COURT FILE NO.: CR-16-1412 DATE: 2018 09 11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN :
HER MAJESTY THE QUEEN Kerry Watson, for the Crown
- and -
DANIEL NEILL James Mencel, for the Defence Accused
HEARD: March 12, 13 and 14, 2018
Reasons for Judgment
Coroza J.
Introduction
[1] Daniel Neill is being tried before me for a child pornography offence.
[2] At the outset of the trial, I heard a motion to exclude evidence obtained from the seizure of images and photographs from a memory card found in a Blackberry device that belonged to Mr. Neill. The images and photographs are important evidence for the Crown’s case against Mr. Neill.
[3] Mr. Neill submits that his s.8 rights under the Canadian Charter of Rights and Freedoms were violated. Mr. Neill’s arguments, stripped to their essentials, come down to the following three broad claims.
[4] First, the Form 5 order that authorized the search of the Blackberry was invalid.
[5] Second, the police did not follow the terms of the Form 5 when they executed the search of the Blackberry.
[6] Third, the police did not follow the specific code of procedure set out in the Criminal Code to ensure proper judicial supervision of the Blackberry and the data seized by the police.
[7] He seeks the remedy of exclusion of the images and photographs pursuant to s. 24(2) of the Charter.
[8] Despite Mr. Mencel’s very able arguments on behalf of Mr. Neill, I dismiss the application to exclude the evidence. The photographs and images are admitted into evidence.
Overview of the Investigation
[9] In December of 2013, American authorities received reports from social media providers that a Canadian user had uploaded pornographic images of young males to their accounts.
[10] The American authorities passed this information to the Canadian authorities (RCMP) in January 2014. Mr. Neill became the focus of the investigation. The RCMP then forwarded the information to the Peel Regional Police (PRP). Cst. Martin of the PRP became the lead officer in this case.
The Seizure of Mr. Neill’s Blackberry
[11] On March 31, 2015, Cst. Martin and another PRP police officer confronted Mr. Neill in Port Colborne, Ontario. The confrontation took place in a Tim Horton’s restaurant. The police officers seized a Blackberry that was in Mr. Neill’s possession without examining it. The police officers did not arrest Mr. Neill, although they believed they had the grounds to do so.
[12] The officers returned to Peel Region and the phone was kept in the custody of the PRP in a secure evidence locker.
Cst. Martin Submits the First Return to Justice
[13] When the police seize anything pursuant to a search warrant, they must comply with the provisions of s. 489.1 of the Criminal Code. That section provides that seized items should be returned to the person from whom they were seized where appropriate. However, if the police believe a seized item is required for an investigation or as evidence, they must either bring the seized items or a report about their seizure before a justice of the peace, who may then order the continued detention of the seized items for up to three months pursuant to s. 490 of the Criminal Code. Pursuant to s. 490, further extensions may be ordered in increments of up to three months, but the total cumulative period cannot exceed one year (see: R. v. Merritt, 2017 ONSC 1508, 145 W.C.B. (2d) 593, at para. 234 per Dawson J.). Alternatively, the seized items may be ordered detained if proceedings are instituted in which the things detained may be required.
[14] On April 7, 2015, Cst. Martin completed a report for a Justice pursuant to s. 489.1 of the Criminal Code for the seized Blackberry. As a result of the report, pursuant to s. 490, Justice of the Peace Gunness ordered “the phone detained until May 5th, 2015” or, “if charges have been laid before that date, until the completion of all proceedings”.
Cst. Martin Seeks Judicial Authorization on April 17, 2015
[15] On April 17, 2015, Cst. Martin then sought judicial authorization to search the phone. In support of his application, Cst. Martin submitted a package to the justice of the peace office in Brampton. That package contained the following items in the following order:
- A blank copy of a Form 5 order, (i.e. s. 487 Criminal Code search warrant);
- A copy of Appendices A (described as “Items being sought”) and B (described as “Offences Committed”) of Cst. Martin’s sworn Form 1 information to obtain (ITO);
- A signed sworn Form 1 (ITO) together with a copy of Appendices A, B and C (“grounds for belief”) to the ITO; and
- A second copy of the signed Form 1 ITO with a copy of all appendices.
