R. v. Allen, 2017 ONSC 972

R. v. Allen, 2017 ONSC 972

CITATION: R. v. Allen, 2017 ONSC 972 COURT FILE NO.: CR-0152 DATE: 20170209

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

GARY PHILLIP ALLEN Respondent

COUNSEL: K. Hull, for the Applicant J. Sickinger, for the Respondent

HEARD: January 30, 31, February 1, 2, 3 and 6, 2017

REASONS FOR DECISION RE: VOLUNTARINESS/CHARTER SECTIONS 8, 9, 10(b) and 24(2) APPLICATIONS

DiTOMASO J.

INTRODUCTION

1Gary Phillip Allen has been charged with four counts under s. 172.1(1)(b) of the Criminal Code of Canada (child luring). The designated offences that Mr. Allen is alleged to have facilitated are making child pornography, invitation to sexual touching, sexual interference and sexual assault.

2Mr. Allen has also been charged with one count of making sexually explicit images available to a child, pursuant to s. 171.1(1)(b) of the Criminal Code.

THE APPLICATIONS

3There are two Applications before the court. The first Application brought by the Crown is the “Voluntariness” Application. The Crown seeks the admission of Mr. Allen’s videotaped statement to D. C. Wohlert on June 11, 2014. The Crown seeks an order declaring the statement provided by Mr. Allen to persons in authority as admissible in evidence against him at his trial.

4The second Application is brought by Mr. Allen for an order pursuant to ss. 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (The Charter) excluding all of the evidence gathered in relation to violations of Mr. Allen’s rights.

5The Applications proceeded by way of blended Voir Dire. On the blended Voir Dire, the Crown called viva voce evidence from the following police officers:

(a) P. C. Veronica Sloan ( Ontario Provincial Police) (b) Sergeant Leah Thomas (South Simcoe Police Service) (c) D. C. Holly Murray (South Simcoe Police Service) (d) P. C. Nicole Kostiuk (South Simcoe Police Service) (e) D. C. Cameron Shields (South Simcoe Police Service) (f) P. C. Christopher Batemen (Ontario Provincial Police) (g) S. P. C. Daniel Bingham (Ontario Provincial Police) (h) D. C. Brian McDermott (Ontario Provincial Police) (i) D. C. Kip Wohlert (Ontario Provincial Police) (j) Inessa Pesenko (Agreed Statement of Facts)(Ontario Provincial Police)

Mr. Allen also gave viva voce evidence on the Voluntariness Application.

6Also, in support of the Applications, the parties relied upon the following:

(1) The videotaped statement and transcript. (2) The Information to Obtain prepared by D. C. Wohlert prepared on June 11, 2014. (3) The Telewarrant to search issued on June 11, 2014. (4) The Report to a Justice, dated June 19, 2014 together with order of disposition of items seized dated June 19, 2014. (5) OPP Property Report. (6) Other items made exhibits on the Voir Dire.

THE VOLUNTARINESS APPLICATION

Overview

7The charges before the court are four counts of child luring, and one count of making sexually explicit material available for a child. The Crown alleges that Mr. Allen committed these offences in respect of a person whom he believed to be a fourteen year old girl at the time.

8The background leading to the taking of the videotaped statement is as follows:

• On April 16, 2014, D. C. Kip Wohlert, an officer assigned to internet child exploitation investigations with the Ontario Provincial Police, was reviewing a website called Craigslist. D.C. Wohlert was in a section where users post advertisements soliciting sexual encounters. He was aware from prior investigations that Craigslist is used for the facilitation of child sexual offences.
• He saw an advertisement looking for a “young woman” “prefer under 110 lbs.” D.C. Wohlert initiated a conversation with the as-yet unknown user who had posted the ad. D.C. Wohlert presented himself as a 14 year old girl named “Jenny” from Innisfil. The user who posted the advertisement introduced himself as “Garry”. In the course of the conversations over two months, “Garry” requested photographs of “Jenny” to confirm that she was in fact female. D.C. Wohlert asked petite female OPP officers to provide casually dressed photographs without showing their faces. He sent these on to “Garry”. One of the two female officers who provided a photograph was D.C. Veronica Sloan.
• By June, the messages from “Garry” had escalated to sexually explicit discussions, including sending “Jenny” links to two pornographic websites (“Badjojo” and “Redtube”) and talk of masturbation.
• From June 2, 2014, to June 10, 2014, D. C. Wohlert worked with an agent of U.S. Homeland Security to get Craigslist records from the United States about the “Garry” account. Ultimately through Craigslist and information from Bell Canada, D.C. Wohlert obtained the customer data as Gary Philip Allen of 101 Compton Crescent, Bradford.
• Police obtained judicial authorization to search at 101 Compton Crescent. On June 11, 2014, several officers from the Ontario Provincial Police and South Simcoe Police Service attended that address. Gary Allen’s wife answered. Also in the home were Gary Allen and his infant granddaughter.
• D.C. Wohlert showed the warrant to Gary Allen. Detective Constable now Sgt. Leah Thomas with the South Simcoe Police Service then explained the warrant to Gary Allen. D.C. Thomas then arrested Gary Allen for three counts of luring, and one count of making sexually explicit material available to a person under 16 years of age.
• D.C. Thomas then read rights to counsel. Gary Allen said he understood. He requested duty counsel. D.C. Thomas cautioned him. He said he understood. D.C. Thomas read a secondary caution. He said he understood.
• Gary Allen asked Sergeant Thomas to join him on the back deck of the house. He asked what was going to happen, and D.C. Thomas explained the bail process. He asked if his wife would find out about the charges. D.C. Thomas said yes. Gary Allen told D.C. Thomas that he could not believe this would happen. “I only put an ad on Craigslist for someone over 18 and “Jenny” responded. She told me she was 14, so what was I supposed to do?” Gary Allen also stated that he was only talking to her and was never going to meet her.
• At Gary Allen’s request, D.C. Thomas moved a table saw and highchair into the house from the deck. Gary Allen also asked if he could change his clothes. D.C. Wohlert accompanied him upstairs to do so.
• Gary Allen was transported by police to the South Simcoe Police station. He provided a cautioned, video-recorded interview where he admitted that he had been the person sending the “Garry” Criagslist messages to “Jenny”.
• Partway through the interview, P.C. Veronica Sloan entered the interview room. Gary Allen learned that P.C. Sloan had been one of the photograph subjects, and that in fact “Jenny” was not a real person.
• A transcript of the video-recorded interview was included in this Application and was made an exhibit.
• The videotaped interview of Mr. Allen’s conversations with D.C. Wohlert on June 11, 2014, was played for the court.

POSITIONS OF THE PARTIES

Position of the Crown

9The position of the Applicant with respect to the statement of Gary Allen to D.C. Wohlert on June 11, 2014, is that it was made voluntarily. Mr. Allen’s willingness to engage in discussion regarding details of the messages sent between himself and D.C. Wohlert is illustrative of the fact that he spoke to D.C. Wohlert in an atmosphere free of oppression. The polite discussion he had with P.C. Sloan when he discovered that she had in fact been the subject of the photographs he had received, and not a real child, also attests to his freedom from oppression. There were no inducements offered, either explicit or implicit, and he possessed an operating mind throughout. The latter is conceded by counsel for Mr. Allen.

Position of the Respondent, Gary Allen

10The Respondent takes the position that the Crown seeks to introduce a number of statements made by Mr. Allen at trial. These utterances were made to D.C. now Sgt. Thomas and D.C. Wohlert. The Defence submits that these statements were made in violation of Mr. Allen’s rights pursuant to s. 10(b) of the Charter and were not made voluntarily. Further, upon a contextual analysis of the entire transaction of the police officers at the Allen residence and later at the police station for the interview, the Defence submits that the videotaped statement was tainted. A derivative confession was obtained and accordingly, the videotaped statement is inadmissible. Further, standing on its own, there are deficiencies rendering the statement involuntary and therefore, inadmissible.

ANALYSIS – VOLUNTARINESS – THE VIVA VOCE EVIDENCE

11P.C. Sloan is an OPP officer who was working on June 11, 2014. She had been assigned to assist the Child Exploitation Unit. She reported to the Bradford Detachment of the South Simcoe Police Service at 11 a.m. to assist. The case involved an investigation of child luring and there would likely be a search warrant. Her understanding was that there would be a meeting between the target accused, Gary Allen, and an undercover online person named “Jenny”. She understood that an email had been sent by “Jenny” to Mr. Allen.

12A telewarrant was obtained to search 101 Compton Crescent, Bradford, Ontario, being the residence of Gary Allen. At 7:53 p.m. she attended at that residence with other officers, including D.C. Kip Wohlert. She attended wearing plain clothes, OPP vest and duty belt. She had reviewed the search warrant before attending that residence. There were a number of electronic devices that were the subject of the warrant.

13When she arrived at the residence, other police officers were in attendance. They knocked at the front door but there was no answer. She and D.C. McDermott went around the back of the house where they encountered Mr. Allen. She had no conversation with him then. He was asked to come to the front of the house. She did not recall any further conversation between D.C. McDermott and Mr. Allen. All three of them went to the front of the house and were let in by Mr. Allen’s wife. Mr. Allen was located in the backyard at around 7:54 p.m. and they went into the house before 8 p.m.

14As a matter of officer safety, she went into every room on the second floor, main floor and basement. Two other people were in the house, namely, Mr. Allen’s wife, Nancy, and a two-year old.

15While P.C. Sloan did not seize anything, she located items that were eventually seized. In the upstairs bedroom she found a desktop computer. In the basement she found a black glossy laptop on top of an armoire. She notified another officer who dealt with these items.

16She was asked about her dealings with Mr. Allen inside the house. She had no direct conversation with him. She had no dealings with him at the time of his arrest. However, she did have dealings with him at the Bradford Detachment.

17She did not touch the desktop computer, nor did she take any photos of it. She left the residence at 9:45 p.m. with other officers. She did not know where Mr. Allen was when she left and she had nothing to do with his transportation.

18She testified that she attended the Bradford station where she watched a monitor of the video/audio interview of Mr. Allen by D. C. Wohlert. She was assigned the task of “scribe” and made notes in respect of what she viewed in respect of that interview.

19At the end of the interview, D. C. Wohlert invited her to enter the interview room. She did so wearing police identification. She identified herself as “Jenny”. It was her understanding that “Jenny” was a 14 year old girl with whom Mr. Allen believed he was conversing.

20During the course of the investigation, D.C. Wohlert had requested P.C. Sloan send images of herself which he would then send to Mr. Allen as “Jenny”. These photographs were requested months before June 2014. She did not know how the request came to her. D. C. Wohlert asked her if she would be willing to act as a “decoy” by providing these photographs. Because of her small frame, P. C. Sloan would be depicted as a small person.

21Over a two to three year period, she had received numerous photo requests by D. C. Wohlert and his colleagues. She never made any notes in respect of the images that she provided. D. C. Wohlert never told her who was being investigated or what offences were being investigated. She did not know what images were used with respect to Mr. Allen. She did not know how many photographs were sent to D. C. Wohlert or for what investigation they were requested.

22At or about June 2014 she was 24 years old, weighed 120 pounds with brown hair and stood five-foot five-inches in height.

23Once she took the photos she would email them or transmit them electronically to D. C. Wohlert.

24All of the photos were taken to avoid as much as possible a depiction of her face. She took all of the photos herself. She did not have any role in the preparation of the search warrant.

Cross-Examination of Police Constable Sloan

25In cross-examination, she testified that she is now 27 years of age. She began her service with the OPP in August of 2010. She had been with the OPP just under four years when she became involved with this matter. Prior to June of 2014 she had been involved in a number of other requests to provide photographs of herself on a regular basis. In total she estimates that she would have provided those photographs 20 to 30 times over a one to two year period involving more than one investigation.

26She testified that she did not know which investigations the photos were to relate. She had no record of what photos she took or what they were about. She did not know how they were used or whether they were altered or cropped. She did not keep any record of them. She did not know that she should have kept records of these photographs. She was never given any instructions to do so. It never crossed her mind to take notes. Often the requests came when she was at home, off duty and without her notebook.

27She had been trained in respect of the importance to take notes, both for the purpose of disclosure and for the purpose of her testimony in court. She could not recall which photos she had sent to D. C. Wohlert. After the Preliminary Inquiry in this case, she commenced keeping a record of the photographs which she has since provided.

28It was her understanding that the photographs would not be disclosed as they were privileged and formed part of what constituted police technique. She understood that the photographs were part of an undercover ruse to portray a girl under 18 years of age. The photographs were provided to the target under investigation to “prove” that the target was speaking to a girl under 18 years of age. The photos form part of the content between the undercover officer and the accused.

29She did not know how many photos she had sent to D. C. Wohlert. She always tried to hide her face with either her hair or by the use of a flash. Sometimes she would send ten pictures at a time and leave it up to D. C. Wohlert to make the appropriate selection. She testified that a portion of her face was visible in the photos.

30Marked as Exhibit Two was a DVD of two photographs made an exhibit at the Preliminary Inquiry, where they were marked as Exhibit One. Both photographs were identified by P.C. Sloan. The first photograph was taken in a washroom. The photograph was identified of herself wearing a pink shirt, black pants and holding up three fingers. She did not know if this was the entire photo or if it had been cropped. The second photo was also of P.C. Sloan reflected in a mirror in the same bathroom. She was wearing yoga pants and other clothing. She did not know if this was the entire photo or whether it had been cropped. She does not have the original photos. They were taken sometime after April 2014 in her home. She could not recall what the entirety of the photos looked like. She would not be surprised if the photos were not the full picture.

31She identified the date of Mr. Allen’s arrest as June 11, 2014. His arrest was part of a police investigation called “Project Masquerade”. This project involved the investigation and arrest of a number of other individuals in separate investigations, where PC Sloan also assisted with the execution of search warrants. This activity took place over a period of days.

32She was not involved in the undercover conversation between D. C. Wohlert and Mr. Allen. She knew that the target was Gary Allen and identified him in court at the Voir Dire.

33At the briefing, she was shown a photograph of Mr. Allen but did not know where that photograph came from. She knew that during the undercover conversations between D. C. Wohlert and Mr. Allen., D. C. Wohlert posed as “Jenny”. She did not know if Mr. Allen’s photo was provided to D. C. Wohlert during D. C. Wohlert’s conversations with Mr. Allen. She had no individual knowledge as to content of the conversations between Mr. Allen and D. C. Wohlert. She had no conversations with Mr. Allen while at his residence.

34After D. C. Wohlert’s interview with Mr. Allen at the Bradford station, she did have contact with Mr. Allen. She went into the interview room and identified herself as “Jenny”. She did not recall any other conversations at the station with Mr. Allen. When she entered the interview room, she was not sure if Mr. Allen recognized her immediately. She had not seen the video/audio statement and did not recall what Mr. Allen said some two and a half years ago. She believed that once she identified herself, Mr. Allen recognized her from her photographs.

Evidence of Sergeant Leah Thomas

35Sergeant Thomas has been a police officer since 1998. On June 11, 2014, she was a detective constable with the South Simcoe Police Services. She was permitted to refer to her notes made at the time or shortly thereafter, without changes, to refresh her memory. She has independent recall of these events.

36On June 11, 2014, she was working in respect of the investigation before the court. This was a joint investigation involving the OPP and the South Simcoe Police Service relating to internet child luring. She was asked to assist D. C. Wohlert during the investigation. The target was located in Bradford. At the Bradford Police station, she assisted D. C. Wohlert. He was preparing the search warrant. She had no part in writing the ITO. However, she was involved in sending the ITO to a Justice of the Peace at the Barrie Courthouse by way of telewarrant process.

37Initially, she had contacted the Barrie Courthouse to find out for how long a Justice of the Peace would be located there. She called the Justice of the Peace Office at 2:51 p.m. She received information that a Justice of the Peace would not be in the office past 3:30 p.m. It was determined that a telewarrant was required. She testified that the closest location where a Justice of the Peace would be present was at the Barrie Courthouse. She relayed this information to D. C. Wohlert.

38At 3:30 p.m. the search warrant was not completed and it was determined that a telewarrant was required. She assisted in sending the telewarrant by fax at 6:14 p.m. on June 11, 2014, to the Justice of the Peace. At 7:11 p.m. the warrant was issued and was sent back to the Bradford station. She gave the telewarrant to D. C. Wohlert. She reviewed the warrant and assisted in the execution of the search warrant. She was briefed before attending 101 Compton Crescent, Bradford to assist shortly before eight p.m. on June 11, 2014. She attended at that address with D. C. Shields. There were other officers in attendance. She was dressed in plain clothes but wore her police vest and duty belt. She identified herself as a police officer. Her vest also was marked “Police”. She went to the front door. There was a knock and identification as police. No one answered. P.C. Sloan and D.C. McDermott went to the back of the house and then returned to the front with a male person.

39Mr. Allen knocked on the door. There is no issue that Mr. Allen is the person who returned from the backyard with the two officers. After knocking on the door, his wife let him in. He identified himself as Gary Allen.

40They went inside the house and moved to the kitchen area. Sergeant Thomas, D. C. Wohlert, Mrs. Allen and Mr. Allen were in the kitchen. D.C. Wohlert explained the warrant to Mr. Allen. Sergeant Thomas did not assist in the search. Mrs. Allen then went into the basement with P.C. Sloan to locate the laptop computer.

41Sergeant Thomas asked the accused if he had an opportunity to review the warrant. She testified that he looked like he was in shock or that he did not understand what was going on. She offered to go through the warrant and she did explain each page to him and why they were there and what the authorization was all about.

42After reviewing Appendix ‘B’, she was satisfied that Mr. Allen knew why the police were there and why they were going to arrest him.

43The Crown is not eliciting evidence as to what was said during the review of the warrant by Mr. Allen. His wife returned upstairs after pointing out the computer in the basement. P.C. Murray was assigned to take her information.

44Mr. Allen was given his right to counsel and caution. He understood why the police arrested him; for luring times three and making sexually explicit material available to a person under 16 years of age. While there is no note as to when this was done, Sergeant Thomas testified that he was arrested within ten minutes of arriving at the house around eight p.m. Mr. Allen was told that he was under arrest and he appeared to understand. He was read the right to counsel which came from the back of Sergeant Thomas’s notebook. He was asked if he understood and he replied ‘yes’. She asked him if he wanted to speak to a lawyer at that time and he said “I don’t know where I am going. Will I be released?” Sergeant Thomas replied and explained that they were going to the South Simcoe Police station on Melbourne Drive. She responded that “We could facilitate speaking with duty counsel there”. He was asked again by Sergeant Thomas if he wanted to speak with a lawyer. Mr. Allen’s response was “I don’t have one. Yes please”. At that time he was given a caution which was read from the back of Sergeant Thomas’s notebook. He appeared to understand. He was also given a secondary caution as well from the back of Sergeant Thomas’s notebook. Again, he appeared to understand. Marked as Exhibit One on this Voir Dire, is a copy of the right to counsel, caution, and secondary caution from Sergeant Thomas’s notebook.

45After that, P. C. Murray returned with Mrs. Allen to where the accused was in the kitchen. It was at that time that Mr. Allen asked Sergeant Thomas if she would help him move some furniture on the back deck because it was about to rain. She agreed.

46Mr. Allen directed Sergeant Thomas outside to the back deck which was located off the kitchen through a glass sliding door. There were no draperies or a blind on the sliding door.

47It was not yet raining outside when Mr. Allen asked Sergeant Thomas what was going to happen next. Sergeant Thomas did not ask him any questions at all or ask him for information.

