Peter Collins, from the Criminal Behaviour Analysis Unit of the OPP, an expert in sexually deviant behaviour with regards to an offender maintaining a collection of images over time. Dr. Collins is quoted as saying: “if law enforcement has evidence that an offender had a collection 5 to 10 years ago, chances are he still has the collection now – only it is larger”. At the preliminary inquiry D/Cst. Anderson agreed that the October 22nd, 2010 listed in the ITO was incorrect and the correct date was March 7th, 2014.

[3] The Crown opposes the application on the following grounds:

• the Applicant has already cross-examined the affiant at the preliminary hearing (a “Dawson” application);
• the evidence is available in the transcript of the preliminary hearing;
• based on the previous cross-examination of the affiant there is no basis upon which to exclude, redact or amplify the ITO;
• the 2010 date was clearly a typing error and given that the date is four years prior, the issuing Justice could not have been misled as it is corrected two paragraphs later and on the same page;
• what occurs after the warrant is executed is not relevant to the issue to be determined at this motion; and
• the affiant did not intend to mislead in using the wrong form for the warrant to search. Part of the warrant could be expunged or redacted and it would still stand.

[4] The issue is whether leave should be granted to enable the Applicant to make full answer and defence. Has the Applicant demonstrated that the cross-examination of the affiant will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization of the search warrant, e.g. reasonable and probable grounds?

[5] For the reasons that follow, the Applicant is granted leave to cross-examine the affiant on #2 and #3 above.

Facts

[6] The uncontested facts are as follows. On September 17, 2014, in support of a s. 487 application, D/Cst Anderson swore an ITO and was granted judicial authorization to execute a warrant to search at the residence of the Applicant.

[7] Pursuant to the execution of the warrant to on September 19, 2014, child pornography was located on a laptop computer and two small memory cards. The Applicant was charged.

[8] On November 12, 2014, at the preliminary inquiry, D/Cst. Anderson was called as the only witness. The Court permitted the Applicant to cross-examine the Affiant at the Preliminary Inquiry (a “Dawson” application).

[9] Counsel for the Applicant cross-examined the affiant in the following areas:

• his statement “during my investigation into this matter, I have read police reports, occurrences, statements of witnesses and police officers”;
• his reference to another motor vehicle was observed in the driveway;
• the law enforcement request sent to Cogeco Cable Inc. in order to obtain the subscriber information, to which Cogeco responded;
• the ITO was sworn prior to R. v. Spencer, 2014 SCC 43, [2014] 2 SCR 212 being released;
• uploading of information from an email address of Tim McGee; and
• other IP addresses are mentioned but only one was disclosed in the ITO.

The Law

[10] In R. v. Garofoli (1990), 60 C.C.C. (3d) 161, the Supreme Court of Canada established the test for granting leave to an Applicant to cross-examine a wiretap affiant. The Supreme Court rejected the preconditions set out in the United States Supreme Court in Franks v. Delaware 438 U.S. 154 (1978) which were to prove specific allegations of deliberate falsehood or reckless disregard for the trust, and prima facie proof by the applicant of the substances of what was alleged to controvert the specific contents of the affidavit and demonstrate that the remainder of the affidavit would be insufficient to sustain the issuance of the wiretap authorization, once the offensive portions were set aside.

[11] Instead, the Court stated that leave is in the discretion of the trial Judge. Leave should be granted when the trial Judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example reasonable and probable grounds.

[12] The accused is not required to make out a prima facie case of fraud, misleading disclosure or material non-disclosure. However, leave is not an absolute right. R. v. Sadikov, 2014 ONCA 72, 2014 O.J. No. 376 (ONCA).

[13] A warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance. R. v. Campbell, 2010 ONCA 558.

[14] The Crown states that even if leave were again granted at this stage, the transcript demonstrates that there is no reason to doubt that the authorization would have been granted and the test is clearly not met. R. v. Garofoli at para. 89.

[15] In R. v. Williams, the Ontario Court of Appeal, stated that “the examination of an affiant whose affidavit has been used to obtain a wiretap authorization is not a stringent one”.

[16] When cross-examination is permitted, cross-examination should be confined to questions directed to the issue for consideration by the Court. R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.

[17] With respect to prolixity, reasonable limitations may be placed on the cross-examination. R. v Garofoli at para. 88.

[18] The ability to make full answer and defence means that the cross-examination is relevant to a material issue. It is a test about relevancy to a material issue; R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.

[19] In Pires: at para. 40, Justice Charron stated:

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous — it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

Analysis

Issue # 1: Report to the Justice:

[20] The Applicant alleges that the officer did not report to the Justice “as soon as practicable” in respect of the property seized under the search warrant and hence he contravened the provisions of the Code.

[21] In R. v. Adam Kramshoj, 2017 ONSC 2951, the officer did not file the report to the Justice until 6 months after the issuance of the warrant. Justice Healey was dealing with a blended s. 8 Charter motion and trial, following a Garofoli Charter motion to quash the warrant.

[22] The Court refers to R. v. Garcia-Machado, 2015 ONCA 569, in which there was a failure to file the report to Justice under s. 489.1(1) until 15 weeks after the seizure and it was found to result in a breach of the accused s. 8 rights.

[23] In Kramshoj, Justice Healey found that this was not deliberate but rather an oversight. She reviewed his evidence and found 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.”

[24] How does cross-examination of the affiant allow the Applicant to elicit testimony tending to discredit the existence of the pre-conditions to the authorization, e.g. reasonable and probable grounds?