[16] The Form 5 is the document that empowers police to search a particular location for particular evidence. The Form 1 ITO provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of Form 5 for certain evidence. However, the Form 1 ITO is not part of the warrant that a searching officer is expected to examine. Varpio J. in R. v. Townsend, 2017 ONSC 3435, 140 W.C.B. (2d) 240 explains the relationship of the Form 5 Order and the Form 1 ITO:
…the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search. As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant [citations omitted].
[17] The following is not disputed.
[18] First, Cst. Martin mistakenly used an outdated Form 5. In his Form 1 ITO Appendix C, Cst. Martin swore that he had reasonable grounds to believe that the “items listed in ‘Appendix A’ of this information will afford evidence of the criminal offence of Possession of Child Pornography, section 163.1(4) of the Criminal Code of Canada,”. However, the Form 5 that he submitted sets out that that items listed in Appendix A will afford evidence in respect to the commission, suspected commission, or intended commission of an offence against the Criminal Code.
[19] Second, Form 5 states that police officers “between the hours of April 23rd, 2015 6:00am-8:59pm” are authorized to “enter into the premises and search for and seize the Blackberry Cell phone, and to bring them before the issuing justice or some other justice to be dealt with according to law.”
[20] Third, while Form 5 references appendices A and B, these two appendices are copies of the appendices to the Form 1 ITO. Cst. Martin has explained that he made extra copies of these two appendices and simply attached them to the draft Form 5 he submitted to the justice of the peace. He intended to have the two appendices form part of the Form 5.
[21] Fourth, Appendix A includes a “Terms and Conditions” section that states:
“The above mentioned items will be analyzed to locate evidence on or available to the computer system in the two following data categories:
- Data involving the offences listed in Appendix B. This includes, but not limited to images and videos found on the device(s) or on remote storage location(s) e.g.: Microsoft Skydrive that would meet the definition of Child Pornography as per 161.1(1) of the Criminal Code of Canada and associated files leading to evidence of knowledge or control; and
- Data found on the device(s) or on remote storage location(s) e.g.: Microsoft Skydrive which provides evidence of the use, ownership, access and configuration of the items listed above. This includes, but is not limited to other documents, such as Microsoft Word files not criminal in nature, in order to reveal the user of the devices.
[22] Fifth, Appendix B of the Form 1 ITO outlines the offences and states:
- Person or Persons unknown on or between July 31st, 2013 and December 23, 2013, did have in his possession child pornography to wit: graphic computer files, contrary to section 163.1(4) of the Criminal Code of Canada.
- Person or Persons unknown on or between July 31st, 2013 and December 23, 2013, did make available child pornography to wit: graphic computer files, contrary to section 163.1(3) of the Criminal Code of Canada.
[23] Sixth, it is also not disputed that each of the appendices attached to the Form 1 ITO has a header with the following wording:
This appendix…forms part of the information to obtain a search warrant pursuant to section 487 of the Criminal Code of Canada for the “receptacle” of 180 Derry Road East, Evidentiary Property Bureau, Mississauga, Ontario.
Judicial Authorization is Granted
[24] Later that day on April 17, 2015, the entire search warrant package was returned to Cst. Martin. The Form 5 was signed by Justice of the Peace Ritchie. JP Ritchie also appeared to add the following hand-written endorsement to the Form 5: “Property Bag #B721230”. It is not disputed that this is the police property bag number where the Blackberry was located within a police vault at 180 Derry Road East. The property bag was referenced by Cst. Martin in his sworn ITO.
[25] Furthermore, a copy of the Form 1 ITO with the attached appendices A, B, and C, appeared to have been initialled by JP Ritchie. The copies of appendices A and B that were attached to the Form 5 are not initialled.
The Data Extraction
[26] On April 23, 2015, Cst. Martin removed the Blackberry from the PRP evidence locker shortly after 8 a.m. pursuant to the order and turned it over to the Tech Crimes Unit.
[27] Cst. Burton of the Tech Crimes Unit extracted the data from the Blackberry on April 30, 2015. Given the strong security features on the device, Cst. Burton was unable to extract data directly from the Blackberry. However, the Blackberry held a separate memory card on which evidence of the offence charged was found. Again, it is the data from this card that Mr. Neill seeks to exclude from this trial.