48No sooner did they go onto the deck that the patio door closed. He asked her what was going to happen next and Sergeant Thomas explained the court process. She believes that she was not asked this question in the presence of Mrs. Allen. Sergeant Thomas explained the bail process which Mr. Allen seemed to understand. Sergeant Thomas reiterated that Mr. Allen was still under arrest and in custody. Although he had not been handcuffed, he was cooperating and she treated him with mutual respect. He had no problem answering questions.

49After she explained the bail process, Mr. Allen asked if his wife would find out and Sergeant Thomas explained that his wife would be learning about it. Mr. Allen put his head down as if in embarrassment.

50Once he realized that his wife would find out he said “I only put an ad on Craigslist for someone over 18 and “Jenny” responded. She told me she was 14 so what was I supposed to do?” She did not respond. She did not ask Mr. Allen about “Jenny” then. This comment was introduced as evidence on the Voluntariness Application. The Crown seeks to adduce this evidence at trial. The Defence will object.

51He also said under the same circumstances, “Only talking to her and never going to meet her”, to which Sergeant Thomas did not respond.

52Mr. Allen did not say anything else. They then moved the furniture - a table saw and highchair and walked back inside. At no time did Sergeant Thomas make any threats to Mr. Allen or promise him anything. She did not say to him that if he agreed to speak with her things would be better for him. She denied saying to Mr. Allen that if he did not speak to her then things would go badly for him. She did not say to Mr. Allen that it would be beneficial for him if he gave a statement. She did not say to Mr. Allen that the outcome of his bail was contingent on what he said or did not say.

53She testified that Mr. Allen never said he did not want to speak with her.

54Mr. Allen turned over his cell phone to Sergeant Thomas which she, in turn, gave to D.C. McDermott who was part of the search.

55Once back inside the residence, Mr. Allen, who was wearing a tank top and shorts, asked if he could change his clothes. D.C. Wohlert escorted Mr. Allen to change his clothing. After changing his clothing Mr. Allen was handcuffed by Sergeant Thomas and escorted to P.C. Murray’s unmarked police car. D.C. Wohlert escorted Mr. Allen only for the purpose of privacy so that Mr. Allen could change his clothing.

56Sergeant Thomas remained at the house and finished speaking with Mrs. Allen at about 9:31 p.m. She left after that and went to the Bradford Detachment police station. By then, Mr. Allen had been processed and was in a larger cell. At the police station, Sergeant Thomas escorted Mr. Allen to the interview room where D.C. Wohlert was waiting. She had no conversations with Mr. Allen at the station. After escorting him to the interview room, she went to prepare paperwork.

57She did have further involvement with an exhibit. A sweater was turned over to her by D.C. McDermott. She logged in the sweater as property and placed it in a temporary sealed locker until it could go to the property room. She did not seize the sweater at the house.

Cross-Examination of Sergeant Thomas

58In cross-examination, Sergeant Thomas testified that at 11:48 a.m. on June 11, 2014, she was first involved in this investigation. She spoke with D.C. Wohlert and was advised that he was preparing the information to obtain the search warrant (ITO) to search at Mr. Allen’s residence. She received a briefing from D.C. Wohlert regarding the investigation and understood that D.C. Wohlert had conducted an online chat for a number of months posing as a 14 year old named “Jenny”. D.C. Wohlert believed that the target was Mr. Allen.

59At the time that she made her inquiries about the availability of a Justice of the Peace in Barrie, she was an experienced police officer. She held the rank of detective constable since 2008 – for some six years. She had assisted in the execution of search warrants and she had received training in this regard. She was advised that if the authorization was not presented in Barrie before 3:30 p.m., a Justice of the Peace would not be available. She was aware that the Newmarket Courthouse was ten minutes away from Bradford. She made no inquiries as to whether or not the Justice of the Peace was available at Newmarket. She was aware that Newmarket was closer than Barrie. The Barrie Courthouse was about a half hour drive from Bradford. She knew that Justices of the Peace are also located in Newmarket but she made no inquiries as to their availability.

60Her evidence at the Preliminary Inquiry was that if a Justice of the Peace was not available in Barrie to sign the search warrant, then the instructions were to ”go telewarrant”. She agreed.

61From her experience, if the police could not get to Barrie Courthouse in time then they were instructed to use the telewarrant process. There was no policy within the South Simcoe Police Service regarding the use of a telewarrant.

62She was cross-examined about the various types of warrants. There is the ordinary warrant pursuant to s. 487 of the Criminal Code. There are specialized warrants such as the telewarrant and the night-entry warrant which are exceptional forms of s. 487. The process to obtain a telewarrant is different from the ordinary s. 487 process. The telewarrant process does not require an attendance before a Justice of the Peace. She agreed it was to be used in exceptional circumstances and was not to be relied on for convenience sake. She agreed that a telewarrant would be used only where there were special grounds.

63She agreed that she was asked at the Preliminary Inquiry as to whether or not there was any particular or exigent circumstance to issue the telewarrant. She agreed that a response was that there was nothing of any urgency. There were no exigent circumstances.

64While assisting D.C. Wohlert, she did not know of any reason why the warrant needed to be executed on June 11, 2014. Other than a Justice of the Peace not being available in Barrie after 3:30 p.m., she was unaware of any other reason why the police could not wait to obtain the authorization. She did not know of any exigent circumstances or necessity requiring the issuance of the telewarrant, except that the courthouse in Barrie was open until four p.m. and she hoped that a Justice of the Peace could be available regarding the search warrant before four p.m. She only knew of the time constraint that a Justice of the Peace would be available in Barrie only until 3:30 p.m. There were no other exigent circumstances or matters of necessity. She testified that the police did not want to do a telewarrant if it was not required to be done. They were hoping to get to the courthouse before four p.m. and for no other reason. There was no concern about the loss or destruction of evidence or the accused fleeing before obtaining the search warrant.

65Once the search warrant was obtained, the police attended at the residence of Mr. Allen for the purposes of executing the warrant. She understood that Mr. Allen was going to be arrested. This was all discussed at the briefing before the police attended his residence. Her testimony was that there was no division of the tasks. However, she was the arresting officer.

66She testified that the police attended the residence of Mr. Allen. She, D.C. Wohlert and Mr. Allen went into the kitchen. Their exchange in the kitchen is not admissible as evidence at trial but relevant to the Voir Dire as to the issue of admissibility regarding the voluntariness of Mr. Allen’s statement and the Charter Application, ss. 8, 9 and 10(b).

67The plan was to execute the search warrant and arrest Mr. Allen. He was detained. In the kitchen, D.C. Wohlert showed Mr. Allen the warrant and explained the warrant to him. She did not know what pages were shown to Mr. Allen. A signed copy of the telewarrant to search Mr. Allen’s residence was marked as Exhibit Three (Exhibit Ten on the Preliminary Inquiry). She could not say which pages were put to Mr. Allen by D.C. Wohlert. At this point, she agreed that Mr. Allen was detained but not so advised. He was not given his right to counsel at this time. After D.C. Wohlert showed the warrant to Mr. Allen, D.C. Wohlert asked if Mr. Allen knew “Jenny” and Mr. Allen said “No”. “Jenny” is D.C. Wohlert’s online undercover profile. Again, Sergeant Thomas agreed that at this time, Mr. Allen was not advised that he was detained and was not advised as to his right to counsel. She also agreed that there were no exigent or urgent circumstances at that time.

68She testified that Mr. Allen was being very cooperative and respectful. There were no safety concerns. He was not resisting or fighting. Her impression was that he did not understand completely what was going on or what was being told to him. She offered to go through the search warrant with him together. Mr. Allen appeared to be shocked or stunned. This is not uncommon in these circumstances. Her impression was that he was not totally grasping the concept of the search and why the police were at his residence. Mr. Allen was not advised that he was either detained or arrested until after Sergeant Thomas went through the search warrant with him. She asked him some questions prior to his detention, or arrest, or his opportunity to call counsel.

69Put to Sergeant Thomas was whether item six on Appendix ‘B’ of the search warrant was put to Mr. Allen and whether Mr. Allen was asked to identify the photographs. Sergeant Thomas testified that all that she asked Mr. Allen was if he recognized the photos. His response was, “Well, yeah”. She did not make verbatim notes at that time but created a summary later.

70Sergeant Thomas testified that she asked Mr. Allen, “Then you know who “Jenny” is”. His response was “Yes”. At that time, P.C. Sloan and Mrs. Allen returned to the kitchen.

71She could not recall any other conversations other than what she wrote in her notebook. There were no exchanges of conversation except what is in her notebook. There are no other recordings as to what she said to him. She could not recall the exact words used in reviewing the telewarrant with Mr. Allen. However, they went through the telewarrant page by page.

72After reviewing the telewarrant, at this time, Mr. Allen was placed under arrest and advised as to his right to counsel and cautioned. She testified that the time between coming on scene and arresting Mr. Allen was about ten minutes.

73At this point in time she had been a police officer for 16 years and was aware of her duty to immediately advise a person for the reason of detention and also provide that person with the right to counsel. She testified that the events were “all fluid”. She agreed that Mr. Allen was not free to leave from the time that police arrived. She agreed that when the police arrived, Mr. Allen was detained. There were no safety issues and there were no urgent or exigent circumstances. She agreed that she asked if he knew “Jenny” before right to counsel was given. She agreed that she asked this question before advising him that he did not have to answer any questions.

74In the sequence of events, Mr. Allen then asked if he then could go outside with Sergeant Thomas. Again, all of the conversations were noted in her notebook.

75While outside, there was no verbatim recording of any conversation with Mr. Allen. After she gave right to counsel, she explained the process and Mr. Allen wanted to speak to a lawyer. She denied that she attempted to elicit evidence from Mr. Allen after Mr. Allen wanted to speak to a lawyer. She testified that it was Mr. Allen who asked about the process. This was his request. There was no reason why she felt she could not comply. Before going outside, she explained to him the process. She never said that she was doing him a favour because he was not handcuffed at the time. She reminded him that he was under arrest. She did tell Mr. Allen that he would be handcuffed to the rear provided he remained cooperative and then they would go to the station. It was Mr. Allen who was embarrassed and he did not want his wife to find out. Sergeant Thomas indicated that she would find out. She could not recall exactly what she had said to him. Mr. Allen did not ask to speak to Sergeant Thomas out of the earshot of his wife and Sergeant Thomas did not say to Mr. Allen that they could speak out of earshot of Mrs. Allen.

76After explaining the bail process, Mr. Allen put his head down, made utterances to which there was no reply by Sergeant Thomas.

77Sergeant Thomas denied the suggestion that she was doing Mr. Allen a favour while speaking out of the earshot of his wife. She further denied that if he admitted he spoke to “Jenny”, they would not have a conversation in front of Mrs. Allen. She further denied that having advised Mr. Allen that if he admitted he was the one who spoke with “Jenny”, it would make it easier later if he was going to be released.

78Sergeant Thomas testified that there were no other conversations, except Mr. Allen’s request if he could change his clothing before they left the house.

79After Mr. Allen had been transported to the station and during the time of the search of his residence, Sergeant Thomas told D.C. Wohlert about her conversations with Mr. Allen.

80When Mr. Allen was advised he was under arrest in his residence, police did not have a “Feeney” Warrant. Rather, Sergeant Thomas testified that the police had a telewarrant to authorize the search of Mr. Allen’s residence.

81There were no conversations between Sergeant Thomas and Mr. Allen about any consent on the part of Mr. Allen to go with the officers to the police station. Mr. Allen understood the charges but did not consent to be removed from the house to the police station. His cell phone was given to Sergeant Thomas who turned it over to D.C. McDermott.

Re-Examination of Sergeant Thomas

82In re-examination she explained the conversation on the back deck, where Mr. Allen was not handcuffed provided he remained cooperative. Sergeant Thomas testified that she treated Mr. Allen with dignity and respect. They went through the process and reviewed the telewarrant. She confirmed that Mr. Allen was under arrest. They were in an open space outside and she wanted to reaffirm that he was in custody and was not allowed to leave. Mr. Allen’s cooperation did not have anything to do with how he spoke to Sergeant Thomas. Rather, Sergeant Thomas did not want Mr. Allen to take off.

Evidence of Detective Constable Holly Murray

83D.C. Murray has been a police officer for seven years with the South Simcoe Police Service. She now holds the rank of detective constable.

84On June 11, 2014 she was on duty as a uniformed patrol officer. She started her shift at seven p.m. At 7:39 p.m. she was called by Sergeant Thomas to assist with the execution of a search warrant. She attended the station at 7:42 p.m. to meet with officers regarding the execution of the search warrant. She was shown the warrant which she initialled. It spoke to a search at 101 Compton Crescent in Bradford.

85D.C. Murray arrived at that address at 7:52 p.m. Her task was not to search but to transport Mr. Allen to the station. She went into the house and observed Mr. Allen inside his residence. She did not speak with him.

86D.C. Murray recalled that Sergeant Thomas arrested Mr. Allen. She recalled that they were in the kitchen where he was arrested and read his right to counsel. She was able to see him there.

87Once the arrest was complete, D.C. Murray walked Mr. Allen with Sergeant Thomas to the cruiser. This occurred at 8:15 p.m. Mr. Allen was placed in the backseat of the cruiser and was transported to the Bradford Detachment where they arrived at 8:26 p.m. There were no stops along the way. D.C. Murray was alone with Mr. Allen in the police car.

88D.C. Murray read a secondary caution to Mr. Allen which he replied that he understood. She also read right to counsel which he understood. He was going to contact Legal Aid at the station. There were no conversations in the cruiser and when they arrived at the station, and entered the Sally Port, Mr. Allen requested if the handcuffs would be moved to the front. As he was cooperative, she did so.

89After Mr. Allen was paraded before the Duty Sergeant, at 8:52 p.m., D.C. Murray left details for duty counsel. Duty counsel returned the call at nine p.m. Mr. Allen spoke with O. Sherman in private in the telephone room. The door was shut and locked by D.C. Murray. Mr. Allen was returned to his cell at 9:07 p.m. by D.C. Murray. Mr. Allen did not register any complaint to D.C. Murray about the time spent, the lawyer he spoke to or any advice he received. After returning to the cell, she had no further contact with Mr. Allen, who was identified by D.C. Murray as being the accused before the court.

Cross-Examination of Detective Constable Murray

90In cross-examination, D. C. Murray testified that right to counsel and a secondary caution were given to Mr. Allen by her because she was aware that another officer had given right to counsel and cautioned Mr. Allen. Mr. Allen was being re-advised of his rights. She did not ask him any questions. While he was on the phone she did not monitor his telephone call to counsel. The right to counsel and secondary caution read to Mr. Allen by D. C. Murray was marked Exhibit Four.

Evidence of Police Constable Nicole Kostiuk

91P.C. Kostiuk is a constable with the South Simcoe Police Service and has been a police officer since December 2007. On June 11, 2014, she was on duty and was requested to assist in an investigation by D.C. Wohlert. This investigation involved Gary Allen. She was asked to check the local record management system for any registration about Mr. Allen. The system indicated that there was a Gary Allen who resided at 101 Compton Crescent in Bradford, Ontario.

92She attended at that address to see what the property looked like and to see if there were any motor vehicles in the driveway that were related to Mr. Allen. She attended at the Allen residence with D.C. Shields at 11:13 a.m. They observed the house but no motor vehicles were in the driveway. They related that information to D.C. Wohlert and returned to the station at 11:24 a.m.

93At 3:30 p.m. they re-attended the residence to conduct surveillance and to see if any motor vehicles were in the driveway. At 4:50 p.m. they observed Mr. Allen arrive at the residence driving an SUV Equinox motor vehicle registered to Nancy Allen. That driver was identified by P.C. Kostiuk as Mr. Allen seated beside his counsel in the courtroom.

94The vehicle remained parked in the driveway until 5:27 p.m. when the vehicle was driven to a Zehrs parking lot. The surveillance was completed then.

95P.C. Kostiuk had no conversations with Mr. Allen and no contact with Mr. Allen. She had no dealings with him either before or after his arrest.

Cross-Examination of Police Constable Kostiuk

96In cross-examination, she testified that when she was asked to check Mr. Allen, she was given information that he was being investigated for child luring.

97She described her observations of Mr. Allen after he had returned to the residence around 4:50 p.m. She had no idea where he had come from or what he was doing before then. She observed him with his cell phone and a bag in hand. He went into the garage and then into the house. He returned to the garage and took a car seat out of the garage and put it into the trunk of the vehicle. The vehicle was observed driving and parking in the Zehrs parking lot, after which the surveillance was completed.

Evidence of Detective Constable Cameron Shields

98D.C. Shields has been a police officer for 15 years. He is a police officer with the South Simcoe Police Service.

99He testified in respect of his involvement in this case. He was contacted by Sergeant Thomas who required his assistance in the execution of a search warrant.

100Shortly after 7:10 p.m. he, along with P.C. Kostiuk were requested to check on 101 Compton Drive in respect of a child luring case. His evidence was consistent with the evidence of P.C. Kostiuk.

101After the surveillance was completed at the Zehrs parking lot, D.C. Shields attended the Allen residence at 7:53 p.m. There were numerous other officers there. His role was to assist in the search of the residence. He went into the residence to make sure that all of the rooms were clear and that there were no safety concerns. He searched the master bedroom and found a Toronto Maple Leaf hoodie hanging in one of the closets. He left it there but asked D.C. McDermott, the Exhibits Officer, whether there was any interest in seizing this article. It appeared to be the hoodie Mr. Allen was wearing while he was holding up three fingers. D.C. Shields did not recall identifying who was wearing the hoodie in the photo. He was asked to seize this item and turn it over to D.C. McDermott. This was done shortly after 8:01 p.m. on the evening of June 11, 2014.

102The Toronto Maple Leafs hoodie was marked as Exhibit 13 at the Preliminary Inquiry. It was removed from the exhibit bag and identified by D.C. Shields’s as the Toronto Maple Leafs hoodie with the sports emblem of the Toronto Maple Leafs and writing “Winter classic the Big House 2014” on the front. This item was marked Exhibit Five on the Voir Dire.

103Although D.C. Shields saw Mr. Allen at the residence, he had no interaction with him and he had no interaction outside the residence with him either.

Cross-Examination of Detective Constable Cameron Shields

104In cross-examination, D.C. Shields testified that he was not involved in seeking the search warrant but was asked to assist in the investigation. He was involved in surveillance to determine if Mr. Allen was at home, knowing that the warrant would be executed later. His instructions were to observe Mr. Allen. He was not instructed to detain or prevent Mr. Allen from going into the residence. He was not instructed to preserve evidence in the house prior to the warrant being issued. He and P.C. Kostiuk undertook surveillance. P.C. Kostiuk never detained or prevented Mr. Allen from going into the residence. She never located evidence in the residence prior to the warrant being issued.

105Other than the Toronto Maple Leafs hoodie, there was nothing else that ended up being seized as a result of his involvement. He did not have any conversations with Mr. Allen. Sergeant Thomas spoke with Mr. Allen but D.C. Shields did not hear their conversation.

Evidence of Detective Constable Christopher Bateman

106D.C. Bateman is an Ontario Provincial Police Officer. He has been a police officer since January 2004.

107On June 11, 2014, he was on duty and assisted in the investigation in the Bradford/Newmarket area regarding Gary Allen.

108At 3:07 p.m. he was asked to locate Mr. Allen’s vehicle in the Newmarket area. He was unsuccessful. At 4:56 p.m. he learned that Mr. Allen had returned to his residence. At 5:15 p.m. D.C. Bateman returned to the South Simcoe Police station in Bradford. At that time he attended on a briefing by D.C. Wohlert and was advised as to what his role would be.

