COURT FILE NO.: CR-14-0586-00
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Gregory Hendry, Counsel for the Crown
Respondent
- and -
AYMANN ELHAKIM
Amanda Somek, Counsel for the Applicant
Applicant
HEARD: February 26 to March 1, 2018
ADMISSIBILITY RULING
D.E HARRIS J.
[1] The applicant, charged with making available child pornography (Section 163.1(3) of the Criminal Code R.S.C. 1985, c. C-46), possession of child pornography (Section 163.1(4)) and accessing child pornography (Section 163.1(4.1)), makes application to exclude, under Section 24(2) of the Charter, evidence obtained from the search of his home and digital devices.
[2] A warrant was obtained for the search. The information to obtain (ITO) the warrant was based on an on-line investigation by the informant police officer to determine whether there were any local computers or digital devices accessing or offering child pornography. Discovering that there was one such computer that was storing child pornography and offering to share it with others, the officer downloaded one still photograph and one small snippet of a movie clip. He then reached out to the Internet Service Provider (ISP), Rogers Communications, and was informed that the internet protocol (IP) for the suspect computer was associated with the applicant at an address in Mississauga. A search warrant was sought and executed for that address.
[3] This factual foundation runs almost exactly parallel to that in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 and, for that reason, the law enunciated there applies in this instance as well. The Supreme Court in Spencer held that the police, in making the request and receiving back the information from the ISP, violated the applicant’s right to privacy and his Section 8 Charter right to be secure from unreasonable search or seizure. There was a reasonable expectation of privacy in the name and address of the person which the ISP linked with the IP address. This information unveiled the identity of the computer user and his on-line activities, contrary to his reasonable understanding that he would remain anonymous: Spencer, at para. 66.
[4] However, the police in this case did not have the benefit of the law articulated in Spencer. This search was executed in early 2013, the year before Spencer was released. As in Spencer, it is indisputable that without the subscriber information from Rogers, the search warrant could not have been granted. No identification of the identity or address of the applicant would have been possible. The search was therefore unlawful, hence unreasonable, and a violation of Section 8 of the Charter.
[5] The Crown and defence agree on the applicable law thus far. The disagreement is with respect to the remedy and Section 24(2) of the Charter. Both agree that the Spencer problem is not enough to mandate exclusion. The issue to be resolved in this case is whether there are other aspects of the search which, when added to the Spencer issue, entitle the applicant to the remedy sought.
[6] In my view, as I informed counsel after the hearing, there is nothing of significance to differentiate this Section 24(2) application from Spencer. As in that case, the evidence ought not to be excluded.
[7] During a hearing over four days, several areas were canvassed, mostly facial as opposed to sub-facial areas, but defence counsel narrowed her argument down to four main issues in the end: 1. Reasonable grounds did not exist for the search; 2. The search warrant did not authorize the search of computers or other digital devices; 3. The manner of the search was unreasonable because the police searched multiple devices as opposed to the one computer which was detected sharing child pornography on the internet; and 4. On the ultimate issue, Section 24(2) required the exclusion of the evidence.
1. The Absence of Reasonable Grounds
[8] Under this issue, defence counsel argued that because the alleged picture and movie snippet were downloaded by the informant police officer about three months before the search was actually carried out, the allegations were stale and there was a distinct possibility that the alleged evidence had disappeared. Counsel attacks the inference explicitly drawn in the ITO that people who collect child pornography hold on to it for extended periods of time.
[9] Defence counsel equated this situation with R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8. In that case, Justice Fish for the majority at paragraphs 68-87 found that the propensities of child pornography possessors could not be assumed and that the expertise of the informant officers was inadequate to assist to any significant degree in inferring their behaviour. In addition, the four month gap between the observations made and the execution of the warrant was a major obstacle to forming the requisite grounds.
[10] Those holdings were specific to the facts in that case. As the reviewing judge here, it is my view that the factual underpinnings of this ITO are readily distinguishable.