[28] Cst. Burton explained that he used a program to commence an analysis of the memory card. The program is called NScript and it searches for picture and video files, and then exports them into a report format. In this case, once the export was complete, Cst. Burton notified Cst. Martin and uploaded the results to a police hard drive for Cst. Martin to review the images and pictures. It is Cst. Martin’s role as the lead investigator to review images and determine if they are child pornography.
[29] Cst. Burton testified that at the start of his analysis, he only looked at the Form 5 and Appendix A. It was not his practice to look at Appendix B or C of the Form 1 ITO. Cst. Burton explained that, although he noted that the Form 5 provided a date for the execution of the warrant to be April 23, 2016, between 6:00 a.m. to 8 59 p.m., he was not troubled by this because he did not believe that his extraction had to be carried out that day. He explained that this was not realistic because there is a backlog of cases in the unit and that it can often take days to analyze items. He believed he had authority to proceed with his extraction of data.
[30] On May 1, 2015, Cst. Burton began to analyze the data he had extracted. He explained that he was able to view folders within the memory card. Exhibit G is a screen capture within NCASE that shows the directory structure of the memory card.
[31] One of the folders that he viewed was titled “My documents”. He looked at this folder and testified that the documents he discovered tended to identify the user. Exhibit H is a collection of documents that he viewed and printed out.
[32] In summary, the data from the memory card was extracted and analyzed by Cst. Burton between April 30, 2015 and May 4, 2015.
[33] On May 4, 2015, Cst. Martin was advised that the analysis was complete.
Mr. Neill is Arrested
[34] On May 7, 2015, Mr. Neill was arrested. During his arrest, a black ZTE cell phone was seized, though it was determined that this type of device was incapable of storing images.
Cst. Martin Submitted a Second Report to Justice
[35] Cst. Martin testified that he could not recall specifically when, but he discovered some time after May 5, 2015 that the initial s. 490 order for detention of the Blackberry had elapsed. He explained that he failed to note that JP Gunness had ordered detention until May 5, because he assumed that JP Gunness had authorized detention of the Blackberry for three months.
[36] On May 14, 2015, Cst. Martin submitted a second report to a Justice for the Blackberry and the ZTE Phone. In the second report, no mention was made of any of the data seized from the Blackberry.
[37] On May 14, 2015, JP Manno authorized the detention of the Blackberry until the disposition of the charges that had been laid as a result of the arrest on May 7.
Justice Dawson’s Ruling in August 2016
[38] On August 3 and 4, 2016, Mr. Neill brought an unsuccessful Application before Dawson J. to exclude evidence. At that time, Mr. Neill argued that the police did not have any basis to legally seize his Blackberry from him during the confrontation at the Tim Horton’s. Dawson J. held that the police seized the Blackberry lawfully, pursuant to exigent circumstances (see: R v. Neill, 2016 ONSC 4963, 134 W.C.B. (2d) 457).
[39] Dawson J. noted that the situation, as it was known to the police at the time they entered the Tim Horton’s to seize the phone, was capable of supporting the issuance of a search warrant.
The Arguments
[40] Mr. Neill brings an application to exclude the images and photographs discovered by the police pursuant to JP Ritchie’s authorization.
[41] Counsel for Mr. Neill makes the following specific arguments:
- The Form 5 order is facially invalid as it did not actually contain Appendices A and B as referenced.
- The Form 5 order only authorized police to seize the Blackberry contained in the property bag from the evidence locker where it was being stored, rather than permit an actual search for data in the Blackberry.
- The Form 5 order was facially invalid due to the inclusion of language allowing police to seek “evidence in respect to the commission, suspected commission, or intended commission of an offence against the Criminal Code”.
- The police breached Mr. Neill’s section 8 rights by failing to search the cell phone within the time periods set out on the face of the Form 5 order.
- Cst. Martin breached Mr. Neill’s section 8 rights by failing to file the first report to a Justice as soon as practicable as directed by the Criminal Code.
- Cst. Martin breached Mr. Neill’s rights by failing to file a detailed Report to a Justice with respect to the seized data following the extraction of the images on the memory card.
Analysis
Challenging the validity of a search warrant
[42] Mr. Neill advances what is termed a “facial validity challenge” to the Form 5 Order. This type of challenge requires the reviewing judge to examine the order. The record examined on a facial review is fixed. I must not permit the record to be amplified or enlarged (see R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357 and R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39).