109At 7:45 p.m. he arrived at the Allen residence and saw two vehicles in the driveway. He was instructed to stand-by. Other officers arrived at 7:52 and D.C. Bateman’s role was to assist with the search.

110D.C. Bateman stayed with the Tactical Team. He entered the residence and conducted a search. He found an SD memory card LEXAR in a jewelry box in the master bedroom. He showed it to D.C. McDermott who took a photo of it. The memory card was seized and at 10:18 p.m. D.C. Bateman left the Allen residence. While he was at the residence he had no interaction with Mr. Allen. He had no interaction with him prior to the execution of the search warrant. He left the residence and went to the station to do paperwork. There was no interaction with Mr. Allen at this later stage either.

Cross-Examination of Detective Constable Bateman

111In cross-examination D.C. Bateman confirmed that apart from reviewing the ITO for grammar, he did not prepare this document. He was not asked by D.C. Wohlert for any advice on how to obtain such an authorization. D.C. Bateman was given specific instructions to locate Mr. Allen’s motor vehicle in the Newmarket area because Mr. Allen worked in the auto industry in that location. This request was made at 3:07 p.m.

112D.C. Bateman also went to the Allen residence to make observations and to check whether Mr. Allen had left the residence. He was not asked to do anything else. He was not asked to preserve any evidence prior to the execution of the warrant. He was not requested to detain Mr. Allen or to have any resident of 101 Compton step outside while the warrant was being obtained.

113Exhibit Three, the telewarrant was put to the D.C. Bateman. It authorized the search of 101 Compton between the hours of 7:15 p.m. and 11:59 p.m. on June 11, 2014.

114The document was reviewed in respect of Appendix ‘A’ regarding the search of certain items.

115The LEXAR memory card was returned to Mr. Allen because the Tech-Crime Unit found no evidence on the card. D. C. Bateman had no dealings with any other devices seized. Based on his review of the telewarrant, there was no authorization to search any other location at any other time.

Re-Examination of Detective Constable Bateman

116In re-examination, in D.C. Bateman’s experience, there was a preview of an item seized at the scene. That item would then be taken back to the Tech-Crime Unit for further search and investigation. He testified that authorization searches permitted seizure and then search over time at police headquarters. He departed the Allen residence at 10:18 p.m. He also testified that after 11:59 p.m. there was no further search.

Evidence of Special Police Constable Daniel Bingham

117Daniel Bingham is a Digital Forensic Analyst employed by the Ontario Provincial Police. While he is a civilian, he holds the rank of Special Police Constable (S.P.C.).

118On June 11, 2014, he assisted in the execution of a search warrant in the capacity of a Digital Forensic Analyst. He attended the residence at 101 Compton Crescent in Bradford at 7:58 p.m. Prior to his attendance at the residence, he had attended the South Simcoe Police station in Bradford, where he viewed a copy of the search warrant. His role was to preview computers or any other digital devices at the scene in accordance with the search warrant. The purpose of the preview was to prevent any over-seizure and to seize only relevant evidence.

119He went into an upstairs room and located an HP desktop computer which he took down to the dining room where he eventually conducted a preview of the hardware on that computer.

120S.P.C. Bingham was looking for keywords and pictures. He collected certain pictures by way of the preview and some photos as a result of the keyword search. The keywords he searched were – “JennyW”, “Craigslist ID #4421152680” and “email GMX1966@hotmail.com”.

121S.P.C. Bingham also took a series of photographs at the scene. These photographs were taken by S.P.C. Bingham at 101 Compton Crescent on June 11, 2014. They can be found on a disc of photos marked Exhibit Six. He took 55 photos. He testified as to what was depicted in each photo. The photos were time stamped. The photos show that he attended the upstairs room where he located the HP desktop computer. The computer was located at 8:01 p.m. The computer was unlocked when he accessed it. He also took photographs of a router and computer cables and where they were connected to the back of the computer. He took a photograph of the computer serial number ‘MXX851034B’.

122Photograph number 19 showed the result of running the OS Triage program which identified the computer’s internet history, internet chats and various identifiers and encrypted data. The internet history showed internet activity in respect of a site called “Badjojo”. He did not know what site this was. He located some chat artifacts from a Skype program with a name displayed – Gary Allen.

123At 8:20 p.m. he removed the power from the computer which had the effect of preserving information at that moment in time.

124At 8:22 he removed the side panels of the computer so that he could access the hard drive. He was still in the upstairs room at the time. He took certain close-up photographs of the hard drive and certain cable connections.

125At 8:31 p.m. S.P.C. Bingham plugged the hard drive into a device called a “Write-Blocker”. This device is part of his forensic kit which allows him to preview information on the computer. One of the programs used to look at the information on the hard drive was called “X-ways”. Another software program used was a program called “Encase”.

126Photograph number 40 at 9:07 p.m. showed search hits in accordance with the keywords located within the X-ways program. There were 6001 hits associated with the string of numbers associated with the Craigslist keyword. The “JennyW” keyword produced 108 hits. There could have been more hits located at different sites but he did not pursue that investigation.

127Photograph number two, timed 10:02 displayed some keyword hits. On the right side of the photo was computer text in readable “human” form. On the left side was found information in hexadecimal form which is the way a computer encodes and stores information in zeroes and ones.

128On the right side of the photo S.P.C. Bingham identified information “Can you do me a favour. Can you take a selfie of your body not your face and hold three fingers up so I know it is you please”. This information was found on the hard drive. Again, the computer code was found on the left side of the display and information in English was found on the right side.

129Photograph 46 showed another message on the right side – “I’ll be in after four tomorrow. If you’re around to chat that would be great”. This was found on the hard drive.

130Photograph 48 timed at 10:03 p.m. also displayed information on the right hand side – “Saturday 19 Apr 2014, 141420400” - “Would you like to chat”. This entry was found on the hard drive.

131Photograph number 49 timed at 10:03 was another close-up of the right hand side. “Don’t forget you answered my add (sic)”. These words were on the hard drive. Other words found on the hard drive were shown on photo 51 timed at 10:03 – “Hi “Jenny” are you looking for a sexual experience with an older man”.

132Photograph 53 timed at 10:04 displayed more words on the right hand column – “I’ve never done this before. Not sure what is supposed to put here. I’m 14, blond hair, five feet and 90 pounds. I live in Innisfil which I guess is close. Not sure what else to put or say. Guess we can chat if you want to”. These words were found on the hard drive.

133S.P.C. Bingham testified that a “hit” can be found within a volume shadow copy which is the blue string of information found at photograph 55. The volume shadow copy on the computer hard drive is an automatic snapshot that the computer takes which is a way for the operating system to potentially recover files later down the line. This was found on the computer hard drive.

134S.P.C. Bingham turned off the computer at 10:06 p.m. Photograph 56 timed at 10:06 p.m. was taken when he turned off the Write-blocker. Again, the Write-blocker is a device that previews the contents of computer data without any change to that computer data.

135Before taking the photographs, S.P.C. Bingham made sure that the time computer stamp was accurate. He checked the computer time against another known time device and it checked out.

136In addition to the text for which he searched, he also searched for photographs. He was specifically looking for a photo of a person wearing a Toronto Maple Leaf hoodie holding three fingers and a photo of an undercover officer.

137He found two photos of a white person wearing a Toronto Maple Leaf hoodie holding up three fingers. These images were found in a profile labeled “Garry Allan” within a folder labeled “pictures”. These were two identical photos. The file was created on May 20, 2014. He could not tell when the photos were created. The digital file record was created on that day. He was able to use a pathway on the hard drive to locate where the photos were on the hard drive. He used the path to access the file. He testified that path was “the pathway C../users/GarryAllan/pictures/Still0000BMP”. The second photo was found on the same path but the file name was “0001.BMP”.

138He did not keep a copy of the hard drive. After his examination, he left the residence at 10:18 p.m. He did not seize anything. The HP computer was disconnected from the Write-blocker device. He turned the hard drive to the HP desktop enclosure and advised officers that the item was for seizure. S.P.C. Bingham prepared a Preview Report which was marked Exhibit Seven. He did not perform any other forensic examination of the computer. He does not recall to whom he gave his Preview Report.

Cross-Examination of Special Police Constable Daniel Bingham

139In cross-examination, he reviewed Exhibit Three on the Voir Dire, namely, a copy of the search warrant. What he was searching for was described at page six of nine of the warrant. One of the items located on that page was the Toronto Maple Leafs hoodie. He was referred to page four, Appendix ‘A’ of Exhibit Three. He testified that there was an authorization to conduct a search at 101 Compton Crescent, Bradford, on June 11, 2014 between 7:15 p.m. and 11:59 p.m. He attended that residence at 7:58 p.m. and left at 10:18 p.m. He testified that the search warrant authorized subsequent searches as far as computer forensic analysis was concerned. This was his belief based on seminars presented by the Crown, case law supported by the courts and on-the-job training. He conducted no further searches. He did not make the final decision as to what was to be seized. His role was to preview and indicate what items should be seized. He did not create a copy of the hard drive which was to be seized later. Other than previewing information from the HP desktop hard drive, he previewed no other device.

140In cross-examination certain photos were put to S.P.C. Bingham which had been marked Exhibit Six.

141S.P.C. Bingham had taken photos which depict certain fragments of a conversation and also keyword hits based on relevant terms. He took some photos for the Preview Report, such photos as appeared notable and based on the briefing and warrant. He did not know over what period of time the computer was involved in a conversation between D. C. Wohlert and Mr. Allen. Fragments of conversation were found in the volume shadow copy as part of the normal operation of the computer (included in the snapshot automatically taken by the computer). The volume shadow copy is found on the computer hard drive. He could not say how this information ended up on the hard drive or the context in which the information was found on the hard drive. He could not say when these artifacts were created on the hard drive. Comparing certain photos would not assist him in dating when the artifacts were created. A further search would be required to do that and he did not undertake such an investigation. While he could testify as to where the hits would be located within the volume shadow copy, he could not say where they came from or when.

142S.P.C. Bingham knew nothing about the subject investigation apart from what was contained in the search warrant. He did not know that the “Badjojo” site related to the search or investigation. He took his photos to create a record of how he was going about performing his preview. They form a portion of his notes as well. He did a brief preview of some of the hits – only a small selection of the search hits are in his Preview Report. He did not provide further information regarding those hits.

143The two photos in his Preview Report of the Toronto Maple Leaf hoodie arose as a result of his search of the hard drive. However, he did not know how or in what context they came to be located on the hard drive. Also, he was able to say that the user profile “Garry Allan” was created but he was not able to say how or in what context.

Evidence of Detective Constable Brian McDermott

144D.C. McDermott has been with the OPP for 18 years. He is a member of the Child Sexual Exploitation Unit. He was on duty on June 11, 2014. He spoke with D.C. Wohlert in respect of a potential meeting with an individual in the South Simcoe Police area.

145He attended the South Simcoe Police station in Bradford at two p.m. He received a briefing by D.C. Wohlert which included the potential for an individual to meet with a “decoy” officer.

146D.C. McDermott was assigned the task to see if he could find Mr. Allen’s vehicle either at 101 Compton Crescent or at a location in Newmarket. He was unable to locate the vehicle. He returned to the South Simcoe Police station at 5:15 p.m.

147D.C. McDermott was not involved in drafting the warrant or any part of the application for the warrant. He testified that a telewarrant was obtained and that he was asked to assist in the execution of the search warrant as the Exhibits Officer.

148Before attending 101 Compton Crescent in Bradford, he reviewed the search warrant and the list of items to be searched. He attended the residence at 7:27 p.m. He seized a HP desktop computer (the same computer identified by S.P.C. Bingham). This computer was found in the computer room on the top floor of the house, below a desk. He also seized a Samsung cell phone given to him by Sergeant Thomas. He took possession of a Toronto Maple Leafs hoodie from D.C. Shields. Marked as Exhibit Eight was the HP desktop computer, identification number ‘MXX851034B’. This computer was marked Exhibit 14 at the Preliminary Inquiry and was ordered to remain in the possession of D.C. McDermott.

149Prior to June 10, 2014, he had no prior involvement in this investigation. He did have some involvement in another investigation where a search warrant was executed on June 6, 2014. After seizing the computer, he gave it to D.C. Wohlert and had no further involvement in the investigation.

Cross-Examination of Detective Constable McDermott

150In cross-examination, he was questioned about his duties in the Child Sexual Exploitation Unit. This is the same unit in which D.C. Wohlert is a member. D.C. McDermott testified that he is involved in online luring investigations, peer-to-peer, reactive (general) investigations. He described what each of these investigations entailed.

151At the time of this investigation, he was working with D.C. Wohlert. There were 13 officers working in the unit. There were many ongoing investigations at the time and on average there were two arrests per week by the unit. The unit covers most of Ontario and provides services to mostly areas covered by the Ontario Provincial Police. Services are also provided to other areas and other police services that have their own similar units.

152D.C. McDermott assisted in the execution of the warrant on June 6, 2014, in respect of an ongoing project named “Project Masquerade”. This involved peer-to-peer individuals and Mr. Allen was not connected to this other investigation in any way. The project involved a number of files and the unit had resources at hand to execute search warrants as a matter of convenience around the same time.

153D.C. McDermott testified that he reviewed the telewarrant on June 11, 2014. He may have reviewed the ITO as well. He testified about trying to locate Mr. Allen’s vehicle without success. After reviewing the search warrant, he assisted in the execution of that warrant by serving as the Exhibits Officer. He would consult with D.C. Wohlert as to what items were to be seized. The warrant indicated that 101 Compton Crescent in Bradford was to be searched for certain enumerated items found in Appendix ‘A’ between 7:15 p.m. and 11:59 p.m. on June 11, 2014. It was D.C. McDermott’s evidence that the search warrant would allow for the analysis of certain items seized in the search at a later time. This was based on his understanding of the decision referred to as R. v. Vu and his training. He believed that if the item was seized lawfully no further warrant would be sought to search the item later.

154D.C. McDermott testified about the three items seized:

1. The HP computer.
2. The Cell phone; and,
3. The Toronto Maple Leafs hoodie.

155In consultation with D.C. Wohlert, a decision was made to seize the computer. Decision was made to seize the phone by both D.C. McDermott and D.C. Wohlert.

156As for the hoodie, he decided to seize this item as other evidence found pursuant to the search warrant per s. 489(1)(c) of the Criminal Code. He testified this was the same or similar hoodie found in the online chat. After the seizure, he did not recall returning to the justice.

Evidence of Detective Constable Kip Wohlert

157D.C. Wohlert has been an officer with the Ontario Provincial Police for 29 years. Since 2006 he has been a member of the Child Sexual Exploitation Unit. He authored two briefs. Marked as Exhibit Nine (Exhibit Seven on the Preliminary Inquiry) was a court presentation which describes an overall view of the investigation. It contains some but not all of the 509 emails between D.C. Wohlert and a person.

158The second brief marked Exhibit Ten (Exhibit 7A of the Preliminary Inquiry) is a brief described as the chat log of the communications between D.C. Wohlert and a person. All of the 509 emails are located in Exhibit Ten.

159D.C. Wohlert described his duties in the unit. He was involved in investigating online exploitation of children and was specifically tasked to investigate the online luring offences, both reactive and proactive. He also presents lectures to various community organizations and to police services.

160D.C. Wohlert described the difference between proactive and reactive investigations. The proactive investigations would be similar to the investigation in the case at bar. In such investigations he monitors the social network sites and identifies persons who might be exploiting children online. The reactive investigations are those following up on complaints reported to the police.

161D.C. Wohlert testified that in this investigation he entered into the website known as Craigslist. He was looking for advertisements that had word similar to “young” and “any age” that he could potentially investigate. He started reviewing this website on April 16, 2014.

162In his evidence, D.C. Wohlert cited page two of the court presentation:

On the 16th day of April, 2014, I was working in an undercover capacity on a social networking site known as Craigslist.com. I posed as a 14 year old girl named “Jenny”. My profile username was “JennyW”. At 1:32 p.m. I entered the social networking site Craigslist.com.

163At page three of the court presentation he identified the screen capture of the Craigslist section specific to the Barrie area. Subcategories were described and he concentrated on the personals subsection and in particular the category of casual encounters.

164D.C. Wohlert referred to page four of the court presentation which indicates that on this date he browsed the personal advertisements for casual encounters. Craigslist posts a warning and disclaimer in respect of casual encounters. Unless all of the following 4 points were true, the user is directed to employ the “back” button to exit this part of Craigslist:

(7) I am at least 18 years old. (8) I understand “casual encounters” may include adult content. (9) I agree to flag as “prohibited” anything illegal or in violation of the Craigslist Term of use. (10) By clicking on the links below, I release Craigslist from any liability that may arise from my use of this site.

165D.C. Wohlert testified that on April 16, 2014 at 2:05 p.m. he observed that an unknown person had posted an advertisement looking for a “young woman”, “prefer under 110 pounds”, “for sexual encounters”. These key words raised a suspicion that the young woman being sought had a petite stature and could be a child.

166D.C. Wohlert described the search of this particular website which had resulted in a number of arrests in the past. At page six of the court presentation was a screen capture of the actual advertisement with posting identification number 4421152680. D.C. Wohlert sent a response on April 16, 2014. The purpose of his email response was to provide an opportunity for this unknown person to respond. D.C. Wohlert posed as a 14 year old girl with blond hair, five foot tall, weighing 90 pounds and living in Innisfil. He gave that person the opportunity to respond or not. “Guess we can chat if u want to”. He testified that this site was a known predatory website for child exploitation which he explored as part of a bona fide criminal investigation. His response is found at page eight of the court presentation.

167On April 16, 2014 at 4:33 p.m. an unknown person responded to the email and a conversation started and continued over the following two months.

168At that point in his evidence, D.C. Wohlert switched over to Exhibit Ten, the chat log, and was taken through the series of chats, 509 in all, between himself, posing as “JennyW”, and the other person on the Craigslist account number 4421152680. Throughout, D.C. Wohlert used the email address JennyWsk8rgurl.12@gmail.com.

169D.C. Wohlert was taken through the 509 email exchanges compiled in the chat log (Exhibit 10). Those emails commenced on April 16, 2014, and ended on June 1, 2014. These emails were an exchange between D.C. Wohlert, posing as “JennyW”, and the person at Craigslist 4421152680, identified as “Garry.” That person was later identified as Gary Allen. Throughout these email exchanges, D.C. Wohlert portrayed “JennyW” as a 14 year old girl. The initial posting came from Mr. Allen who was looking to have sex with a young woman under 110 pounds. From email number 49 forward there was talk about pictures. At email 54 Mr. Allen asks “Jenny” to take a selfie of her body but not her face and hold three fingers up so that he would know it was her.

170Email 61 is the response in relation to the picture. At email 65, Mr. Allen tells “Jenny” to send the picture to GMX1966@hotmail.com. D.C. Wohlert continues the chat through the Craigslist account number. At email 69 Mr. Allen sends a message about needing a picture to know that he is chatting with a woman and if he does not get a picture then they will not chat anymore.

171D.C. Wohlert testified that he did not have a picture immediately available. However, he did obtain a picture from Detective Gibbons of his office. Her face was not depicted. This photo was sent to Mr. Allen on April 23, 2014, by email 74.

172D.C. Wohlert testified that he continued portraying himself as “Jenny”, a 14 year old girl. He testified that he carried on because it was his duty to determine whether this was a child exploitation case. By sending the picture, he was complying with the earlier request. It was up to Mr. Allen to decide if he wanted to discontinue chatting.

173There are further chats after the picture was sent. There was some chat by Mr. Allen that he would send “Jenny” a “cock pic” if she were older but he did not want her to get into any trouble if her mother found the picture. There are further emails where “JennyW” was complimented by Mr. Allen as being very sexy.