[11] First, in Morelli, there was only the charge of possession of child pornography as opposed to accessing or making available as charged here. The Morelli warrant was based on observations made by a technician who was installing high speed internet on the accused’s computer. There were some suspicious icons on the computer and some links on the favourites bar to what sounded like child pornography sites. When the technician returned the next day, all of the computer links and icons were gone and the hard drive had been formatted and wiped clean.
[12] Justice Fish expressed doubts whether the observations of the technician, given the possibility that the accused had only been surfing the internet and had not downloaded anything, demonstrated actual possession of the illicit material.
[13] Furthermore, the police informant in the Morelli ITO, in an effort to explain away the problem posed by the evanescent nature of digital media, made two “propensity” claims which were held by Justice Fish to be unsubstantiated: 1. These “types of offenders” are “habitual” and are likely to continue their computer practices of viewing or collecting child pornography; and 2. They treasure their collections of child pornography and will likely store them and create back-ups: see para. 73.
[14] Justice Fish found fault with both of these inferences and with the officers’ lack of expertise for their opinions. The evidence was drastically different, however, in our case. The ITO evidence summarized by the informant Officer Ullock stated that he learned through his software program that the IP address of the target computer had shared 34 files of suspected child pornography. The officer than set up his software program to troll and automatically download from the IP address if it came on line. Within a day, the program had downloaded two files. It was clear that the applicant had child pornography files on his computer and that he was sharing them with others. Two examples were downloaded by the police investigator with his software. There was, unlike in Morelli, actual physical possession.
[15] In Morelli, the ITO had to make the inferential leap of continuing possession or of hoarding activity while in the case at hand, the possession and sharing were present in real time and were based on the officer’s direct evidence.
[16] It is true that the propensity attested to by the officer in this ITO at paragraph 41 looked somewhat similar to the comments in Morelli. The officer said that based on his training and experience, which he had earlier attested to in the ITO and elaborated on when he testified, he believed that collectors of this type of illegal material keep it for “indefinite periods of time and generally do not dispose of or delete their collections.”
[17] But the inference of possession was far stronger here than in Morelli. There was no question that the suspect computer had been in possession of child pornography, unlike in Morelli. There was no evidence that the applicant had ever relinquished possession as Morelli had done when he wiped the drive. The issuing justice was entitled to draw the inference that the possession was continuing. This was bolstered by the everyday inference that people who download this material get some pleasure from looking at it and are likely to look at it in the future for their continuing pleasure. This was all the officer was saying in paragraph 41 and, in context, I do not see it as controversial.
[18] Crown counsel pointed to Justice Doherty’s treatment of this issue in R. v. Ward, 2012 ONCA 660, [2012] O.J. No. 4587 as being similar to our case. I agree. Justice Doherty said:
113 This ITO is very different from the ITO found to be deficient in Morelli. Most significantly, this ITO provided strong evidence from which it could be inferred that someone using the appellant's computer at his residence had accessed or downloaded child pornography on eight instances, six on June 16, 2006 and one each on July 2 and 6, 2006. These allegations, in my view, provided a basis upon which the justice could infer that there was a reasonable probability that child pornography had been accessed and stored on the computer. Unlike Morelli, the police in this case sought the warrant both in respect of the offence of accessing child pornography and the offence of possessing child pornography. In Morelli, the police sought a warrant only in respect of the possession charge.
115 The affiant also provided detailed evidence based on his first-hand experiences about the practices of individuals who access and possess child pornography on their computers. He indicated that often these individuals kept images for "long periods of time" and "rarely deleted collections". I see no reason why this kind of evidence, rooted in the officer's personal experience, could not provide some assistance in determining whether the warrant should be granted. I bear in mind that the officer's opinion did not stand alone. There was other reliable evidence that this computer had been used to access child pornography on three occasions over a three-week period suggesting use of the computer by someone with an interest in child pornography.
116 The technical evidence and the officer's opinion evidence provided a basis upon which a justice of the peace could reasonably infer that there was a reasonable probability that the child pornography that had been accessed on the computer some ten months earlier was still on the computer and could be retrieved by the police. That is all that was needed to justify the issuance of the warrant. This ground of appeal fails.