[43] During oral arguments, there was some debate between counsel about whether or not I could consider the entire warrant package marked as Exhibit C. I am of the view that the fixed record consists of the warrant package (Exhibit C) that was submitted by Cst. Martin and returned by the JP office. There was no objection to the package being filed as an Exhibit. Furthermore, Cst. Martin testified that Exhibit C is the package he submitted and received back from the JP office.
[44] I now turn to Mr. Neill’s specific arguments.
Argument 1: The Form 5 order is facially invalid as it did not actually contain Appendices A and B as referenced.
[45] Mr. Mencel argues that the Form 5 order must clearly articulate what is to be seized and gathered during the search. He submits that I cannot be satisfied that the order does anything else but authorize the seizure of Property Bag #B721238 on April 23, 2015 between 6:00 a.m. to 8:59 p.m. and bring it before the justice to be dealt with according to law.
[46] Relying on a decision by Fairburn J. (as she then was in R. v. Nguyen, 2017 ONSC 1341, 139 W.C.B. (2d) 27), Mr. Mencel argues that the two appendices attached to the signed Form 5 order are not part of that order. He points out that all appendices in the search warrant package start with the words, “THE INFORMANT SAYS THAT he has reasonable and probable grounds to believe and does believe that there are certain things to wit…” He submits that the fact that the two appendices have this header clearly sets out that the appendices are intended to be attached to the Form 1 ITO and there was an improper delegation by the JP of her constitutional and statutory obligation to form her own reasonable belief on these fundamental issues surrounding items authorized to be seized. Mr. Mencel argues that on this record, I cannot be sure that the JP did not simply defer to the affiant’s belief as opposed to coming to her own conclusions.
[47] I am not persuaded by this argument for the following reasons.
[48] First, the form 5 order signed by JP Ritchie explicitly refers to Appendix A and Appendix B. I have set out the wording of Appendix A and Appendix B above.
[49] Second, there were multiple copies of the appendices and I find as a fact that copies of Appendix A and Appendix B were attached to the Form 5 order. Clearly, Cst. Martin intended for the appendices to be part of the Form 5 order. When he received it back, that package contained the signed Form 5 order with Appendix A and Appendix B attached. Appendix A explicitly sets out that the Blackberry will be analyzed to locate evidence on or available to the computer system in two data categories.
[50] Third, it appears that JP Ritchie did not initial the signed Form 5 order or either of the two appendices attached to the order. She did, however, initial the Form 1 ITO with all three appendices. This supports the inference that the JP intended that order consisted of the Form 5 order and the attached two appendices.
[51] In my view, what distinguishes this case from Nguyen is that, in this case, the JP handed the package back to Cst. Martin with two appendices attached. As my former colleague notes, notwithstanding the awkward and misleading wording of the header found in the appendix, the fact that a Form 5 Order is returned signed with an appendix attached may support the inference that the justice intended the appendix to be part of the Order.
[52] In conclusion, I am satisfied that the full warrant package received back by Cst. Martin does contain a Form 5 Order with an Appendix “A” and “B” attached. As such, it does not suffer from the issue as noted in the case of Nguyen, in which Justice Fairburn found that there was no Appendix “A” attached to the warrant in that case. I reach this conclusion notwithstanding that Cst. Martin incorrectly used a page header to identify appendices “A” and “B” as “part of the information to obtain a search warrant”. Although I would consider the inclusion of this erroneous header to the appendices as very sloppy practice, in my view it does not invalidate what is otherwise a valid warrant.
[53] I also observe that Cst. Burton testified that he read Appendix A to the Form 5 Order. He did this to understand the parameters of the order. The Appendix A in this case contains a section with terms and conditions that set out what kind of data is to be analyzed. With or without a page header, the appendices in this case served the function of authorizing a seizure of the Blackberry in order to search for evidence of the alleged crimes.
[54] I do not find a breach on this basis.
Argument 2: The order of April 17, 2014 only authorized police to seize the Blackberry contained in the property bag from the evidence locker where it was being stored, rather than permit a search by the tech crime unit.
[55] Mr. Mencel’s argument depends on whether I accept that the appendices did not form part of the Form 5 Order. He argues that the warrant did not on its face authorize police to subject the phone to a forensic analysis as requested in the ITO. Instead, it simply permitted them to seize “property bag # B721230” and bring it before a justice to be dealt with according to law.