[25] In my view, what occurs after the warrant was issued does not have a bearing on the issue I have to decide, i.e. whether the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization of the search warrant, e.g. reasonable and probable grounds.

[26] Therefore, the Applicant has not satisfied the onus to cross-examine on this area.

Issue # 2: Search warrant was invalid on its face due to a “Branton error”

[27] The warrant to search as drafted permitted the police to seek “…evidence in respect to the commission, suspected commission or intended commission of an offence against the Criminal Code.” In contrast, the ITO stated that he “has reasonable and probable grounds to believe and does believe that there is in a certain building, receptacle or place….which there is reasonable ground to believe will afford evidence with respect to the commission of an offence against the Criminal Code. This error is referred to as the “Branton error” after the decision of R. v. Branton, 53 O.R. (3d) 737 (C.A.).

[28] The old form was being used by police officers even when it had been replaced by a new form years earlier.

[29] In R. v. Adam Kramshoj, Justice Healey, was also dealing with the validity of the warrant to search and the fact that the old form continued to be used by the officers. The Court considered this to be a very serious breach that leaned towards exclusion of the evidence.

[30] The motion before me is a request for leave to cross-examine. At this stage, there is no s. 8 Charter application to exclude evidence.

[31] However, it is clear that the wrong Warrant to Search form was used.

[32] Certainly this deals with the process of obtaining the warrant and what was before the issuing Justice when the warrant was signed. I will permit the cross-examination on this issue as it will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization of the search warrant, e.g. reasonable and probable grounds.

Issue # 3 Date of complaint October 22, 2010

[33] D/Cst. Anderson’s affidavit is set out in Appendix C to the ITO. It is relevant to set out the particulars in Overview:

• C1: On the 22nd of October 2010 the National Center for Missing and Exploited Children (NCMEC) forwarded a complaint they received from Google Inc. to the National Child Exploitation Coordination Centre (NCECC). The report outlined that a subject using the e-mail address timmccgee@gmail.com had uploaded images of child pornography.

[34] At paragraph 10 he stated that:

• I asked Dr. Collins if the offender would be likely to maintain a collection of images over time. His response is as follows:

For many individuals, the collection of paedophilic images is constant. The collection may be culled and refined, over time, but generally the size of the collection tends to increase. There is never an end point to the collection. …

[35] There is no other mention of a year other than 2014 with respect to this matter except the opening paragraph (dealing with the year when the affiant joined the police force). As stated above, the correct date was the 7th day of March 2014.

[36] If cross-examination shows that some assertions made in the ITO are false or misleading, then that information may be excised. The information in the ITO need not be false to be misleading. A person swearing an ITO has a duty “to fully and frankly disclose material facts” see R. v. Morelli, 2010 SCC 8.

[37] The fact that false or misleading evidence has been included in an ITO does not automatically mean that the warrant is invalid. It will mean that there may be a re-evaluation of whether the warrant could have been issued, on the same basis as the initial evaluation. That is, the question of “whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant”. R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 53, citing R. v. Monroe (1997), 8 C.R. (5th) 324 (B.C.C.A.), at p. 333.

[38] It is also possible for the Crown to present “amplification” evidence, to correct minor errors in the ITO which arose in good faith, but not if there have been attempts to mislead the authorizing justice.

[39] Will the cross-examination allow the Applicant to undermine the validity of the information to obtain the warrant? Will it allow the court to consider the impact of the errors in the ITO?

[40] The use of the year 2010, could have impacted on the issuing Justice when the search warrant was signed. This coupled with the reference to Dr. Collins’ information regarding collection of images over time, could have lead the issuing Justice with the wrong impression. The use of a time period of 4 years before the ITO, may suggest that the uploading of pornography was a long standing process. Rather the ITO alleges two uploaded pornographic images found in 2014 in the laptop computer seized pursuant to the Warrant to Search.

[41] The use of the date of October 22, 2010 was briefly explored at the preliminary inquiry, at which time the officer stated that it was a typo and that the correct date was March 7, 2014 and he is not sure where the October 22, 2010 came from.

[42] I am satisfied that the Applicant has met the onus to cross examine on this issue. This will allow the Applicant to explore what was not covered at the preliminary inquiry.

[43] Regarding the issue of prolixity, I am limiting the cross-examinations to two areas of concern in the ITO.

Conclusion:

[44] The Applicant may cross-examine the affiant at a time and place as arranged by the Applicant and the Crown on the following two areas:

• the Warrant to Search used language to permit the police to search for evidence of “suspected commission or intended commission” which did not conform with the language found in the ITO which stated as follows “searching for evidence with respect to the commission of an offence”; and
• the ITO states that on October 22nd, 2010, the affiant received a complaint from the National Center for Missing and Exploited Children (NCMEC) forwarded from Google regarding the uploading of child pornography. He included in his affidavit a response from Dr. Peter Collins, from the Criminal Behaviour Analysis Unit of the OPP, an expert in sexually deviant behaviour with regards to an offender maintaining a collection of images over time. Dr. Collins is quoted as saying: “if law enforcement has evidence that an offender had a collection 5 to 10 years ago, chances are he still has the collection now – only it is larger”. At the preliminary inquiry D/Cst. Anderson “Agreed that the October 22nd, 2010 listed in the affidavit was incorrect and the correct date was March 7th, 2014”.

Justice A. Doyle Released: 2017/06/28