[19] The case here is like Ward, not like Morelli. This ground of attack on the ITO is unsuccessful.
2. The Warrant Did not Specifically Authorize the Search of Computers
[20] Defence counsel argues that the face of the warrant is defective as it authorizes a search of the applicant’s home but does not mention his computers. However, the face of the warrant incorporates by reference as part of the ITO Appendix A--“items sought”--which states in the usual all-encompassing boilerplate language that what is sought within the residence are computer devices, peripherals etc. for full forensic analysis. Furthermore, Appendix B particularizes the offences committed as in respect of “graphic computer videos and images” and Appendix C which describes the grounds for belief, leave no question that it is computers which the police intend to search.
[21] The defence complaint is that following R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 and R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, the search of the digital devices should have been specified on the face of the warrant.
[22] After Vu, because of the unprecedented instrumentality of a computer in our society and the profound intrusion upon personal informational privacy involved in a police search of one, a warrant must specify that the police intend to search a computer or other digital device. The Jones case adds the qualification that if the police are looking for evidence of fraud on a computer, they do not have carte blanche to search the entire computer indiscriminately for proof of other offences: see para. 42.
[23] Here, the authorizing justice could not have been misled about the police intention to search computers and other digital devices at the applicant’s residence. The ITO was unmistakable. The argument that the face of the warrant should have specified computers in the dwelling house is ultra-technical. On a plain reading of the entire ITO, specifying computers on the face of the warrant would have added nothing.
3. The Manner of the Search was Unreasonable
[24] The defence argument here is that the police ought not to have searched all the digital devices they did. The agreed statement of fact makes it clear that they searched a wide range of peripherals, cell phones and computers. All but two yielded no results and were returned to the applicant.
[25] The authorizing justice permitted the search of all digital devices in the applicant’s home. The police carried out the search under these open ended terms. I do not find this incongruous with Section 8 nor is there any evidence that the police failed to minimize the manner of the search.
[26] The content attested to in the ITO was illicit digital files possessed and shared by the applicant. Digital files are and can only be stored on digital devices. It made sense to search all of the devices capable of holding digital visual images on the premises. It is logical that a person who is attracted to child pornography could well store images on his smartphone, tablet or on peripheral storage devices.
[27] There was nothing remarkable or out of the ordinary in searching all the devices. To the contrary, if the police had only searched some of the digital devices and not others, this would have been quite illogical.
[28] There was no evidence that the police were indiscriminate in the actual search of the devices. An agreed statement of facts was entered into saying that the devices were “examined.” In Vu, Justice Cromwell held that search protocols are not generally constitutionally required: see paras. 53-62. Perhaps in a situation in which it is known that highly sensitive, perfectly legal personal information is stored on a computer, specific steps ought to be taken to ensure that the personal privacy of the suspect in that material is protected. But there is nothing in this record of that nature nor is there evidence that the police overstepped the bounds of their search authorization.
4. Conclusion on Section 24(2)
[29] In the end, there is nothing to set this case apart from Spencer. The seriousness of the breach under the first Grant factor is diminished as it was in Spencer because the police reasonably believed that asking for and then receiving the identification information from the ISP was permissible. Their misunderstanding of the law was completely justifiable. The law at the time espoused by the Ontario Court of Appeal in Ward authorized police requesting and receiving subscriber information from ISPs.
[30] Examples of Charter breaches in which the police rely on the current understanding of the law have mitigated Charter breaches going back at least as far as R. v. Duarte 1990 CanLII 150 (SCC), [1990] S.C.J. No. 2, [1990] 1 S.C.R. 30 (see para. 55). In the result, the seriousness inquiry, and the other two categories under Grant, line up as they did in Spencer. The result should be the same as there.
[31] These are the reasons the application was dismissed.
D.E HARRIS J.
Released: April 5, 2018
COURT FILE NO.: CR-14-0586-00
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AYMANN ELHAKIM
Applicant
ADMISSIBILITY RULING
D.E HARRIS J.
Released: April 5, 2018