174At email 84 he asks if “Jenny” has let a guy play with her very hot sexy body. D. C. Wohlert continues to maintain the persona of “JennyW”, a 14 year old girl. At email 102 on April 25, 2014, he sends a picture as an attachment Still0000.BMP to “Jenny”. This is a picture of Mr. Allen seated with the photo depicting his crotch area. They continued to chat. At email 117, “Jenny” tells Mr. Allen that she has purchased some new jeans. At email 118 dated April 27, 2014, Mr. Allen asked “Jenny” to send him a selfie of her “tight ass”. At email 153, Mr. Allen asks “Jenny” if she has ever watched porn movies, to which “Jenny” replies “No”. Mr. Allen indicates that he has and directs “Jenny” to a site called “Badjojo” by email dated April 28, 2014. He tells her that she can turn off the “history” on the laptop so that her parents will not know what she has seen.

175At email 178, Mr. Allen tells “Jenny” that if she does not like “Badjojo” there are more free sites. She is asked at email 185 whether or not she has checked out “Badjojo”. At email 202 dated April 30, 2014, Mr. Allen directs “Jenny” to another porn website called “Redtube”.

176D.C. Wohlert testified that “Badjojo” and “Redtube” are adult porn sites that depict both soft and hard core pornography. He describes what each term meant. They were intended for persons over the age of 18 and depicted simulated sexual acts as well as extremely explicit sexual activities between adults and animals.

177The chats continued, again talking about sex. At email 242 dated May 12, 2014, “Jenny” chats with Mr. Allen about a pic from “Jenny” holding up three fingers so he would know she was real.

178At email 281 dated May 17, 2014, “Jenny” sends Mr. Allen a pic of “Jenny” wearing black yoga pants (Exhibit Two on the Voir Dire). “Jenny’s” email refers back to Mr. Allen’s email, 273, dated May 15, 2014, about the black yoga pants. The picture of the person in the black yoga pants is that of P.C. Sloan.

179At email 285, dated May 17, 2014, “Jenny” asks, “…is it ok that im 14 years old????” And Mr. Allen replies at email 286 on the same date that, “…is okay and yes I really like your pic”.

180Mr. Allen asks for a front view of her “sexy body” in her black yoga pants at email 288 on May 18, 2014. At email 306, “Jenny” sends Mr. Allen the “pic” he requested, holding three fingers up so that he would know it was her. This picture is of P.C. Sloan once more wearing black yoga pants facing a mirror.

181At email 308, dated May 20, 2014, “Jenny” tells Mr. Allen that she “…will be 15 years old in july”. At email 313 dated May 20, 2014, Mr. Allen again asks “Jenny” if she “…would be embarrassed if I sent you a cock picLOL”. He never does send her such a photograph.

182However, at email 327 he does send her Still0000.BMP being a photograph of himself wearing a Toronto Maple Leafs hoodie, holding up three fingers. “Jenny” acknowledges receiving this picture. There is chatting about a meet but the meeting never happens.

183At email 377, Mr. Allen requests another “pic” of “Jenny”:

can you send me another one with a little less clothes on . so i can see that sexy body more.

184That email is dated May 27, 2014. At email 381, Mr. Allen sends this message on May 27, 2014:

how about your bathing suit or less its up to you

185He goes on to chat that “Jenny” does not have to if she feels embarrassed. At email 386, “Jenny” asks if Mr. Allen is serious, that he wants to see her naked. He replies by email 387, dated May 27, 2014:

with a bathing suit only naked if you feel comfortable

186She replied that she had never done so before and would be too embarrassed to do so. He responded that she should forget that he asked and that he did not want her to feel weird by the request:

your to nice for me to piss you off.

187That message was contained in email 390 dated May 27, 2014. The chat about pictures from “Jenny”, naked or otherwise, continued, starting with email 396, sent by “Jenny” on May 27, 2014. She asks:

like totally naked or???

188He responds by email 397 on the same date:

what ever you like top on or off with panties on what ever your comfortable with sexy

189At email 414, dated May 30, 2014 and preceding, there is further discussion about seeing naked pics of “Jenny’s” body.

190At email 416, dated May 30, 2014, Mr. Allen asks “Jenny”:

you don’t have to answer this question but do you play with your self

191“Jenny” responds:

Not really….is that ok????

192The chats continue about having sex, “playing with yourself” and the following message by Mr. Allen to “Jenny” at email 427, dated May 30, 2014:

bye for now sexy and have a great weekend. to bad i couldnt coach you into playing with your self before your parents get home.

193He goes on at email 430, same date:

i could tell you what to do and close your eyes and thin of me with my tongue all over your body

194“Jenny” responds at email 431 on the same date:

really????u would want to do that?????

195Mr. Allen replies at email 432 on May 30, 2014:

yes and i know you would love it

196The chat continues on the same date with Mr. Allen chatting at email 436:

yes i would make you feel like a woman

197The chats about “Jenny” masturbating do not end there. The chats continue at email 438, 439 and 440, where Mr. Allen asks “Jenny” if she was thinking about:

playing with your self with my direction

198This was at email 440, dated May 30, 2014. There are further discussions about Mr. Allen wanting to take pictures of “Jenny” after school was over at email 456, dated June 3, 2014.

199At email 463, dated June 4, 2014, Mr. Allen tells “Jenny” that he’d love to meet her. At email 464 on the same date he tells her that he cannot stop thinking of holding his hands on:

…your little beautiful bum.

200At email 467, dated June 4, 2014, he tells “Jenny” as he has told her before that he is 45:

…i could go to jail just thinking about you.

201The chats continue with further discussion about “Jenny” sending Mr. Allen “pics”. In email 495 dated June 6, 2014, Mr. Allen talks about meeting:

if we meet on Wednesday and im not to gross for you can i touch your little butt.

202There is chatting about going for a walk in the park on Wednesday. However, Mr. Allen could not meet on Wednesday. However, at email 506 dated June 11, 2014, he goes on to chat:

i want to meet you you sexy thing you

203The last message is email 509 by “Jenny” dated June 11, 2014, where she tells Mr. Allen that she is going to go for a walk with a friend and hang out at home until her parents return.

204D.C. Wohlert testified that Exhibit 10 (the chat log) represents the entire chat between himself posing as “Jenny” and Mr. Allen. The exhibit was produced for the court. All emails were obtained directly from Google mail and laced into a format created by officers in his office. The emails are put in order to create a thread using a tool available to the officers without changing any of the original chat wording.

205After testifying about the emails contained in the chat log, D.C. Wohlert returned to page 157 of the court presentation book (Exhibit Nine). D.C. Wohlert testified that on June 2, 2014, he requested assistance through Special Agent Aaron Chapman who issued an administrative subpoena on the security section of Craigslist. On June 10, 2014, he received the following subscriber information from Craigslist, set out on that page. The posting identification number was 4421152680. This was the posting ID of the person who was messaging “Jenny”. Poster email GMX1966@hotmail.com was the email of the person creating the Craigslist profile to set up an account on Craigslist. The poster internet protocol was number 64.231.106.14. The account was set up on Sunday, April 13, 2014. The area description was Barrie and the geographic area was Bradford. The category description was “casual encounters” and the category type was “personals”. The age listed was 45. The posting title was “want to fuck a young woman – M4W”.

206D.C. Wohlert conducted an open source check on the internet protocol address on June 10, 2014. He learned through the open source program on the internet that the block of numbers were owned by Bell Canada.

207On June 10, 2014 at 11:53 a.m., he sent a Law Enforcement Request to Bell Canada Security for subscriber information. On June 10, 2014 he received information from Bell Canada Security advising that the internet protocol address 64.231.106.14 as at Sunday, April 13, 2014 at 12:09 Pacific Time, was registered to “Garry Phillip Allen, 101 Compton Cr. Bradford, Ontario”.

208This Request was an investigative tool available to the police prior to the Supreme Court of Canada decision in R. v. Spencer. On legal advice received from the Crown Law Office at 720 Bay Street, D.C. Wohlert testified that the police were to do business as normal until the Spencer decision “becomes normal”.

209D.C. Wohlert continued working on the ITO for a s. 487 search warrant on June 9, 2014. He continued working on other investigations as well.

210He was seeking to search computers and other devices linking Mr. Allen to images, chat logs and email messages.

211On June 11, 2014 at the conclusion of the chats, D.C. Wohlert believed that the person he spoke with had committed a number of offences through the use of a computer, such as sexual assault, invitation to sexual touching, making child pornography and making available sexually explicit material. The child pornography offence was based on requests from Mr. Allen to the 14 year old girl wanting to see naked pictures of herself.

212He had commenced working on the ITO on June 11, 2014 at 10:30 a.m. He worked throughout the day on the ITO, hoping to obtain a warrant sometime during the day and then executing the search warrant further to the investigation.

213The ITO, when completed, was to go to the Barrie Courthouse. He was unable to complete the ITO in time and was advised by Sergeant Thomas that the ITO would not be accepted after 3:30 p.m. The problem was that no Justice of the Peace would be available after that time to review the ITO. It was D.C. Wohlert’s intention to complete the ITO before 3:30 p.m. and then travel to Barrie with the ITO to present it to a Justice of the Peace. That never happened. As a result, a telewarrant document was prepared. D.C. Wohlert explained that there were a number of other child exploitation arrests which had occurred within a short period of time. These arrests were reported by the media and he was concerned about potentially alerting anyone else with the effect that evidence would be either deleted or destroyed. He was concerned about the media publicity and the destruction of evidence. He was aware of another case where, in the midst of an online communication, the suspect had heard that someone was arrested for talking to a child which resulted in the end of a conversation at that point in time. There was nothing else before June 11, 2014 that factored into obtaining the search warrant, apart from what was contained in the chats.

214D.C. Wohlert finished writing the ITO at 6:14 p.m. The ITO was faxed to the telewarrant center at 6:36 p.m. as a result of a technical difficulty with this fax machine. At 7:11 p.m. he received the authorization signed by Justice of the Peace Brownell. D.C. Wohlert then briefed his team and proceeded to 101 Compton Crescent. Marked as Exhibit 11 was the ITO telewarrant marked Exhibit Eight at the Preliminary Inquiry.

215At 7:54 p.m. D. C. Wohlert arrived at the Allen residence. He conducted the briefing and assigned duties to various officers. He decided what items would be seized. He found Mr. Allen, his wife, and one child at home. D.C. Wohlert identified Mr. Allen seated at counsel table in court. Sergeant Thomas was assigned to take control of Mr. Allen. D.C. Wohlert was not involved with Mr. Allen’s arrest. He was involved in supervising the search and seizure. He had no interaction with Mr. Allen except for the online chats and Mr. Allen’s subsequent interview.

216The time on the telewarrant granted for the search was from 7:15 p.m. to 11:59 p.m. on June 11, 2014. This later time was not requested in the ITO but rather 8:59 p.m.

217D. C. Wohlert testified that the police arrived at 7:54 p.m. and at that time it was dark. Certain items were seized and given to D.C. McDermott. On the following day, June 12, 2014, D.C. Wohlert received a computer tower and cell phone which were brought to the Electronic Crime section at Orillia Headquarters and secured in their vault. D.C. Wohlert was not involved in the transportation of Mr. Allen to the Bradford Police station.

218He next saw Mr. Allen at the Bradford station where he conducted an interview of Mr. Allen in the audio/video recording room. Another officer was the monitor. His notebook shows that at 11:30 p.m. he concluded his duties for the day on June 11, 2014.

219Mr. Allen was brought from the cells to the interview room. D.C. Wohlert could not recall by whom. He did not have any conversation at the station with Mr. Allen prior to the interview.

220Viewed on the Voir Dire was the video/audio recording of Mr. Allen’s interview with D.C. Wohlert on June 11, 2014. The CD of this interview was marked Exhibit 12. Mr. Allen’s interview was videotaped at the South Simcoe Police Service station at Bradford. His videotaped statement commenced at 10:15 p.m. and ended at 11:20 p.m. D.C. Wohlert explained the offences with which Mr. Allen was charged and Mr. Allen understood that explanation.

221D.C. Wohlert also explained to Mr. Allen that Mr. Allen had the right to speak with a lawyer for free legal advice and Mr. Allen acknowledged that the spoke to duty counsel when he was brought into the station. D.C. Wohlert also explained that Mr. Allen had the right at any time to speak with counsel. Mr. Allen advised D.C. Wohlert that his lawyer told Mr. Allen not to say anything. However, Mr. Allen continued to participate in the interview.

222After explaining the charges, D.C. Wohlert went on to explain that if a new charge arose, then he would stop and advise Mr. Allen that he would have the right to contact a lawyer at that time. Further, D.C. Wohlert went on to say and confirm that, as Mr. Allen’s lawyer said, Mr. Allen had the right not to say anything in answer to anything that D.C. Wohlert had to say. Mr. Allen was not obligated to say anything and if he wanted to that was his choice.

223D. C. Wohlert went on to explain the jeopardy that Mr. Allen was facing in respect of his criminal charges and went on to explain that if convicted, these offences carried mandatory minimum sentences that run consecutively. Mr. Allen understood what D.C. Wohlert was telling him.

224Mr. Allen knew that he was speaking with someone who was 14 years of age, although he was looking to speak to someone 18 to 20 years of age. Nevertheless, even though Mr. Allen was not going to meet with “Jenny”, he did tell her that he would like to meet just to keep the conversation going. Regardless, Mr. Allen was busy at work and did not intend to meet with “Jenny”. Although he said there was no excuse, Mr. Allen denied that he was a sexual predator. Mr. Allen said that he did not realize that “You can do something by not even meeting anybody”.

225D.C. Wohlert put to Mr. Allen that he was talking to “Jenny” and saying that Mr. Allen would direct her on how she could touch herself and masturbate. Mr. Allen responded that he should not have done that. D.C. Wohlert also put to Mr. Allen that some of the chats were super graphic and that Mr. Allen was asking “Jenny” for pictures in a thong or top on or top off, “What ever (sic) you are comfortable with”. He told Mr. Allen that that was illegal. He advised Mr. Allen that this was just a sampling of what had come off the computer. He also told Mr. Allen that “Jenny” was showed “Badjojo” and “Redtube” by Mr. Allen. Mr. Allen acknowledged that he had told “Jenny”, a 14 year old, to look at these sites. D.C. Wohlert explained that the reason the law was passed was to prevent the grooming process to break down the inhibitions of children. Mr. Allen was 53 years of age at the time and he was not dealing with somebody that was over the age of 18, 19 or 20. Mr. Allen told D. C. Wohlert that “Jenny” was the only female that he had ever talked to that was 14 years of age. First, Mr. Allen thought that it was a male person or a joke. Again he said that there was no excuse. He told D. C. Wohlert that he had asked “Jenny” for specific pictures and that Mr. Allen had sent one to her holding up three fingers and he had her send one to him holding up three fingers.

226D.C. Wohlert went on to explain the bail process and what would likely happen the next morning when Mr. Allen was to appear in court.

227Mr. Allen told D.C. Wohlert that he should have stopped the conversation with “Jenny”. He did not deny sending “Jenny” the pictures where he was wearing the Maple Leaf hoodie and holding up three fingers. Mr. Allen spoke to some people at work and learned about Craigslist and joking about talking to not a girl but a guy on Craigslist. Mr. Allen became curious but again said he should have stopped. He did not realize that his chats would get him into big trouble. He did agree that there were some chats where Mr. Allen said to “Jenny” that he could not meet with her because he would go to jail and would be in big trouble.

228Mr. Allen thought that there was something wrong but continued with the chats anyway. They talked about her pictures to him and his pictures to her and the exchange about the “cock pic”. Mr. Allen again said that he should have stopped the chats. He said:

It’s almost like you just get caught up in the conversation kinda thing or.

229They talked about what would likely happen at court before the Justice of the Peace the following day and D.C. Wohlert did not know whether or not he would be able to attend. He was asked questions by Mr. Allen as to the possible outcome. However, D.C. Wohlert replied that the terms, conditions of bail and possible outcome were left to the decision of the presiding Justice. They also talked about the seized computer and how Mrs. Allen would have to acquire another computer to do online banking. Mr. Allen told D.C. Wohlert that he did not think that just chatting would get him into trouble.

230For a moment, D.C. Wohlert left the interview room and then returned with a female police officer. He introduced this female officer to Mr. Allen as “Jenny”. She told Mr. Allen that she was the 14 year old girl that he spoke to. Mr. Allen told the officer that she was the only 14 year old that he had spoken to and repeated to her how he went on Craigslist before and spoke with someone who turned out to be a guy. The interview ended at 11:20 p.m.

231D.C. Wohlert testified that the female officer in the interview room was P.C. Sloan. After the interview, Mr. Allen was escorted to his cell. There were no discussions about the investigation. After Mr. Allen was escorted to his cell, D.C. Wohlert saw Mr. Allen and his wife at a shopping center. They said hello and that was it.

232Other than the 509 email chats between them, D.C. Wohlert did not have any conversations with Mr. Allen. He did not have any idea why Mr. Allen had referred to GMX1966@hotmail.com in one of his emails. As “Jenny”, D.C. Wohlert did not receive any direct messages from that address.

233D.C. Wohlert testified about the C4 All Program that was created by the Electronic Crimes Unit which permitted the categorization of a large number of images on a computer or storage device. This software program was used to search for the images set out in Appendix ‘A’ of the ITO and the search warrant. He did not have these images from the computer categorized by the C4 All Program when he took Mr. Allen’s statement.

234When he viewed the C4 All Report of images found on Mr. Allen’s computer, he did not find any child pornography images.

235As for the cell phone, there was nothing of investigative interest regarding the phone.

236D. C. Wohlert testified that he did not threaten Mr. Allen to give a statement to him. He offered no deals to Mr. Allen or promises to get Mr. Allen to give a statement. He did not say to Mr. Allen that if he gave a statement, Mr. Allen would receive benefit. He did not say that if Mr. Allen did not give a statement, there would be detrimental consequences to Mr. Allen.

Cross-Examination of Detective Constable Wohlert

237D.C. Wohlert was cross-examined about his background and duties with the Child Sexual Exploitation Unit. He has been with that unit since 2006. The main thrust of the unit is to investigate the sexual exploitation of children on the internet. This involves an element of technology.

238D.C. Wohlert was questioned about his training related to the performance of his duties in the unit. A large part of his investigation involves computers. While he does not search for data, his duty is to investigate online regarding the sexual exploitation of children. His duties extend to steps leading to the arrest and seizure of evidence. It involves using computers which may contain information to prove the identity of a person or persons with whom he is dealing.

239As part of D.C. Wohlert’s duties, he has taken training in respect of the preparation of information to obtain (ITO) and search warrants. He is familiar with the preparation of these documents. He understands the principles in respect of the preparation of s. 487 warrants. In preparing the ITO he needs to demonstrate to a Justice of the Peace that there has been a criminal offence and that items are listed for seizure. He needs to demonstrate that the items to be seized are at a location to be searched and those items will afford evidence connected to the offence. These items would be required to further the investigation. His understanding is that they were looking for items to seize and not necessarily items that can be taken away. D.C. Wohlert would need to demonstrate a connection between the offence and item to be seized. Both would need to be demonstrated.

240D.C. Wohlert was aware of s. 487(2.1) of the Criminal Code which provides special direction and powers regarding computers. This section provides power to search computers at a place and to make copies of data. He agreed that there were certain types of information not allowed to be included in an ITO. For example, he would not be permitted to rely on information which was unconstitutional or illegally obtained. D.C. Wohlert agreed that in preparing an ITO, he was aware that a Justice could not rely on information obtained in breach of the Charter rights of a person being the subject of the warrant. He agreed that if there was an illegal search and seizure, there could be no reliance on the basis for the warrant. D.C. Wohlert agreed that a Justice, in considering if the warrant was valid, must not rely on information illegally obtained in the ITO. D. C. Wohlert was aware of this practice. Any affiant needs to make full and frank disclosure in the ITO. Generally, he agreed that there would be no reliance or putting forward of information not true or correct.