[56] Mr. Mencel relies on a recent decision of Dawson J. in R v. Merritt. In that case, which involved the extraction of an electronic PDF from a memory card inserted into a phone, Dawson J. held that the search warrant was facially invalid for the purposes of conducting a technological examination because it simply authorized the police to seize the cellphone from the evidence locker where it was being stored. Moreover, Dawson J. concluded that the warrant could not be cured with reference to the ITO, as the appellate authorities make clear that reference to a supporting ITO is not available as a means of saving a warrant which is defective on its face.
[57] The case of Merritt does not assist Mr. Mencel in this case. For my reasons set out above, in my view, the order clearly authorized the police to attend at the Evidentiary Property Bureau at 180 Derry Road East, Mississauga Ontario specifically with respect to Property Bag (#B721230) and seize said bag, which contained the Blackberry, and search it according to the terms and conditions as set out in Appendix “A” to the warrant. On the face of the warrant, it indicates to “See Appendix A.”
[58] The fact that Appendix A, as referenced on the face of the warrant, indicates that the “Black Blackberry Cell phone” “will be analyzed to locate evidence on or available to the computer system in the two following listed data categories” distinguishes this case from that of Merritt.
[59] As my colleague Dawson J. noted in Merritt, Appendix A in that case in its totality consisted of the following:
Appendix A
(Items to be searched for at the building receptacle locker 009 located at 180 Derry Road, Mississauga, Ontario
In the matter of a Warrant to Search, pursuant to section 487.1 of the Criminal Code of Canada
- Cell phone
[60] The Appendix in this case is different. In this case, I find that the Form 5 order authorized the police to subject the phone to an analysis. Indeed, the Appendix A attached to the Form 5 order refers to this fact.
[61] I find no breach of Mr. Neill’s s. 8 rights with respect to this issue.
Argument 3: The Form 5 order is facially invalid due to the inclusion of language allowing police to seek “evidence in respect to the commission, suspected commission, or intended commission of an offence against the Criminal Code”
[62] Mr. Mencel argues that the warrant is facially invalid as Cst. Martin used an outdated Form 5 allowing police to seek “…evidence in respect to the commission, suspected commission, or intended commission of an offence against the Criminal Code,” otherwise known as a “Branton error.” In R. v. Branton, (2001), 53 O.R. (3d) 737 (CA), Weiler J.A. commented that searching for evidence of a “suspected or intended commission” of an offence exceeds the lawful authority of a s. 487(1)(b) warrant.
[63] The Crown concedes the error. However, the Crown submits that in this case, the ITO clearly specified that the affiant had “reasonable grounds that the items in Appendix A will be found at Derry Road East, Evidentiary Property Bureau, Mississauga”.
[64] I am troubled by the fact that Cst. Martin used the wrong form even though that form was replaced on January 1, 2012. I believe the officer was careless in using the old form.
[65] Nevertheless, the danger of a Branton error is that it improperly risks overly broad conduct at the scene of the search (see R. v. N.N.M, 223 C.C.C. (3d) 417 (ON SC) per Hill J.) and, in my view, there is no such danger that exists on this record.
[66] There was no risk that the evidence being sought in the Blackberry was related to the suspected commission or future commission of an offence. Cst. Martin is the same officer that investigated Mr. Neill. His investigation found that Mr. Neill was publicly posting images of child pornography, which constituted a criminal offence. He seized the Blackberry phone from Mr. Neill and he obtained the warrant to search and analyze the Blackberry. There is no chance he would have been misled by the error in the form.
[67] In Nguyen, Fairburn J. applied the principle of severance to rectify the same problem with the order in that case. She also concluded that there was no possibility of confusion at the search scene, though she noted in her s. 24(2) ruling that it was concerning that police were still using this outdated form that had been replaced years ago.
[68] I accept the wrong form 5 order was used. This was regrettable. However, I apply the principle of severance to rectify the warrant. I find no breach.
Argument 4: The police breached Mr. Neill’s rights by failing to search the Blackberry within the time periods set out on the face of the Form 5 order.