241D.C. Wohlert was aware of two special types of warrants and was questioned about procedure in respect of s. 487 warrants and procedures in respect of telewarrants. He agreed that telewarrants were not to be used as a matter of convenience. They were not used all of the time. Telewarrants were obtained where a Justice of the Peace was not available or where there was some necessity or urgency. He was also aware of warrants authorized for nighttime entry pursuant to s. 488 of the Criminal Code.

242In this case, the warrant was not obtained for nighttime entry. The warrant authorized a search between the hours of 7:15 p.m. and 11:59 p.m. This was not requested by him but authorized by the Justice of the Peace. D.C. Wohlert testified that there was plenty of time to enter 101 Compton Crescent and conduct a search before 8:59 p.m. He has never seen where a Justice of the Peace has granted the time to conduct an entry and a search up to 11:59 p.m.

243D.C. Wohlert agreed that once a warrant was obtained and signed by a Justice of the Peace, parameters were created for the search. Limitations were created as to what the police were allowed to do. He was aware that there was an expectation of privacy in respect of computer devices. He agreed that the warrant gave authorization to infringe upon any reasonable expectation of privacy. If acting outside the boundaries of the warrant, he agreed the warrant did not authorize that conduct. Some other justification would be required to go outside the warrant. The authorization to search and seizure was drawn from the warrant and he agreed that he was bound by the way the warrant was worded.

244As for any offence particularized in the warrant, the warrant would tell him what, when and where he was allowed to do. Warrants are to be clearly drafted. The subject of the search warrant would know what was being searched and so that there would be no confusion as to what the police were supposed to or not supposed to do. Sometimes warrants would authorize a search and sometimes a warrant would authorize the seizure of items. S. 487 (2.1) provides for making copies.

245In respect of the execution of a warrant, the warrant describes the search to take place at a specified location. It also sets out the time limits in respect of the search. Where a search takes longer than the original time, further authorization can be obtained where more time is required. An extension would be asked for in such circumstances. Once the search warrant has been executed and completed, another search warrant would be required to return to the same location. Once the warrant has been executed, a report to the issuing Justice is required indicating that the search was completed and advising the Justice what items were found and seized.

246D.C. Wohlert was cross-examined in respect of the signed telewarrant found at Tab ‘B’ in the affidavit of Mindy Wagner. The telewarrant authorized search and seizure of 101 Compton Crescent, Bradford, on June 11, 2014 between the hours of 7:15 p.m. and 11:59 p.m. He drafted the warrant and the items to be searched. He created Appendix ‘A’ which set out the seven items that were the subject of the search at this location. The warrant did not confer authorization other than for the search of the seven items. D. C. Wohlert testified that further search could be conducted at a later time and he relied upon the ITO, Appendix ‘C’, paragraph 45 (J) found at Tab ‘A’ in the affidavit of Mindy Wagner. He testified that the search authorized the search and seizing of items and further conducting a search of those items at General Headquarters in the Forensic Unit. He testified that in the ITO he had asked to enter this premises, search and seize and further search at a later time. Appendix ‘A’ would set out the items to be searched, one to seven, and Appendix ‘B’ set out the offences.

247D.C. Wohlert’s evidence was that paragraph three of Appendix ‘A’ set out that once items were seized in paragraphs one and two, those devices would be searched looking for the items listed in paragraphs five to seven inclusive. He was looking for computers and other information storage devices. Once seized, these items were to be searched to find evidence to support the charges identified in Appendix ‘B’. That examination would be undertaken by forensic personnel. In the residence, a preview would be undertaken to prevent over-seizure. If a computer were located, it would be searched at a later time. No material was copied from the computer. The entire computer tower was seized.

248D.C. Wohlert testified that the week prior to Mr. Allen’s arrest there were four other arrests in June, 2014, in Barrie, St. Catharines and Kitchener. The practice of the unit after an arrest was to prepare and distribute a press release which would provide information, uniform statement and also provide for deterrence. The press releases would be issued once a week, maybe more or maybe less. He had referred to a case in point where a person caught wind of an arrest and stopped conversing. There has been no move to change the policy in respect of press releases in his unit. The arrests that he spoke of were not coordinated to take place at all the same time. The police were not able to do so, given manpower constraints. Rather, the arrests were conducted over a period of days. They involved joint investigations between various police agencies in different jurisdictions.

249There was nothing in any conversation that D.C. Wohlert had with Mr. Allen that led him to believe that there was going to be the destruction of evidence. A looming threat in such investigations would be the instant destruction of evidence. That threat was always present. It was the constant possibility that someone might be tipped off by a press release. D.C. Wohlert testified that in respect of Mr. Allen’s case, the back-to-back arrests in the Bradford/Barrie area increased concerns. However, these concerns are always present with respect to the destruction of evidence when there would be police press releases where a number of warrants were executed in a row.

250D.C. Wohlert did not believe that there were any individual press releases for the arrests that had been conducted prior to Mr. Allen’s arrest. The searches were done as quickly as could be done within a five day period.

251D.C. Wohlert testified that the police tried to execute the warrant on June 11 because they were hoping to arrest Mr. Allen at the same time as a proposed meeting with “Jenny”. (See email 503 and 509). It did not appear from the conversations in those emails that Mr. Allen was concerned or agitated about the meeting. Nothing was overtly said. Rather, there was a chat about going to a park in Innisfil for a walk and having some ice cream.

252D.C. Wohlert was questioned about his awareness of the Spencer decision by the Supreme Court of Canada. At the time that he obtained Mr. Allen’s IP address he did so by way of Law Enforcement Request and not by way of warrant. He knew that Spencer was before the Supreme Court of Canada but continued to use this tool (the Request) and not obtain a warrant until a decision was rendered by the court. He was aware that the court had not yet rendered its decision in Spencer.

253Once the court determined that the request process was unconstitutional, that tool was no longer used by the unit. Once the decision was made, everyone in the office conformed to a new set of rules. Although he was not aware of the release date of the Spencer decision, defence counsel put to D.C. Wohlert that the release date was June 13, 2014, two days after Mr. Allen was arrested. D.C. Wohlert testified that the office became aware of the Spencer decision shortly after its release. This could have been within a few days or a week after the decision was released.

254D.C. Wohlert was cross-examined again as to the basis of his belief that items seized on June 11 could be examined at a later date. His evidence was consistent. The search warrant allowed for the seizure of items one and two of Appendix ‘A’ and item three authorized the search of those items for evidence at items five through seven inclusive.

255D.C. Wohlert testified that items were previewed on June 11, but the actual search for those items took place on February 2015. The seizure stopped and then the search was further undertaken in February 2015. D.C. Wohlert believed that he was authorized to seize items and search at a later date. He relied upon the Vu decision as well as advice from Andrea D’Alleandrea of the Crown Law Office, the ITO and court cases.

256In the present case, there was no specific advice received by D.C. Wohlert.

257D.C. Wohlert could not provide the specific date or had a specific note as to when he last reviewed the case law regarding authorization to conduct later searches after the time on a warrant expired. D.C. Wohlert was unaware of decisions by other judges in homicide and terrorism cases regarding the timing of searches and the validity of warrants. He was not familiar with those cases because they were not child exploitation cases. He believed that searches could be conducted at a later date without a second warrant. He was relying on the various cases and his training. D.C. Wohlert agreed that if a warrant was valid, then it would give authority to search at a later time.

258D.C. Wohlert testified that this report to the Justice of the Peace was completed on June 19, 2014. It should have been completed the day before but it was not done so due to his error.

259The report lists the computer tower and Samsung cell phone. It does not list the Toronto Maple Leaf hoodie which was also seized. D.C. Wohlert agreed that it should have been listed on his report. He explained that the two devices were brought to him in Orillia but the hoodie was retained by the South Simcoe Police. It was his error that the Toronto Maple Leaf hoodie was not included in his report to the Justice of the Peace. He never considered obtaining a further warrant to conduct a search in respect of Mr. Allen’s computer.

260D.C. Wohlert testified that he did not know the identity of the other person until he obtained the subscriber information from Bell. Further investigation provided the name and address of Mr. Allen.

261In the emails, that other person did not reveal his full name, where he worked or where he lived. This meant the emails did not reveal Mr. Allen’s address, date of birth or his surname. This information was subscriber information obtained from Bell which was used to investigate who at that address used the computer. The IP address was assigned to 101 Compton Crescent in Bradford. He did not know if the computer was tied to any other devices. D.C. Wohlert surmised that the communications were taking place through a computer. However, he did not know this until he attended the residence. He could not tell from information obtained either from Craigslist or from Bell what type of device was used. The Craigslist information told him that the ad was posted on April 13, 2014. The information that he had received disclosed that there were no other IP addresses associated with the chats.

262A review of the emails did not indicate where “Garry” worked. They only indicated various times which he would be available to chat. As for the dates of the emails, these dates were accurate but the time was expressed as “universal time” and not actual time. D.C. Wohlert could not say what the time was in his time zone.

263D.C. Wohlert testified that based on the emails he concluded the location of where the other person was and where the computer was located and the time that that person was available to chat.

264D.C. Wohlert was questioned about information at the bottom of the messages identifying that the message was sent by a computer system. There was no identification that a cellular device was used. The email signature was created either by the device itself or by Craigslist software but he could not confirm either way. He did not investigate this observation further. He did not know whether or not a cell phone was used. From the emails, he could not determine where Mr. Allen worked or when he returned home from work. In this regard, he was being questioned about what information was contained in the ITO. D.C. Wohlert concluded that the information he obtained was consistent with Mr. Allen returning home from work at four p.m. and using the computer. This was based on the emails and information from Craigslist and Bell Security. Paragraph 47 of the ITO formed the basis for the conclusion that the computer is located at 101 Compton Crescent and would be there on June 11, 2014. He relied on the same information available to him.

265D.C. Wohlert was then questioned about the execution of the warrant.

266D.C. Wohlert testified that there was a short briefing at the station regarding the execution of the warrant. He detailed Sergeant Thomas to be in control of Mr. Allen. Ultimately, Mr. Allen would be placed under arrest. D.C. Wohlert was not involved in Mr. Allen’s arrest. He was in the midst of searching when he was advised Mr. Allen had been arrested. His arrest was done prior to the searches. It was Sergeant Thomas who arrested Mr. Allen and arranged for transportation to the station. At that time Mr. Allen was a person of interest. Grounds were formed to arrest him. He did not give Sergeant Thomas any instruction to place Mr. Allen under arrest. He did not give Sergeant Thomas any instructions to obtain information from Mr. Allen. D.C. Wohlert did not ask her to confirm information or obtain a statement from Mr. Allen. He had no discussions prior to Mr. Allen’s arrest for Sergeant Thomas to do any of these things. D.C. Wohlert decided what items were to be seized and ultimately, a computer, cell phone and Toronto Maple Leafs hoodie were seized. After the preview, the computer was searched because of D.C. Wohlert’s belief that the computer contained information relevant to the investigation. The entire computer tower, including the hard drive, was seized. The cell phone was seized because it was a storage device and could contain images that were sent as D.C. Wohlert posed as a 14 year old girl. D.C. Wohlert testified that the cell phone was not used in the conversation. However, it could be used to store images. He was not sure if any preview took place at the residence of the cell phone. He could not recall if the phone was on or off. He could not recall any preliminary investigation done in respect of the phone. The authorization to seize the computer and cell phone arose from the search warrant. The Toronto Maple Leafs hoodie was seized in plain view during the search. It was similar to the one depicted in the images. Therefore it was seized.

267D.C. Wohlert may have had brief words with Mr. Allen at the house as Mr. Allen sat down. He appeared shaken.

268While at 101 Compton Crescent, D.C. Wohlert did not ask Mr. Allen whether or not he participated in a conversation with “Jenny”. He did not ask Mr. Allen if he recognized any photos in the online conversation as D.C. Wohlert posed as “Jenny”. While at 101 Compton Crescent, D.C. Wohlert did not obtain any inculpatory comment or pose any question to Mr. Allen that would have produced an inculpatory statement.

269D.C. Wohlert testified that he did not accompany Mr. Allen to any other part of the house. He did not go with him so that Mr. Allen could change clothes before going to the station.

270The next step after the execution of the warrant was to complete the report to the Justice of the Peace. On June 12, 2014, D. C. Wohlert secured those items that had been seized (the computer and the cell phone) by placing them into the Electronic Crimes property vault. He made a request that these items be examined. He testified that the authority to search further came from the June 11, 2014 warrant. These items were searched for images per Appendix ‘A’ and the warrant. He was not specifically looking for child pornography and no child pornography images were located on the computer. D.C. Wohlert agreed that when unconstitutionally obtained information is included in the ITO, this could possibly invalidate a warrant. The only information pointing to 101 Compton Crescent and Mr. Allen was the subscriber information that came back from Bell Security such as Mr. Allen’s name and address. He was not aware that the Crown considered the warrant invalid. He was asked whether he ever put his mind to whether the warrant was invalid after learning of the Spencer decision and shortly after Mr. Allen was arrested. D.C. Wohlert said yes. When asked whether knowing that he considered excising information from the ITO and that the warrant might not be valid, he replied that he used whatever information was available at the time. Then he testified that he did not give any consideration that the warrant might no longer be valid. D.C. Wohlert did not give consideration at the time of the authorization because he was following the rules. He did not receive any advice to the effect that after Spencer he could no longer amend an invalidated warrant.

271D.C. Wohlert was cross-examined in respect of the issue of voluntariness. He interviewed Mr. Allen at the station and took a videotaped statement. Prior to the statement being taken he did not recall receiving any information from other officers of any statement that might have been made by Mr. Allen. He could not recall nor did he have any notes about any information received regarding any inculpatory statement that Mr. Allen made at his residence. There might have been a conversation between himself and Sergeant Thomas on this topic but he could not recall having such discussion nor did he have any notations. D.C. Wohlert’s notes indicated that the execution of the search warrant took place at 101 Compton Crescent on June 11, 2014. He arrived at 7:54 p.m. and identified Gary Allen at that address. He supervised the search and Sergeant Thomas arrested Mr. Allen who was taken to the South Simcoe Police Station at Bradford for interview. The final note is at 11:30 p.m. when he went off duty. There are no other notes which D. C. Wohlert prepared. He had very limited contact with Mr. Allen. There are no references to previous conversations with anyone else between D.C. Wohlert and anyone else on the video. There are no other conversations or notations about right to counsel, apart from what appears on the video. Regarding D.C. Wohlert’s conversations with Mr. Allen, there were no other conversations outside of the video interview. There was a brief conversation going to the cell but they did not talk about the case. There were no conversations with Mr. Allen before the interview. He spoke to Mr. Allen about right to counsel in the interview. Marked as Exhibit 12A is the transcript of the interview of Gary Allen dated June 11, 2014. It corresponds with the CD of the interview marked Exhibit 12.

272D.C. Wohlert was taken to specific pages of the transcript. In particular, he was cross-examined about explaining Mr. Allen’s jeopardy so that Mr. Allen fully understood what consequences he faced and so he could understand and be fully informed. If convicted, D.C. Wohlert advised Mr. Allen about mandatory minimum jail sentences for the offences charged. He advised that these charges could proceed summarily which is the less serious route, or by way of indictment which is more serious. Most of these kind of charges would proceed by way of indictment. He told Mr. Allen that there would be mandatory minimum sentences of one year for luring and one year for each of the charges against him. He told Mr. Allen that these charges would run consecutively and that Mr. Allen was in a serious position facing mandatory minimum sentence of three years.

273D.C. Wohlert agreed that he was incorrect and was in error when he told Mr. Allen the mandatory minimum sentence for making sexually explicit material available to a child was one year. Rather, in 2014, the mandatory minimum sentence was 90 days. The tougher penalties under the Child Predators Act did not come into force and effect until June 18, 2015. The statute to which D.C. Wohlert was referring had not even come into force at the time that he was interviewing Mr. Allen.

274Further, the tougher penalties for child predators amended s. 718.3. The amended portions of that section created consecutive sentences. It related to s. 163.1 and non s. 163.1 offences. In either case those provisions were not applicable to Mr. Allen’s case. Mr. Allen was not charged with an offence under s. 163.1. D.C. Wohlert acknowledged that he was mistaken and his understanding was also in error.

275D.C. Wohlert was taken to further contents of his statement. At page 58 line 15 of the transcript there is reference to D.C. Wohlert saying that Sergeant Thomas gave him (D.C. Wohlert) the “nod” when she came back inside the residence after speaking with Mr. Allen on the deck. D.C. Wohlert went on to say “You knew what went down and you stood up and said…”. He agreed that Sergeant Thomas had conveyed something affirmative to him. He believed that there were grounds for Mr. Allen’s arrest at that time, confirmed to him by Sergeant Thomas without any conversation taking place. D.C. Wohlert denied that the “nod” was a physical gesture. He could not recall the specifics about the “nod” regarding the arrest of Mr. Allen. His sentence was incomplete to Mr. Allen and he had no idea of what the completed sentence would have been. He believed that Mr. Allen took responsibility and that he was arrested. D.C. Wohlert testified that he thanked Mr. Allen for talking to him and claiming responsibility. D.C. Wohlert also testified that the grounds to arrest had not been formulated prior to going to the residence. At that time Mr. Allen was still a suspect in the case. The search warrant and examination of the exhibits led to grounds for arrest.

Re-Examination of Detective Constable Wohlert

276In re-examination D. C. Wohlert was directed to email 55 which informed him that Mr. Allen had to work all day. All of the 509 chats were considered and informed D.C. Wohlert.

Evidence of Inessa Pesenko

277Marked as Exhibit 13 on the Voir Dire was an Agreed Statement of Facts regarding the evidence of forensic analyst Inessa Pesenko. This Agreed Statement of Facts was read into the record. She is an O.P.P. officer who conducted the later computer search pursuant to the telewarrant.

278This concluded all of the Crown’s evidence on the Voir Dire.

Evidence of Gary Allen

279On that part of the Voir Dire dealing with the issue of voluntariness, Mr. Allen testified that on June 11, 2014, members of the OPP and South Simcoe Police Services entered his home in order to execute a search warrant. When he went into the kitchen, he went behind his wife who was sitting at the kitchen table. Sergeant Thomas was there. When asked why the police attended at his home, they said that they were there with a search warrant for a computer. Mr. Allen was told why the police were searching for the computer. He had a conversation with Sergeant Thomas about why the police were in attendance at his home and about the warrant. Sergeant Thomas said they were searching his house for a computer and other things. He could not remember what else she said. Somebody asked where the computer was located. He went behind his wife and told the police to go upstairs.

280When asked if Sergeant Thomas asked any questions about “Jenny” or “JennyW” he replied yes. She also showed him two photographs. She asked him if he knew who “Jenny” was and he said no. He identified Exhibit Three, Appendix ‘A’, item six as the two photos that were referred to him by Sergeant Thomas. He was asked, “Do you know what this is about?” by Sergeant Thomas. “Do you know “Jenny”? He said no. Mr. Allen testified that he said something else outside of the kitchen. He recalls that his wife and granddaughter left the kitchen. At that time, Sergeant Thomas suggested that they go outside for a minute. He went outside because he wanted to put his tools away as it might rain. He testified that he did not know what was going on and he could not remember if he was under arrest at that time. Mr. Allen said that he was in shock because the police were there.