[69] Mr. Mencel further submits that the police breached his section 8 rights by failing to comply with the time period specified on the face of the warrant. The extraction of data was not complete until May 4, 2015. Mr. Neill argues that the extraction and analysis of the data had to be undertaken on the date specified in the Form 5 order – between 6:00 a.m. and 8:59 p.m. on April 23.
[70] Cst. Martin did specify in the Form 1 ITO at page 6 that if “the [search] application is granted, the search warrant will be executed on the PRP Evidentiary Property Bureau on the specified date, collect the evidence and transport it to the PRP Technological Crimes Unit to be placed in their queue for analysis.”
[71] I agree that the Form 5 order authorized the police to seize the Blackberry from the evidence locker on April 23rd, 2015. They were permitted to do so between 6am – 8:59pm on that date. As I have set out above, after seizing the phone, the police were permitted to search for data on the Blackberry, subject to the terms and limitations found in Appendix A to the order. The terms of Appendix A clearly set out that the phone will be analyzed to locate data. The issue is whether the forensic examination of the Blackberry had to be completed on the date as specified in the order.
[72] In my view, reading the Form 5 order as a whole (including the appendices), the order grants permission to the police to enter the locker, remove the phone and analyze the phone for evidence. The order does not impose a time limitation for the search of the data on the Blackberry.
[73] In R. v. Barwell, 108 W.C.B. (2d) 670 (ON Ct. J.), a technician found child pornography while transferring files from a client’s old computer to a new computer. Police were called and seized the hard drives. As of April 5, 2011, the hard drives were in a police lock-up. The police subsequently obtained an order to search the computers. That order authorized the search and seizure of the hard drive computers from the lock-up. The order specified that on August 18, 2011 between the hours of 6:00 a.m. to 9:00 p.m., the police were permitted to enter and search for the computer hard drives and “to bring them before me or some other Justice to be dealt with according to law”. The police retrieved the hard drives on that day but the forensic examination did not commence until August 19, 2011, after the search period had expired.
[74] Paciocco J. (as he then was) held that the face of an order empowering the police to search a device refers to the time where the police take possession of the device for the purpose of the search. However, he held that the timing of the subsequent search for the data in the device is governed by s. 490 of the Criminal Code. Paciocco J. held that “the law treats the initial search and seizure and subsequent forensic examinations separately. Indeed, ss. 489(1) and 490 of the Criminal Code of Canada allow for detention of items seized pursuant to a warrant ‘for the purpose of any investigation.’”
[75] I would adopt the following comments of Paciocco J.:
Specifically, Sections 489(1) and 490 of the Criminal Code of Canada together require that when things have been seized pursuant to a warrant, the police officer shall, as soon as practicable, either bring the seized items before a Justice or file a report identifying the thing being detained and the reason for detention. And the Justice shall order that the thing be released or detained, including for the purposes of investigation. In other words, the search warrant provision deals with the time required for the initial search for an item and with its seizure. The detention provisions address how long the item can be kept for forensic analysis after the search is made for the item and it is seized.
[76] The order in this case has similar wording. However, in my view, the search and seizure authorized by the order occurred properly when Cst. Martin assumed control over the Blackberry on April 23, 2015 at 8:00 a.m. That was within the period specified for that search and seizure. The order did not require the forensic examination to take place during that same brief window.
[77] However, Paciocco J. then went on to say the following:
“In my view, if there’s a relevant breach that occurred here, it would have occurred if Detective Pelletier had failed to bring the items seized or a report before a Justice to be dealt with according to law and secure authority to detain the hard drivers for forensic examination”. [Emphasis added].
[78] In this case, when Cst. Burton completed his forensic examination, there was already an order for detention for the Blackberry. That is because, on the evidence that I have heard, a detention order had already been granted by JP Gunness on April 7. While I will deal with whether that order was obtained “as soon as is practicable” below, the fact is that there was an order for detention of the Blackberry at the time the forensic examination took place. The forensic analysis of the Blackberry was completed by May 4, 2015. The order for detention issued on April 7, 2015 did not expire until May 5, 2015.
[79] Therefore, I am not persuaded that there was any violation arising out of the forensic examination of the Blackberry.
Argument 5: Did the police breach Mr. Neill’s section 8 rights by failing to file a Report to a Justice as soon as practicable as mandated by the Criminal Code?
[80] Section 489.1(1) applies to seizures made both with and without prior judicial authorization. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code (see: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55).
[81] Fairburn J.A. recently summarized the purpose of section 489.1 in R. v. Canary, 2018 ONCA 304, 146 W.C.B. (2d) 460, at para 45:
“Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized.”
[82] Mr. Mencel argues that waiting until April 7, 2015 to file the initial report to the justice violated Mr. Neill’s s. 8 Charter rights.
[83] As Fairburn J.A. notes in Canary, there is an inherent flexibility built into the assessment of whether the police acted “as soon as is practicable”. Determining whether this requirement has been met is necessarily a fact-specific inquiry and one that should only be answered after a careful review of all of the evidence, including any explanations for why the report was filed when it was.
[84] In my view, there was no basis to delay the initial report to a justice. The only explanation offered by Cst. Martin was that after he seized the phone he had to go and work on other investigations, and his shifts did not permit him to file the report.
[85] With respect, this is not an explanation that appears to be reasonable.
[86] First, the context is important here. After having just seized the Blackberry under exigent circumstances, it seems to me that there was an obligation to file the report with dispatch.
[87] Second, the argument that the officer was working specific shifts and had other investigations does not strike me as being reasonable. There is nothing in s. 489.1 that requires the seizing officer to either personally write the report or to personally present the report to the justice. There is very strong authority that an officer complies with s. 489.1 when the officer prepares an internal report of the seizure and detention, and another officer, in accordance with his or her responsibilities, reviews the internal report, physically fills out the report form and presents it to the justice. The seizing officer also complies with the section when that officer reports his seizure to an officer in charge of the seizures in the investigation, and that officer in turn prepares the internal report that is provided to the officer who physically fills out the form and presents it to the justice (see: Toronto Police Services Board v. Ontario (Justice of the Peace), 75 W.C.B. (2d) 210 (ON SC) per Dambrot J.).
[88] Waiting until April 7, 2015 to file the initial report was unreasonable. I am satisfied that Cst. Martin violated Mr. Neill’s s.8 rights by failing to file this initial report to a justice as soon as is practicable.
Argument 6: Cst. Martin breached Mr. Neill’s s. 8 rights by failing to file a detailed Report to a Justice with respect to the seized data following the extraction of the images on the memory card.
[89] Mr. Mencel argues that Cst. Martin further breached his rights when the officer failed to file a detailed second report to a justice with respect to the seized data following the extraction and analysis of the images. As I have set out, this was completed by May 4, 2015. Cst. Martin did not file a second report to a justice until May 14, 2015. In that report, he did not report that data had been seized.
[90] As I have set out above, the purpose of the report is to enable a justice to ensure the proper maintenance or disposal of property seized under the justice’s authority. The report includes a written inventory of what was seized, to enable the justice to fulfill the obligation of ensuring that the property seized is properly maintained or disposed of. The purpose of a return or report has been to ensure the proper care and disposal of seized property.
[91] In Merritt, Dawson J. found a breach of the applicant’s s. 8 rights where, similarly to the case here, the police failed to do a report to a Justice in relation to the data found on seized computers and USB drives that were analyzed pursuant to a murder investigation.
[92] In that case, at paras 243-245, Dawson J. rejected the Crown’s argument that no additional report to a justice was required because the property itself was already being supervised by the court pursuant to the earlier detention order. Dawson J. put it this way:
“[243] I would point out, however, that under the original s. 490 order the court was supervising the detention of the physical items. As no return was made in relation to the execution of the October 18 warrant the court was not supervising the detention of the data gleaned from the computers and USB keys.
[244] As was subsequently held by the Supreme Court of Canada in R. v. Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as R. v. Vu and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.”
[93] I reach the same conclusion as Dawson J.
[94] The failure of Cst. Martin to report what had been seized as a result of the search of the data means that there was no judicial supervision of the items (i.e. photographs, images and items found in Exhibit H) that had been seized as a result of the search of the data. Therefore, I find a breach of Mr. Neill’s s. 8 rights.
S. 24(2): Should the photographs and images seized be excluded from this trial?
[95] Based on my findings that his s. 8 rights were violated, the onus falls on Mr. Neill to establish, on a balance of probabilities, why the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
[96] In deciding whether or not to exclude evidence in this case, I must, as directed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71:
"...assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits."