281Outside on the deck, he was asked what conversations he had with Sergeant Thomas. He testified that Sergeant Thomas said that if he acknowledges that he knows “Jenny” that “It will go easier for you later” – those words – or words close to that effect. When asked if there were any other conversations, Mr. Allen testified that he asked what was going to happen to him and where he was going to go. He may have asked some other questions but he did not remember. Further, he could not remember being advised to contact a lawyer during his conversation with Sergeant Thomas. He did not remember because it was only a couple of minutes after the police got there and he was in shock. He testified that when he was in the backyard, he took something under a tent and observed Sergeant Thomas nodding to somebody through the window.

282Mr. Allen was asked what the conversation with Sergeant Thomas had to do with his wife. He testified that while he was on the deck, just before the nod by Sergeant Thomas, Sergeant Thomas said, “If you tell us about “Jenny” we won’t tell your wife”. Sergeant Thomas brought up the subject of Mr. Allen’s wife. This came up when Sergeant Thomas was talking about whether he knew “Jenny” and it would be better for Mr. Allen later and the police would not tell Mrs. Allen right now. This concerned Mr. Allen because he did not know what the police were going to tell his wife.

283Later on, he got dressed and Sergeant Thomas asked him if he had a cell phone. He could not recall if he had any other conversations with Sergeant Thomas on the deck.

284Mr. Allen did recall having a conversation with Sergeant Thomas and asked just before leaving whether he had to wear handcuffs. She said yes.

285After speaking to Sergeant Thomas on the deck, he went inside, and asked to change clothes. D.C. Wohlert went upstairs with Mr. Allen while he changed his clothes.

286Mr. Allen testified that while he was changing upstairs in the presence of D.C. Wohlert, D.C. Wohlert told Mr. Allen that it was good that he had stepped up and told Sergeant Thomas about “Jenny”. Mr. Allen said nothing before that to D.C. Wohlert. He was asked whether D.C. Wohlert said anything else to him about what was going to happen going forward. Mr. Allen thought that while he was putting his pants on D.C. Wohlert said “It will help you out later on saying about Jenny”. This had to do with admitting that he knew “Jenny”. Mr. Allen did not think that D.C. Wohlert said anything else. Mr. Allen thought it would be easier for him at the police station, with the possibility that they would let him go or drop the charges against him. This is what Mr. Allen thought. He had never been in this situation before.

287Mr. Allen testified that he was given the opportunity to speak to counsel a few minutes after he arrived at the police station. After that, he spoke to duty counsel and understood what his rights were going forward. He was advised that he did not have to talk to anybody or to any police officer. Mr. Allen testified that he understood that he had the right to choose to talk to the police. Mr. Allen was asked whether he had changed his mind about wanting to speak to the police. He testified that he said, “Not really”, but D.C. Wohlert was nice and Mr. Allen got caught up in the conversation.

288Mr. Allen did not speak to the police or have any other conversations with them at the police station before or after his interview was captured on videotape.

289At the beginning of making his video statement, Mr. Allen understood the charges against him. He understood that one charge was child luring. These charges were explained by D.C. Wohlert and Mr. Allen understood.

290During the interview D.C. Wohlert also told Mr. Allen about the charge relating to asking for nude photos from someone under 18 years of age. D. C. Wohlert did not say that he was “Jenny”. Mr. Allen did not find this out until the Preliminary Inquiry.

291They had a conversation about the two proceedings – either proceeding summarily or by way of indictment. Mr. Allen thought that if he spoke with D. C. Wohlert, then the police would proceed by way of the less serious process – summarily. But after further conversation, D. C. Wohlert said “You’re on your own”. Mr. Allen thought that if he talked to D. C. Wohlert, maybe D. C. Wohlert would go for the lesser process – by way of summary conviction. When D. C. Wohlert spoke to him about mandatory minimum sentences, he did not know if this was true. He did know that D. C. Wohlert told him about consecutive sentences for mandatory minimum sentencing which could be three years. He was told that this was not good and he was told to be nice to D.C. Wohlert. Mr. Allen got out of his conversation with D.C. Wohlert, the following:

I can help you if you talk to me. I won’t help you if you deny.

292However, Mr. Allen did not know if D.C. Wohlert actually said those words. Referring to an exchange at pages 11, 12 and 13 of Exhibit 12A (transcript of the videotaped statement), Mr. Allen was thinking that D. C. Wohlert could help him out.

293If Mr. Allen did not want to answer questions, he was asked why he changed his mind. He testified that he thought if he kept talking that D. C. Wohlert would help him out. D. C. Wohlert said that Mr. Allen was not a bad person. Mr. Allen thought that after he sat down for the interview, if he talked about some things but not everything, it might go better. He thought that a couple of the charges might be dropped. He thought the police could help him. Duty counsel was just someone talking on the phone – just a voice Mr. Allen did not know.

294At page 49 of the transcript, there is some discussion about whether D. C. Wohlert would come to court the next day. Mr. Allen thought D. C. Wohlert could do something or speak to somebody about Mr. Allen’s release. Again, Mr. Allen thought that the police would help him only if he answered D. C. Wohlert’s questions.

295Mr. Allen acknowledged that when asked if he could be released tomorrow, D. C. Wohlert said that he could not say but that it was up to the Justice. Mr. Allen thought that D. C. Wohlert could help him out by talking to someone and telling that other person that Mr. Allen was not a threat. D. C. Wohlert did not think that he was going to be there but Sergeant Thomas would attend. In Mr. Allen’s mind, he thought that if he did not talk to D.C. Wohlert and denied everything, D.C. Wohlert would not help him out. Mr. Allen thought that Sergeant Thomas had told D.C. Wohlert that Mr. Allen knew “Jenny”. Mr. Allen testified that he told Sergeant Thomas that he did know “Jenny”. He further testified that that prior conversation with Sergeant Thomas had the effect of telling D.C. Wohlert similar things at the videotaped interview. Both officers had said to him that if Mr. Allen said that he knew “Jenny” they would help him out. Mr. Allen testified that the fact that he had previously spoken to Sergeant Thomas about “Jenny” would help him out with D.C. Wohlert.

296Mr. Allen did not know that the conversation with Sergeant Thomas at the house could be used against him in future. He did not know whether or not what he said could be used in evidence against him at trial or by the police at some further time.

297At the end of the conversation with D.C. Wohlert, a female officer entered the room. Mr. Allen recognized her from being approached with another officer when he was in his backyard before entering the house and kitchen area. He also saw her in a picture on the computer. Mr. Allen recognized her face from one of the photos sent to him by “Jenny”. He recognized her face. He recognized her when she came around the house with another officer.

Cross-Examination of Gary Allen

298Mr. Allen testified that earlier on that day, he was repairing boards on his deck. Being June, there was enough light to do his work and it was not dark until around ten p.m. Mr. Allen did see the police come around from the other side of the deck and their presence gave him a big shock and a big surprise. There were other police in front of his house and he was even more shocked. Mr. Allen testified he was totally shocked. He acknowledged that he was a little disoriented by what was going on. He testified he did not understand what Sergeant Thomas was telling him. He did not remember if she explained or read to him the search warrant page by page.

299As soon as the police entered Mr. Allen’s house, that is when they asked if he knew “Jenny” and he said no. His wife was present and he did not want her to know that he knew “Jenny”. At that point in time he did not know if he was arrested and he did not remember Sergeant Thomas reading him his rights. Mr. Allen thinks that P. C. Murray read him his rights only in the rear of the police car. He had never been arrested before. This was the first time that Mr. Allen had been arrested but he had no memory of being arrested. He testified that Sergeant Thomas could have read him his rights but he could not remember her saying “I am arresting you for…”. Mr. Allen does recall that she read “stuff” and he does remember “luring” but he could not remember her saying that he was under arrest. There were so many things going on and it was hard for him to keep things straight. Mr. Allen could not remember if he was under arrest at the time that he went outside onto the deck with Sergeant Thomas. Mr. Allen remembers being showed a piece of paper but does not recall being given his rights to counsel, caution and secondary caution.

300It was Sergeant Thomas who said to go outside. Mr. Allen did not know exactly when this was in relation to reviewing the warrant. He made no notes regarding what happened that day or what was said on the deck.

301Mr. Allen thought it might rain and he had tools on his back deck. He asked if he could put the tools away. This was asked of Sergeant Thomas when they were on the deck. He had a clear memory of that because his saw cost $400. When he said that he did not know “Jenny”, Mr. Allen thought that “maybe” that he did not want his wife to find out that he did know “Jenny”. He then agreed that when he said no, that he did not know “Jenny”, he did not want his wife to find out that he did. That is why Mr. Allen lied when his wife was sitting at the kitchen table. Mr. Allen agreed that he knew that once the police were there because of “Jenny”, his wife might find out a lot more about his connection with “Jenny”, and that “Jenny” was portrayed as a 14 year old girl. It was put to him that if his wife found out about a 14 year old girl conversing with him, she would not be happy at all. Therefore, it was important for him not to speak to the police in front of his wife. Mr. Allen wanted to keep everything out of earshot to his wife. Mr. Allen asked Sergeant Thomas to go out onto the deck under the pretext of putting tools away and that made more sense. He denied all of this.

302Mr. Allen agreed asking what was going to happen to him. He wanted to know where he was going from his home. Mr. Allen agreed that P.C. Murray gave him rights to counsel and a special caution. He understood the caution and that he was not obliged to say anything. Mr. Allen remembers being given the secondary caution and he understood his choice to speak to police. When he arrived at the police station, he spoke with duty counsel and made no complaint to the police about the timing or adequacy of his conversation with duty counsel. He was satisfied with that conversation. His lawyer said not to saying to D.C. Wohlert and he relied on the advice given.

303In his statement with D.C. Wohlert, Mr. Allen agreed that at no point did D.C. Wohlert offer him anything specific. Mr. Allen did not raise his previous conversation with Sergeant Thomas. Mr. Allen did not ask if things could go easier if he spoke. Mr. Allen’s response was he did not think that he had to. He agreed that all officers were polite with him.

304Mr. Allen agreed that in the interview, it is Mr. Allen who says that he is not a sex predator. He told D.C. Wohlert this because he wanted him to know that Mr. Allen was not a predator. This was done not because of any promise D.C. Wohlert gave to Mr. Allen in return for Mr. Allen telling D.C. Wohlert whether or not Mr. Allen was a predator. This was something Mr. Allen volunteered as he wanted the police to know that he was not a predator.

305Mr. Allen recalls D.C. Wohlert telling him that it was Mr. Allen’s right not to say anything, that he was not obliged to say anything. D. C. Wohlert said, “If you want to do that, is your choice, but I’m saying you don’t have…you’re not obligated to say anything. So those are the…the rights that I have to advise you of.” Mr. Allen agreed that D.C. Wohlert told him that Mr. Allen was in a serious position. He agreed that he needed to think carefully about talking to the police at this point after his counsel told him not to say anything to the police, the warning given by D.C. Wohlert having taken place and then D.C. Wohlert telling Mr. Allen that he was in a serious position. Mr. Allen agreed that he wanted D.C. Wohlert to know that this was the only 14 year old girl with whom he had chatted because he wanted the police to understand that this conduct happened only once.

306Mr. Allen recalled the conversation about the two types of offenders D.C. Wohlert had dealt with – the two umbrellas. It was in the context of that conversation that Mr. Allen volunteered that he was not a sexual predator for kids.

307It was at this juncture in the interview (see interview statement at page 12) that Mr. Allen took from the conversation that D.C. Wohlert could help him out. Although D.C. Wohlert does not speak those exact words, this is what Mr. Allen took from their conversation. After saying that he was not spending any time and that he did not know where Mr. Allen thought what category he fell into, Mr. Allen then told D.C. Wohlert that he was not a sexual predator. This did not mean that D.C. Wohlert wanted to get something out of Mr. Allen.

308Further, D.C. Wohlert did not promise that he would attend court the following day and did not promise Mr. Allen’s release. At page 56 of the transcript, “You’re standing up and saying I done it” by D.C. Wohlert was not tied to any promise.

309When asked if he had made any statements in the interview that he did not mean, Mr. Allen said that he did not mean to say that “I did it” not to try to get out of it. This was not said intentionally. He was glad that the interview was coming to an end. Mr. Allen spoke to D.C. Wohlert out of his own volition.

Re-Examination of Gary Allen

310Mr. Allen does not remember Sergeant Thomas reading him his rights. It was all a blur the first few minutes. In terms of a sequence of events, in the kitchen, Sergeant Thomas showed him pictures and he said that he did not recognize the person in them. His wife left the room and that is when Sergeant Thomas said “Let’s go outside”.

LEGAL PRINCIPLES

311The Applicant and Respondent do not dispute the applicable principles that relate to the issue of voluntariness.

312The Applicant acknowledges that for the June 11 video statement to be admitted in evidence at Gary Allen’s trial, it must establish beyond a reasonable doubt that the video statement was made voluntarily.

313The cornerstone of the confessions rule is the concern that involuntary confessions are more likely to be unreliable and if admitted, could contribute to a miscarriage of justice.

314The relevant factors to the assessment of whether a particular statement to a person in authority is voluntary are:

(a) The use of inducements (threats or promises); (b) circumstances of oppression; (c) whether the accused possessed an operating mind at the time the statement was made; and, (d) the use of police trickery.

315With respect to the first factor, the police may often offer some kind of inducement to obtain a confession. This only becomes improper when the inducement, either alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the subject’s will has been overborne while remaining sensitive to the particularities of the individual.

316Further, the overarching concept of voluntariness that lies at the center of the inquiry is that:

…while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness. [emphasis added]¹

317“Circumstances of oppression” touches upon the climate of the interview. If the police create conditions distasteful enough, it should be no surprise that the suspect would confess to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he comes to doubt his own memory, believing the relentless accusations made by the police, and, thus, give an induced confession.²

318In R. v. Oickle, the Supreme Court identified a number of factors such as:

Depriving the suspect of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.³

319The third factor relates to the “operating mind”. The operating mind test requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused.⁴

320The soundness of the decision to speak to a person in authority from the suspect’s perspective is not a consideration. “No inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.”⁵

321The ultimate question is whether or not the trickery or deceit used by police would “shock the community”. Examples cited in R. v. Oickle include having a police officer pose as a chaplain or legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin.⁶

322The voluntariness analysis is an individualized process, to which hard and fast rules cannot apply. The application of the voluntariness rule must be contextual. The position of the Applicant is that an assessment of each of the factors enumerated above leads inescapably to the conclusion that the statements made by Mr. Allen to persons in authority on June 11, 2014, were made voluntarily. As such, they should be declared voluntary and admissible into evidence against him at his upcoming trial.

Summary of the Evidence and Findings

At the Allen Residence

323Sergeant Thomas was present when a telewarrant was received by fax at 7:11 p.m. She testified that it authorized entry into 101 Compton Crescent, Bradford, between the hours of 7:15 p.m. and 11:59 p.m. on June 11, 2014. Sergeant Thomas attended at the Allen residence with other officers to execute the warrant shortly before eight p.m. on that date. Mr. Allen was escorted into the kitchen from the backyard by two officers, one of whom was P.C. Sloan. Sergeant Thomas sat in the kitchen with Mr. Allen while the search was being conducted by other officers. She engaged in questioning of Mr. Allen regarding the offences, prior to Mr. Allen being advised of his rights to counsel. The Crown concedes that this was a s. 10(b) breach of his Charter rights. Mr. Allen was shown two photographs contained in the telewarrant by Sergeant Thomas. He identified those two photographs that formed part of the communication between D.C. Wohlert posing as “Jenny” and “Garry”. She further asked him if he knew who “Jenny” was. He admitted that he did. I find both of these utterances constitute a breach of Mr. Allen’s s. 10(b) Charter rights. The Crown has conceded that these two utterances inadmissible and the Crown does not rely upon these elicited statements.

324Sergeant Thomas then arrested Mr. Allen, read him his right to counsel and cautioned him that he was not required to say anything. I find that it was Mr. Allen who indicated that he understood and then asked Sergeant Thomas if he could speak to her outside on the deck out of the earshot of his wife. It was Mr. Allen’s concern as to whether his wife would know about these charges. This was Mr. Allen’s issue, to which Sergeant Thomas responded that his wife would know.

325At this point, Mr. Allen also asked questions about the bail process, regarding which Sergeant Thomas responded. Further, although Mr. Allen wanted to speak to counsel, the police did not have an opportunity yet to effect the right to counsel.

326While still on the deck, and at this point in time, once Mr. Allen realized that his wife would find out, he said, “I only put an ad on Craigslist for someone over 18 and “Jenny” responded. She told me she was 14, so what was I supposed to do?”

327Sergeant Thomas did not respond to this utterance. Mr. Allen also said under the same circumstances, “Only talking to her and never going to meet her”, to which Sergeant Thomas did not respond.

328I find that Mr. Allen’s utterances on the deck were spontaneous and not elicited by the police. These utterances, post-caution and spontaneous are clearly admissible and not the product of anything other than Mr. Allen’s will to speak. (See R. v. Guenter, [2016] OJ No. 3857 (ON CA) at paras. 58-62.

329There is an issue as to whether these utterances are either admissible or inadmissible as a result of an analysis under s. 24(2).

330Mr. Allen testified that while he and Sergeant Thomas were on the deck, he testified that Sergeant Thomas said, “If you tell us about “Jenny”, we won’t tell your wife”. He testified that Sergeant Thomas brought up the subject of Mr. Allen’s wife. This came up when Sergeant Thomas was talking about whether he knew “Jenny” and that it would be better for Mr. Allen later and the police would not tell Mrs. Allen right now. Mr. Allen remembered Sergeant Thomas telling him that if he acknowledged that he knew “Jenny”, “It would go easier for you later” or words to that effect.

331Sergeant Thomas testified that at no time did she make any threats to Mr. Allen or promise him anything. She did not say to him that if he agreed to speak with her things would be better for him. Sergeant Thomas denied saying to Mr. Allen that if he did not speak to her then things would go badly for him. She did not say to Mr. Allen that it would be beneficial for him if he gave a statement. She did not say to Mr. Allen that the outcome of his bail was contingent on what he said or did not say. Sergeant Thomas testified that Mr. Allen never told her that he did not want to speak with her.

332I accept the evidence of Sergeant Thomas over the evidence of Mr. Allen. It was Mr. Allen who was embarrassed and did not want his wife to find out. Sergeant Thomas indicated that she would find out. She denied the suggestion that she was doing Mr. Allen a favour while speaking out of earshot of his wife. Sergeant Thomas further denied that if he admitted he spoke to “Jenny”, they would not have a conversation in front of Mrs. Allen. She further denied ever having advised Mr. Allen that if he admitted he was the one who spoke with “Jenny”, it would make it easier later if he was going to be released.

333Mr. Allen asked if he could change his clothing. Sergeant Thomas testified that he was accompanied to a bedroom area by D.C. Wohlert so that he could change.

334I prefer the evidence of Sergeant Thomas who testified in a candid and straight forward way. She had prepared careful notes. She acted in a professional way. She dealt with Mr. Allen in a polite, courteous and respectful way. I find that she did not use any inducements, threats or promises in any circumstances of oppression. She was honest and forthright with Mr. Allen and did not use any trickery with him.

335As for Mr. Allen’s evidence, by contrast, I find he had a convenient and selective memory. While he could recall many of the events in his interaction with the police, including events leading up to sitting with Sergeant Thomas at the kitchen table and afterwards on the deck, he drew a complete blank when it came to Sergeant Thomas reading him his right to counsel and cautioning him. He testified that it was very much a blur to offer some explanation for his lack of recall. It is implausible that he would have remembered some interaction with the police but not something as critical as right to counsel and the cautions on the first time that he had ever been arrested.