The Seriousness of the Charter-Infringing State Conduct
[97] I have found two breaches. First, Cst. Martin initially was required to report “as soon as is practicable” that the police had seized the Blackberry and were detaining it or causing it to be detained. He did not do this. Second, I have also found that he was required to file a report to a justice once he seized images, photographs and items as a result of the search of the data in the memory card.
[98] While he may have been careless, the following factors do attenuate the significance of these breaches. In my view, these were not serious examples of police misconduct.
[99] First, I agree with the Crown that ss. 489.1 or 490 do not explicitly or specifically require the police to detail in a report to a Justice or Order for Detention items or data contained within an item that has been seized pursuant to a lawful search warrant. I acknowledge that the law remains unsettled as to whether, in the case of a cell phone or a computer, a peace officer must file a Report to Justice outlining every piece of data found on the device seized. Indeed, there is very little authority dealing with this issue. Indeed, I acknowledge that there is a strong argument that the regime was not meant for searches of data. It is debateable whether Cst. Martin should have or ought to have known that he was required to submit a report to a justice regarding the seizure of the items, photographs and images that had been seized.
[100] Second, the police had the phone lawfully. The police seized the Blackberry lawfully and applied for judicial authorization to search it.
[101] Third, in the case of the initial report to justice, this was a case of delayed compliance, not of complete non-compliance.
[102] For all of these reasons, the seriousness of the Charter-infringing state conduct does not pull towards exclusion.
The Impact of the Breach on the Charter-Protected Interests of the Accused
[103] I see very little prejudice to Mr. Neill’s interests as a result of the non-compliance with s. 489.1.
[104] Again, ss. 489.1 and s.490 establish a regime by which officers must account for things seized in the course of an investigation. Section 490 authorizes the justice, on the basis of the report, to order the thing returned to the lawful owner or person lawfully entitled to possession in certain circumstances, or, where the prosecutor, peace officer or other person having custody of the thing satisfies him to do so, order the thing detained.
[105] In this case, it is conceded that images of child pornography were seized from a search of the data. I agree with the Crown that even if Cst. Martin had filed the report for the Blackberry in a timely manner or reported on the discovery and seizure of specific data, images, and the photographs, the Blackberry, the data and all of the seized items would not have been returned to Mr. Neill.
[106] It is also important to note that the initial order of detention for the Blackberry was valid until May 5, 2015. The search and analysis of the data was complete by May 4, 2015.
[107] Once charges were laid, Cst. Martin could easily satisfy the justice that an order for detention would have to remain in place until the completion of all proceedings for the Blackberry and any photographs and images seized as a result of the search of the data. That is what happened here because on May 14, Cst. Martin did a further report to justice with respect to the Blackberry and JP Manno ordered that the detention of the Blackberry would remain in place until the disposition of charges.
Society’s Interests
[108] The allegations in this case are most serious and concern offences that involve children. The evidence from the search is reliable and vital to the Crown’s case. Society has an interest in the adjudication of this case on its merits.
Balancing the Considerations
[109] After balancing all the factors, I conclude that the evidence should not be excluded. I examined the following factors: the seriousness of the breaches; the impact of the breaches on the accused; and society's interest in adjudication on the merits.
[110] The application is dismissed.
Post Script
[111] Before leaving this matter, I do wish to make the following observations. Although the evidence in this case has not been excluded, I do not wish to be seen as condoning the actions of the police officers involved in this case. Quite frankly, the entire process of obtaining a warrant and seizing the data was sloppy. The use of outdated forms and delayed reports to justice was careless. I recognize that police officers in the Internet Child Exploitation Unit (ICE) are busy. However, the public expects that experienced officers such as Cst. Martin would take the time and care to ensure that a search and seizure of electronic devices relating to serious crimes such as child pornography is done correctly.
[112] Finally, I want to comment on Cst. Burton’s evidence that he did not read Appendix B to the Form 5 order. That seems to me to be ill advised. It seems to me that ignoring the Appendix B (offences committed) to the Form 5 order risks the Tech Crimes Unit in conducting extractions that are overbroad. For example, the offences may have specific date limitations. Although over seizure was not problematic in this case, the practice of ignoring Appendix B to the order may, in the future, result in unconstitutional conduct by the officers extracting data from the devices. The entire order should be read.
Coroza J.
Released: September 11, 2018