336In respect of other matters, however, Mr. Allen’s evidence was absolutely clear that Sergeant Thomas and D.C. Wohlert had told him that if he would admit to knowing “Jenny”, things would go easier for him later. He had no difficulty remembering this interaction. I do not accept Mr. Allen’s evidence on these critical points. I find his evidence is unreliable and not credible.

337Mr. Allen went on to testify that in the bedroom while he changed, D.C. Wohlert had also told him that it was good Mr. Allen had stepped up and told Sergeant Thomas about “Jenny”. Further, D.C. Wohlert said “It will help you out later on saying about “Jenny”.

338D.C. Wohlert testified that he did not go up to the bedroom with Mr. Allen. On this point I accept the evidence of Sergeant Thomas. However, I accept the evidence of D.C. Wohlert over the evidence of Mr. Allen regarding any statement made by D.C. Wohlert to Mr. Allen in the bedroom. I accept the evidence of D.C. Wohlert that he did not threaten Mr. Allen so that Mr. Allen would give a statement to him. He offered no deals to Mr. Allen or promises to get Mr. Allen to give a statement. He did not say to Mr. Allen that if he gave a statement, Mr. Allen would receive a benefit. He did not say that if Mr. Allen did not give a statement, there would be detrimental consequences to Mr. Allen.

339It is interesting to note that both Sergeant Thomas and D.C. Wohlert were not cross-examined about these alleged offers by Sergeant Thomas and D.C. Wohlert. I find that there were no inducements, threats, promises or offers extended by these officers to Mr. Allen in order to tell them about “Jenny”.

340I find there was no quid pro quo that things would go easier for Mr. Allen, that the police would try to help them if he told them that he knew “Jenny” or had conversations with “Jenny”. I do not accept that while Mr. Allen did not remember he was not obliged to speak with the police, he did remember that it was in his favour to speak with him. This makes no sense whatsoever. Neither does his lack of memory surrounding his arrest.

Videotaped Statement of Mr. Allen

341Both the Crown and Defence submit that context is very important in determining the issue of admissibility. Mr. Allen submits that as a result of what had taken place earlier at his residence, and in particular, the s. 10(b) breach of the right to counsel and caution, the effects of that breach taint the videotaped statement that he gave to D.C. Wohlert later. The Crown needs to prove that the prior inadmissible statements do not taint the videotaped statement so that that statement amounts to a derived confession and is therefore inadmissible evidence.

342In Mr. Allen’s factum, his position in respect of the tainting of statements can be found at paragraphs 31-38, as follows:

Generally, every statement by the accused offered as evidence must be shown to have been voluntarily made before it can be admitted. In the case where an accused makes a series of statements, the burden falls to the Crown to prove that each statement in the series was made voluntarily in order for them to be admissible at trial. Where one in a series of statements is held to be inadmissible at law (due to a threat or an inducement affecting voluntariness or in violation of right to counsel, for example), subsequent statements may be ruled inadmissible, even where no similar threat or inducement precedes them. Such statements will excluded if they are “tainted” either by the lingering influence of the earlier illegal threat or inducement, or by the making of the prior statement itself. Similarly, if an inculpatory statement is “derived” from earlier evidence that was gathered in breach of the Charter, or from an involuntary statement, it may be excluded as “derived confession”.

Where the accused gives a statement that is inadmissible and later gives another statement that, in isolation, appears to be admissible, the later statement may be “tainted” and inadmissible if it has sufficient connection to the earlier inadmissible statement.⁷

343The later statement will be inadmissible if either:

1. The tainting features which disqualified the first statement continued to be present, or
2. the fact that the first statement was made was a substantial factor contributing to the making of a second statement.⁸

344The tainting element of the earlier inadmissible statement may be either voluntariness or a breach of the Charter rights of the accused.⁹

345In determining whether the later statement was tainted by the earlier statement the court should take a “purposive and generous approach”. No strict causal relationship between the breach and the subsequent statement is required.¹⁰

346To establish tainting of the later statement, the connection between the statements must be temporal, contextual, causal or a combination of all three.¹¹

347The tainting influence may be dissipated before the later statement is given. However, the fact that the accused spoke to counsel between the two statements will not automatically result in a “fresh start” that removes the tainting influence.¹²

348In Lewis¹³, the police took statements from the accused in contravention of his right to counsel, but then allowed him to exercise his right to counsel before taking further audio and videotaped statements. The Ontario Court of Appeal held that later statements were still tainted by the earlier breach. There was a strong temporal connection between the statements, the latter being taken less than three hours after the earlier statements. They were all part of the same interrogation process. The statements themselves were very similar. The court held the later statements should be excluded per s. 24(2) of the Charter.

349It is Mr. Allen’s position that the videotaped statement that he gave to D. C. Wohlert was tainted as a result of inadmissible utterances made by him at his residence. These inadmissible utterances rendered the videotaped statement inadmissible because the later videotaped statement was tainted by the earlier breach. Further, Mr. Allen submits that there were other problematic interactions between himself and D.C. Wohlert on the interview, which standing alone, would have rendered the videotaped statement inadmissible.

350For the following reasons, I reject the argument that the videotaped statement is tainted by the breaches which occurred at the Mr. Allen residence. Further, I do not agree that standing alone, the videotaped statement was problematic so as to render it inadmissible. I have already reviewed the evidence of Sergeant Thomas, Mr. Allen and D.C. Wohlert regarding the events which took place at the Allen residence in the kitchen and on the deck. I have found the interaction between the police and Mr. Allen is devoid of any use of inducements, threats or promises. There are no circumstances of oppression. Whether Mr. Allen possessed an operating mind at the time that he made his utterances is conceded by Defence counsel as not being in issue. As for the use of police trickery, there is evidence of none.

351The absence of any such evidence is consistent with the way that Mr. Allen was treated by D. C. Wohlert in his videotaped interview. That interview is devoid of any follow-up discussion regarding any inducements allegedly offered by either D.C. Wohlert or Sergeant Thomas. It is neither raised by Mr. Allen nor D.C. Wohlert in the interview, that is, if you tell the police about “Jenny”, the police would help and it would go easier for Mr. Allen. There is nothing in the nature of an inducement, threat, promise or offer allegedly made by the officers which migrated into the interview process rendering the statement inadmissible.

352Mr. Allen testified that he thought it would go easier for him at the police station with the possibility that the police would let him go or drop the charges against him. Mr. Allen thought that after he sat down for the interview, if he talked about some things but not everything, it might go better. He thought that a couple of the charges might be dropped. He thought the police could help him. Mr. Allen thought D.C. Wohlert could do something or speak to somebody about Mr. Allen’s release. Mr. Allen thought that the police would help him only if he answered D.C. Wohlert’s questions. He thought that D.C. Wohlert could help him out by talking to someone and telling that other person that Mr. Allen was not a threat when the matter came before the court the following day. In Mr. Allen’s mind he thought that if he did not talk to D.C. Wohlert and denied everything, D.C. Wohlert would not help him out. Mr. Allen thought that Sergeant Thomas had told D. C. Wohlert that Mr. Allen knew “Jenny”. Both officers had said to him that if Mr. Allen said he knew “Jenny” they would help him out.

353What Mr. Allen had in his mind was based on absolutely no evidence of any inducements, threats, promises or offers made by Sergeant Thomas or D.C. Wohlert. Rather, neither officer said anything to the effect that if Mr. Allen provided a statement then there would be a benefit to him or a detriment if he did not. There was no quid pro quo. What he thought the police could or would do for him was merely an internal hope that he possessed.

354At paragraph 57 in R. v. Oickle, the court cites R. v. Rennie, as follows:

Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case, the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

355The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

356As I have found, in this case, there is no such quid pro quo. Further, thinking that there was any such quid pro quo is all in Mr. Allen’s mind and not based upon any evidence whatsoever.

357In this case, Mr. Allen was treated properly and with respect by the police at all times. Again, this is consistent with the conduct of the police in the way that Mr. Allen was treated throughout his entire dealings with the police.

358Turning to the interview itself, I find there was no exploitation of a fear that his wife would find out about his situation. Both Sergeant Thomas at the residence, and D.C. Wohlert at the interview, told him that his wife would find out. D.C. Wohlert treated Mr. Allen respectfully at the interview. Mr. Allen told D.C. Wohlert that duty counsel advised Mr. Allen not to speak to the police. D.C. Wohlert understood what Mr. Allen had told him and at no time did D.C. Wohlert undercut or belittle the advice that Mr. Allen obtained from duty counsel. D.C.Wohlert repeated that Mr. Allen did not have to say anything to the police unless he wanted to. D.C. Wohlert explained the charges Mr. Allen was facing. He told Mr. Allen that these charges are dealt with either summarily or by way of indictment, but most often by way of indictment. Mr. Allen understood his jeopardy, that he was facing serious charges. It is true that D.C. Wohlert had incorrectly told Mr. Allen about consecutive sentences and he was also wrong about legislation not yet passed and sections of the Criminal Code that did not apply to Mr. Allen’s circumstances in any event. Although, it would have been better if D.C. Wohlert had been entirely accurate in what he told Mr. Allen about consecutive sentences and tougher legislation in respect of the kinds of charges Mr. Allen was facing, D.C. Wohlert’s misstatement in and of itself did not render the videotaped statement inadmissible. Rather, upon viewing the videotaped statement and reading the accompanying transcript, it becomes very evident that Mr. Allen wanted to tell the police what he did. He chose to do so because he wanted the police to understand the type of person that he was and more importantly, what type of person he was not. He repeatedly told the police that “Jenny” was the only 14 year old girl with whom he had conversations. He told the D.C. Wohlert he was not a sexual predator. He told D.C. Wohlert that he “Just kinda got caught up in it”. Mr. Allen made these statements to show D.C. Wohlert that Mr. Allen belonged in the milder category of offender. Mr. Allen wanted to talk and he was never reluctant to talk. It is clear that the police did not overcome his will. Mr. Allen, of his own free will, chose to tell the police what had happened so that the police would fully understand that Mr. Allen was not a bad person, that this was only a one-time event with one 14 year old girl and that he got caught up in the conversation – all to minimize his conduct.

359These are themes that run through the videotaped statement and are consistent with Mr. Allen’s conduct at his residence. These themes are inconsistent with Mr. Allen’s will being overridden by alleged offers by the police. The evidence is devoid of any such offers.

360For these reasons, I find that there is no tainting or derived confession that would render the videotaped statement inadmissible. Further, there are no deficiencies, which would render the videotaped statement, standing alone, inadmissible.

Disposition

361Accordingly, for these reasons, I find that the Crown has satisfied its onus to prove beyond a reasonable doubt that Mr. Allen’s videotaped statement of June 11, 2014 is voluntary. Accordingly, I rule that Mr. Allen’s videotaped statement of his interview with D. C. Wohlert on June 11, 2014, is admissible evidence at trial.

THE CHARTER APPLICATION

362Mr. Allen seeks the exclusion of his subscriber information obtained from Bell Canada without a warrant pursuant to ss. 8 and 24(2) of the Charter. He also seeks a declaration that the warrant issued to search his residence on June 11, 2014, was invalid and the exclusion of evidence gathered as a result of that search pursuant to ss. 8 and 24(2) of the Charter.

363Further, Mr. Allen seeks the exclusion of evidence gathered as a result of a search of the hard drive of his computer between December 2014 and February 2015 which he asserts was not authorized by law pursuant to ss. 8 and 24(2) of the Charter.

364Mr. Allen asserts that his s. 9 Charter rights were violated. Lastly, he seeks the exclusion of a videotaped statement made by him on June 11, 2014 to D. C. Wohlert, pursuant to ss. 8, 9, 10(b) and 24(2) of the Charter. He submits that the following constitutional principles are in issue:

1. His right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter.
2. His right not to be arbitrarily detained pursuant to s. 9 of the Charter.
3. His right upon arrest or detention to retain and instruct counsel without delay pursuant to s. 10(b) of the Charter.
4. His right to a remedy pursuant to s. 24 of the Charter.

OVERVIEW

365The summary of the facts regarding the Charter Application is similar to that summary set out in respect to the Voluntariness Application with the exception of the following additions:

• D. C. Wohlert sought a telewarrant at approximately 6:30 p.m. on June 11, 2014
• The notes of D. C. Wohlert indicate that he attended the Allen residence at 7:54 p.m. on June 11 with a number of officers and commenced a search.
• A computer hard drive and cellular phone were seized from the residence.
• Portions of the conversations between “Garry” and “Jenny” were located on the computer during the search at Mr. Allen’s residence.
• Mr. Allen’s computer was held and the hard drive was eventually copied and searched between December 2014 and February 2015.

366In addition, the Crown adds that D. C. Wohlert testified that based on his experience as an investigator, the “personals” section of Craigslist is a notorious predatory site for exploiters of children. The officer has conducted approximately 81 investigations into child sexual exploitation over the last four or five years in which he poses as a child, out of which he has made 12 arrests. In all 12 cases, a conviction resulted.

POSITION OF THE PARTIES

367The positions of the parties will be dealt with relative to each of the Charter issues being addressed.

SECTION 8 OF THE CHARTER

368Section 8 of the Charter provides:

Section 8 – Everyone has the right to be secure against unreasonable search or seizure.

Position of the Applicant, Allen

369Mr. Allen submits a number of grounds which rendered the telewarrant invalid and as a result, any search and information obtained pursuant to such an invalid warrant was illegally obtained and therefore inadmissible. He attacks the telewarrant on the following grounds:

(1) His subscriber information from Bell Canada was a violation of his s. 8 rights pursuant to the Supreme Court of Canada decision in R. v. Spencer, 2014 SCC 43, [2014] S.C.J. No, 43. (2) The information to obtain (ITO) provided insufficient grounds to satisfy the required elements necessary for issuance in respect of the things to be searched for at the location in question at the time the warrant was issued. This part has two subcomponents: (a) Whether the telewarrant on the face of the ITO was invalid. (b) Whether D. C. Wohlert’s evidence was sufficient to demonstrate that the thing (computer) would be present in Mr. Allen’s residence at the time of the issuance of the warrant. (3) The use of the telewarrant procedure was improper. (4) The telewarrant did not authorize later or subsequent searches. (5) The manner in which the search warrant was executed violated his Charter rights.

370Mr. Allen submits that these cumulative Charter breaches demonstrate a pattern of conduct on the part of the police which cannot survive a s. 24(2) analysis. He submits that the telewarrant is invalid and any information obtained by the police pursuant to the invalid warrant is inadmissible.

Position of the Respondent Crown

371The Crown concedes the s. 8 violation arising out of the use by the police of a Law Enforcement Request to secure ISP subscriber information from Bell Canada in relation to Mr. Allen’s account. The Crown does not concede that evidence acquired as a result of the invalid telewarrant (the Spencer breach) is inadmissible. Rather, the s. 8 breach, when subjected to a s. 24(2) analysis survives that analysis and evidence obtained as a result of the telewarrant is admissible.

372The Crown submits that there were sufficient grounds to issue the telewarrant. Further, the telewarrant process was proper in all of the circumstances.

373The Crown submits that when all of the Grant factors are balanced, this court ought to find that the evidence obtained from the computer search is admissible evidence and its admissibility is in the interest of justice.

374The Crown further submits that no further search warrant was required in the circumstances of this case.

375Apart from the s. 8 breach (the Spencer breach), the Defence submits that the ITO did not set out sufficient grounds to satisfy required elements in order to establish valid issuance. In order to be valid, a search warrant must specify the place to be searched, the items to be seized and the offence[s] under investigation. The grounds, set out under oath, will allow a Justice to make a judicial determination as to whether or not a warrant should issue. The place to be searched must be clearly set out and have an articulated connection to the offences being investigated. When there is no connection between the items sought and the offences, as set out in the warrant, then the warrant is facially invalid and the search is therefore warrantless.¹⁴

376The elements of a valid warrant, like the elements of an offence, are the particular facts or circumstances that must exist before the warrant can issue. For example, before a s. 487 warrant can issue, there must be reasonable grounds to believe that the following elements are present:

1. An offence (or offences) against the Criminal Code or other federal statute has/have been committed.
2. The things to be seized are in an identified building, receptacle or place at the time the warrant issues.
3. The things to be seized physically exist.
4. The things to be seized: (a) will afford evidence with respect to the commission of an offence; (b) are something on or in respect of which the offence was committed; (c) will reveal the whereabouts of a person who is believed to have committed the offence; or (d) offence-related property.

377The sufficiency of the grounds is assessed based on the content of the ITO as a whole. It should address the following questions:

1. What are the grounds to believe the items to be searched for exist?
2. What are the grounds to believe that the items to be searched for are at the place to be searched?
3. What are the grounds to believe that an offence has been committed as described?
4. How will the items to be searched for afford evidence of the commission of an offence as alleged?
5. What are the grounds to believe that the place to be searched is at the location identified?

378The “reasonable grounds” standard, in the search warrant context, requires that “suspicion” be replaced by “credibly-based probability” that an offence has been committed and that there is evidence to be found at the place of the proposed search. Thus, the reasonable grounds standard requires a credible foundation that makes it reasonably probable, in all of the circumstances, as opposed to a “possibility” that evidence of an offence will be found in the place of the search. Accordingly, a warrant can issue where the facts, as set out in the ITO, permit reasonable inferences in respect of criminal conduct and recovery of evidence.^{15 16 17}

379The statutory provisions provide authority to issue a warrant if a Justice is satisfied that the belief of the Applicant for the warrant is reasonable, not because a Justice is satisfied that the Applicant believes that reasonable grounds exist. Accordingly, the affiant must set out sufficient facts in the information to enable the Justice to form an independent judicial opinion that the requisite grounds exist; a Justice cannot issue a warrant simply because a police officer swears that he or she has reasonable grounds to believe that evidence is located in a particular location.¹⁸

380Accordingly, the ITO should clearly set out the information known to the police, the source of that information and how it fits into the formation of the officer’s reasonable belief. This is preferable to mere conclusions such as “police investigation has revealed…” or “based on my investigation I have concluded…”. More generally, the information should outline the nature of the investigation, including physical surveillance of the premises, interviews with witnesses, forensic analysis, the results of any previous searches, statements made by the target, etc.¹⁹

381The information may contain hearsay, but it must be presented in such a way that it will allow the Justice to make up his or her own mind about the trustworthiness of the source. It may contain information that would not be admissible in a criminal trial including prior criminal convictions and discreditable conduct, if relevant to the application.

382It is submitted by Mr. Allen that paragraph 47 of the ITO at page 55 (Affidavit of Mindy Wagner, Appendix ‘A’) can be found under “Grounds to believe that things to be seized are at the place to be searched.” It is submitted that paragraph 47 is deficient where D. C. Wohlert draws two conclusions which have no foundation. Firstly, he concludes that emails were sent by a computer system. He comes to this conclusion on the basis of other Craigslist investigations that he has conducted. In those investigations if a cellular device is used the email message identifies that a cellular device was used. In this investigation that was not the case. He also concludes that Mr. Allen can only email D. C. Wohlert after four p.m. when Mr. Allen can get internet service. D. C. Wohlert goes on to say that this is consistent with Mr. Allen finishing work for the day and returning to his residence.

383In respect of the first conclusion, it is submitted that D. C. Wohlert did not follow up to confirm a computer device was used. He conducted no further investigations in this case about whether a device or the Craigslist system created the identifier that a cellular device was used.

384In respect of the second conclusion, it is submitted that perhaps with the exception of one email, there is no evidence that Mr. Allen can only email after four p.m. when he gets internet service. It is submitted there is no evidence as to where Mr. Allen worked, what he did for employment, when he left work to return home, and whether or not there was any internet access available to him at any time during the day or after four p.m. Mr. Allen asserts that the conclusion that his internet use is consistent with his finishing work for the day and returning to his residence is not supported by any evidence.

385It is submitted that there is no objective foundation for D. C. Wohlert’s claim in the ITO based on evidence. There is no sufficient objective foundation for these conclusions – only suspicion. These are bold assertions made without objective factual foundation insufficient for the warrant to issue. Further, once this information is excised, all that is left in the ITO is that a device at the residence posted an advertisement on Craigslist on April 13, 2014. It is submitted that under these circumstances, the contents of the chats ought to be excepted. It is submitted there is an insufficient factual basis in the ITO for the issuing Justice or the reviewing court (this court) to find reasonable grounds for things to be seized located at the place to be searched, 101 Compton Crescent, Bradford, on June 11, 2014.

386I disagree. For the following reasons this argument must fail.

387In addition to the statement of facts relied upon by Mr. Allen, the Crown adds that D. C. Wohlert testified at the Preliminary Hearing and on the Voir Dire based on his experience as an investigator. He testified that the “personals” section of Craigslist is a notorious predatory site for exploiters of children. At the Preliminary Hearing, D. C. Wohlert testified that he conducted approximately 81 investigations into child sexual exploitation over the years in which he posed as a child. As a result he made 12 arrests and in all 12 cases a conviction resulted.

388I do not agree that the ITO was insufficient and that D. C. Wohlert’s evidence was nothing more than mere conclusions based on either suspicion or conjecture.

389I find that D. C. Wohlert is an experienced police officer who has spent many years working in the Child Sexual Exploitation Unit, a specialized unit of the Ontario Provincial Police. The issuing Justice is entitled and required to take into account all information from D. C. Wohlert and to determine whether there were reasonable grounds to believe that a computer would be at Mr. Allen’s residence located at 101 Compton Crescent, Bradford, Ontario.

390D. C. Wohlert testified that his chats were conducted with a Craigslist subscriber who had posted an ad on April 13, 2014. D. C. Wohlert had obtained the subscribers information. That subscriber information led to an “open source” search which produced an IP address associated with Mr. Allen’s home address.

391In the ITO, D. C. Wohlert included luring chats with “Garry” up to 16 hours prior to the writing of the ITO which continued from April 13, 2014 via Craigslist.

392In the ITO, D. C. Wohlert indicated that none of the messages in question were labeled or sent from a cellular device. He believed that the messages were exchanged by computer – through a subscriber at the Allen residence.

393Further, D. C. Wohlert told the Justice that there were times when Mr. Allen could not talk because he did not have access to the internet or was working. This is supported by the evidence of the chats in their entirety. (Also see email 55 and email 267)

394I find that the totality of the circumstances give rise to reasonable inferences that D. C. Wohlert properly made, as set out in paragraph 47 of the ITO. I find that there were grounds to believe that a computer to be seized would be found at Mr. Allen’s home at the time of the issuance of the telewarrant.

The Use of the Telewarrant Procedure

395The telewarrant procedure may not be used by the police as a matter of preference or as an alternate method of obtaining a warrant. The police are required to apply for a warrant in person unless it is impracticable to do so, per ss. 487.1(1), 487.1(4)(a), 487.1(5)(b) of the Criminal Code. More specifically, a telewarrant may be issued only where the issuing justice is satisfied that the information includes “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice” and that the information “discloses reasonable grounds for dispensing with an information personally and in writing”, per s. 487.1(5)(b).^{20 21}

396The impracticability of applying for a search warrant in person is informed by the availability of a Justice, as well as by the urgency for obtaining a warrant immediately. However, “impracticability” is also informed by “common sense”, and it is not the same as “impossibility”. The “impracticability” requirement may be met where there exists a valid reason for proceeding immediately, regardless of the fact that an application might have been made in person a few hours later. The police do not have to organize themselves to avoid using the telewarrant procedure.^{22 23 24}

397While the “impracticability” requirement has some degree of flexibility, a proper foundation to satisfy the requirement must be provided, including a sufficient statement of the circumstances that make it impracticable to appear personally, per s. 487.1(4)(a). Thus, a telewarrant has been invalidated where the information contained a ‘bald assertion’ that it was impracticable to appear personally because no Justice was available locally, but the affiant failed to explain the basis for the assertion or the impracticability of appearing before a Justice elsewhere.^{25 26}

398In issue is whether there was sufficient information in the ITO, modified or corrected by the evidence on the Voir Dire, to justify the use of a telewarrant.

399Mr. Allen submits that the only statement in the ITO regarding the necessity of using a telewarrant was the fact that no siting Justice of the Peace was available on the evening when the telewarrant was sought. There was nothing in the evidence that spoke to necessity of using the telewarrant process. There was nothing in the evidence to suggest any urgency required in the execution of the warrant or any concern that evidence would be destroyed or lost. It is submitted that the telewarrant was obtained by the police solely out of a sense of convenience. D. C. Wohlert simply presented the bald assertion without explanation as to the use of the telewarrant. The meeting between “Garry” and “Jenny” was not going to take place at a park in Innisfil and there was no sense of urgency for a telewarrant to issue in order to deal with that non-event. Accordingly, it is submitted that the telewarrant was improperly used as a means of conducting search and seizure.

400I disagree. For the following reasons this argument must fail.

401D. C. Wohlert was the lead investigator in this case and was responsible for writing the request for a search warrant. At the same time, others in his unit were responsible for investigations running concurrently to this one in Barrie, St. Catharines and Kitchener. Those investigations had resulted in three recent arrests. Mr. Allen had just backed away from a meeting with “Jenny”. D. C. Wohlert had concerns that Mr. Allen may already have been or would be forewarned about the investigation through publicity about the arrests. He was concerned about the possible loss or disappearance of evidence. However, he agreed that concern is always present in these types of investigations.

402The evidence of Sergeant Thomas and D. C. Wohlert is that D. C. Wohlert tried to prepare the paperwork as expeditiously as possible in order to get the warrant quickly. However, he was not able to complete the necessary application before the close of court on June 11, 2014. Previously, Sergeant Thomas had made inquiries of the court and found that no Justice of the Peace would be available after 3:30 p.m. The necessary application was not completed by D. C. Wohlert until after six p.m. He testified that persons arrested in the other investigations, for the most part, had been processed through the court at Barrie. It made sense to D. C. Wohlert to go to the Justice in Barrie to obtain the telewarrant in all of the circumstances.

403I find that there is nothing in all of the evidence that would suggest that the telewarrant process was improperly used and therefore resulted in an invalid issuance of such a warrant.

404The evidence of D. C. Wohlert establishes that he did disclose that obtaining a regular warrant would be impractical and why it would be so. He did not feel that the telewarrant was necessary or any warrant was necessary on June 11, 2014 because it was impracticable to attend upon the Justice of the Peace’s office in person. There is absolutely no evidence that D. C. Wohlert was engaged in a failure to disclose to the Justice of the Peace and was involved in some kind of subterfuge designed to mislead the Justice of the Peace. Quite to the contrary, I find that the telewarrant process was properly available to D. C. Wohlert in all of the circumstances. There was nothing in his conduct that deserves the condemnation of the court. D. C. Wohlert testified that he only sought a telewarrant twice in ten years as a member of the Child Sexual Exploitation Unit. This suggests that D. C. Wohlert knew that the telewarrant process was a special procedure and not a device to circumvent the legal requirements of obtaining a regular warrant. D. C. Wohlert knew what he was doing and any “convenience” achieved by proceeding by way of telewarrant did not amount to misconduct on the part of the police that would result in an invalid warrant. This is also not the type of State misconduct deserving of repudiation when considering the first branch of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. I find that D. C. Wohlert’s use of the telewarrant process was proper. In and of itself, there was no deceptive conduct on his part that would have resulted in the issuance of an invalid telewarrant.

Night Entry

405Mr. Allen also submits that what occurred in this case was a night search for which the police did not have reasonable grounds for the warrant authorizing execution by night. The Crown maintains that this was a daytime entry and not a night time search. The police attended the residence of Mr. Allen shortly before eight p.m. The Crown relies upon the Ontario Court of Appeal decision in R. v. Woodall, [1993] O.J. No. 4401. The court held that the police were required by the terms of the warrant to enter the premises before nine p.m. They did so. The warrant did not require that the search be completed before nine p.m. The court held that the failure to complete the search by nine p.m. did not invalidate the warrant.

406In our case, the time authorized by the telewarrant was between the hours of 7:15 p.m. and 11:59 p.m. on June 11, 2014. The police were authorized to attend and search Mr. Allen’s residence within that period of time. They did so. For these reasons, the police were authorized under the telewarrant to attend Mr. Allen’s residence during day time without the necessity of obtaining a night time warrant.

What the Telewarrant Specifically Authorized

407Mr. Allen submits that the Justice issuing the telewarrant prescribed the limits of search. At page 50 of the ITO (Affidavit of Mindy Wagner, Appendix ‘A’) can be found what the police wanted to do under the heading, “Grounds To Believe, Things To Be Seized Will Afford Evidence Of The Offence”. Specifically, at paragraph 45, D. C. Wohlert sets out that the police wished to seize items at Appendix ‘A’ to identify that Mr. Allen was the person using the Craigslist number 4421152680 and that a forensic examination of the computer will locate any saved emails, locate the Craigslist number as well as the messages to “JennyW”. D. C. Wohlert went on to say that the images listed in Appendix ‘A’ will be stored on the computer hard drive and will be forensically recoverable. Further, at paragraph 44, D. C. Wohlert indicated that these images would identify the computer used in the Craigslist emails between Mr. Allen and “JennyW”. He stated “a forensic examination of the computer system will locate this evidence”.

408At paragraph 45 (a) to (j) D. C. Wohlert indicated what the detectives of the Technological Crime Unit of the Ontario Provincial Police were searching for.

409Sub-paragraph (j) reads:

This examination is one of many cases that the Technological Crime Unit conducts as part of their investigative services. All cases are placed in queue and will be examined as time permits. This time period could be several weeks to several months. The seized exhibits in this case will be secured in the Technological Crime Unit vault until they are examined in a forensic laboratory.

410Mr. Allen submits that nowhere in Appendix ‘A’ in the ITO does it say that the computer is to be searched, seized and analyzed at a later date. There was no prior judicial authority to seize and there was no authority to search the computer offsite later (either February 2015 or October 2015). As such the search was warrantless and must be justified by the Crown.

Searches of Computers

411Mr. Allen relied upon the Supreme Court of Canada decisions in R. v. Morelli, 2010 SCC 8, 2010 S.C.C. 8, at paras. 1-3 and R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 23 and 24 set out in the Applicant’s factum as follows:

This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure. And it relates, more particularly, to the search and seizure of personal computers.

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.

412In Vu, the Supreme Court of Canada dealt with the searches of computers not specifically authorized by a search warrant issues in relation to a search for other items. The court held as follows:

I accept the general proposition, as stated by the Court of Appeal, that “[a] warrant authorizing a search of a specific location for specific things confers on those executing that warrant the authority to conduct a reasonable examination of anything at that location within which the specified things might be found (para. 53). In other words, specific. In other words, specific prior authorization to search anything at that location is not required. The question is whether this general proposition applies to computers or whether specific, prior authorization to search a computer is required.

The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the lace of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view.

413The court further held that s. 8 requires that the privacy interests inherent in computers require that those interests be taken into consideration prior to any search to ensure that the intrusion into a person’s individual privacy is justified. “In effect, the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place.”²⁷

414When discussing the manner in which computer searches are authorized the court held that detailed search conditions or protocols were not strictly necessary. However, the searches will be subject to after-the-fact review. The police must not scour devices indiscriminately; they are bound to search in a reasonable manner as with any other type of search. The requirement that a search be conducted in a reasonable manner ensures that the search is “no more intrusive than is reasonably necessary to achieve its objectives.”

415Mr. Allen further relied upon the Ontario Court of Appeal decision in R. v. Jones, (2011) 2011 ONCA 632, 107 O.R. (3D) 241. The court held at para. 25:

[25] In addition, I do not accept the Crown’s argument that the warrant authorized the search because a computer is an indivisible object which, like pieces of physical evidence, can be tested and inspected in whatever ways the police deem necessary once lawfully seized under the warrant. I also reject the somewhat connected suggestion that because the right to seize a computer would be a hollow one without the ability to examine [page 250] its contents, it must follow that the police are entitled to examine the entirety of the contents.

416Mr. Allen also relied upon the decision in R. v. Sonne, [2012] ONSC 1463 at para. 4. In Sonne, s. 8 of the Charter was violated where, on the wording of the search warrant, the police had authority to search computers for records related to an explosives offence connected to the G8/20 Summits, but had no authority to seize the computers and had to conduct a search within four days of the issuance of the warrant and the s. 8 breach. Spies J stated:

The search warrants [dated June 23, 2007] did not expressly authorize the seizure of computers and the removal of those computers from E[…] Drive. Rather, they authorized a search for and seizure of certain types of electronic records on specified devices, including computers, and during a fixed timeframe, namely until 9:00 p.m. on June 27, 2010.

417Also cited was R. v. Little, [2009] O.J. No. 278 at para. 147 regarding the search of computers by police.

418The Crown submits that the search warrant was properly authorized and properly executed. Apart from the Spencer breach, there was no other violation of Mr. Allen’s s. 8 Charter rights.

The Manner in Which the Search Warrant was Executed

419Mr. Allen submits that the manner in which D. C. Wohlert proceeded was lax, careless and even negligent. While he was aware that the telewarrant had been obtained prior to the decision being delivered by the Supreme Court of Canada in Spencer, he took no steps to question whether he was dealing with an invalid warrant. He came to learn of the Spencer decision within a few days or a week after it had been rendered. Yet, he took no steps to reconsider the validity of the telewarrant. He instructed Ms. Pesenko to proceed with her later search of the computer. She did so pursuant to the telewarrant. These assertions on the part of the Defence are properly considered in respect of the s. 8 breach and s. 24(2) of the Charter.

Section 8 and Section 24(2)

420The position of Mr. Allen is that the conduct of the police and the cumulative effect of Charter breaches rendered evidence obtained under the telewarrant inadmissible.

421The Crown submits that the evidence obtained under the telewarrant, notwithstanding the s. 8 breach of the Charter (the Spencer breach) is nevertheless admissible under s. 24(2) of the Charter.

422Given the concession that Mr. Allen’s s. 8 Charter rights were breached and this court’s finding that those rights have been violated (the Spencer breach), it is necessary to determine whether the evidence acquired as a result of the execution of the telewarrant derived from the search of Mr. Allen’s computer should be excluded.

423Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter the evidence shall be excluded if it is established that, being regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

424As a result of the illegal search and seizure, the police seized Mr. Allen’s computer, cell phone and Toronto Maple Leafs sweater. The cellular phone was later returned as it did not further the police investigation. The computer and the Toronto Maple Leafs sweater were not returned. The Crown maintains that the computer produced images of the 509 email chats between “Garry”, later identified as Mr. Allen, and “JennyW”, D. C. Wohlert posing as a 14 year old girl. The Toronto Maple Leafs sweater figures into chats as they are tied to a photograph of “Garry” wearing the sweater (hoodie) and holding up three fingers. Mr. Allen submits that the search was illegal and any evidence obtained by way of the illegal search and seizure ought to be excluded.

425The Crown submits that a review and balancing of the factors set out by the Supreme Court of Canada in R. v. Grant, supra, establishes that the administration of justice would not be brought into disrepute by the admission of the seized evidence.

The approach to s. 24(2) of the Charter

426Section 24(2) requires that evidence be excluded where, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. In the majority opinion in R. v. Grant (supra) the Supreme Court of Canada held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice, and not to punish the police or compensate the accused. The provision focuses not on immediate reaction to the individual case, but rather on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The question, as framed by the majority at para. 68, is an objective one:

[W]hether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

427The majority determined that a judge faced with an application for exclusion of evidence under section 24(2) must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to three factors:

(i) the seriousness of the Charter infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in the adjudication of the case on its merits.

428The judge must consider each of the three factors, then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

The seriousness of the Charter infringing state conduct

429The first factor involves an assessment of whether admission of the evidence sends a message to the public that courts condone serious state misconduct. Accordingly, “the most severe or deliberate state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”: see Grant at para. 72.

430The majority observed that state conduct that infringes the Charter varies in seriousness, from inadvertent or minor violations, through to wilful or reckless disregard of Charter rights. The former may minimally undermine public confidence in the rule of law, while the latter will “inevitably” have a negative effect and risk bringing the administration of justice into disrepute: see Grant at para. 74.

431Deliberate police conduct and violation of Charter standards will tend to support exclusion of the evidence, as will wilful or flagrant disregard of the Charter, or evidence that the conduct was part of a pattern of abuse. Good faith on the part of the police or extenuating circumstances such as the need to preserve evidence may attenuate the seriousness of the conduct.

432The Crown submits that the first prong of the Grant test, the seriousness of the breach, favours the admission of the evidence. It is submitted that the conduct of the police in obtaining the subscriber information was lawful at the time.²⁸

433D. C. Wohlert applied for the warrant based on the information provided by Bell Canada directly, notwithstanding that he was aware of the decision in Spencer. He did so because the option he chose was still open to him to use, that is, legal at the time. He governed himself by the usual practice until after the Supreme Court of Canada`s decision required that he do otherwise. His evidence was that since the Spencer decision, the practice in his unit has changed in conformity with the Spencer decision.

434The Crown relies upon the comments of the Supreme Court of Canada in R. v. Fearon, which are applicable in this case. At paragraph 95 of that decision, the court stated:

In my view, the first factor favours admission of the evidence. There is not even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to dissociate itself from the conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of the evidence.²⁹

435The Crown also relies upon Spencer at paragraph 77 where the court held that the seriousness of the state conduct could not be characterized as constituting either “wilful or flagrant disregard of the Charter.”

436Both cases stand for the proposition that where the police are acting lawfully on the day that they obtained the warrant, police action does not amount to state misconduct which requires the exclusion of evidence.

437I find D. C. Wohlert and Sergeant Thomas for that matter were acting by what they reasonable thought were lawful means to pursue an important law enforcement purpose. I reject the characterization of D. C. Wohlert’s conduct as being careless, lax, cavalier, or negligent in the pursuit of his duties. I find the Spencer breach is not so serious that would require the exclusion of evidence.

438There are a number of other factors that militate in favour of evidence inclusion as follows:

• The presentation of a case to be made by D. C. Wohlert to search Mr. Allen’s residence before an independent judicial officer to obtain a telewarrant demonstrates respect for the constitutional rights of the resident, Mr. Allen.
• The specific power to search the computer after it was seized was sought and obtained. The law of whether or not specific authorization can be granted to search a computer after seized is not well settled. (See R. v. Vu, supra, at paras. 47-48. Also, once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Criminal Code which allows them to search, reproduce and print data that they find.

439In Vu at para. 49, the court held:

If police come across a computer in the course of a 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 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.

440However, in R. v. Ballendine, 2011 BCCA 221, 2011 B.C.C.A. 221, at para. 69 and 70 the British Columbia Court of Appeal held as follows:

[69] The situation in the case at bar is far removed from Vu. Here there were reasonable grounds to believe that the Old Esquinalt premises were being used as a residence. There were also reasonable grounds to believe that a computer used in the commission of the offence being investigated would be found there. As well, the Justice of the Peace was made aware that an on-site forensic examination of any computer would be impracticable. Far from being implicit, the warrant expressly authorized the police to “search for an seize” amongst other things, computers.

[70] In this