COURT FILE NO.: CR 19-10000219-0000

DATE: 20191205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Adam Collier

BEFORE: H. McArthur J.

COUNSEL: E. Evans, appearing as counsel for the Crown/Respondent

P. DeJulio and P. Locke, appearing as counsel for the Defendant/Applicant

HEARD: September 30, October 1, 2, 3, 4, 7, 8, 9, 11, and 15, 2019

reasons on section 8 application

H. MCARTHUR J.:

Introduction

[1] Adam Collier posted an advertisement on the “Casual Encounters” section of the Craigslist website with the title, “Big cock for high school girl m4w (west end)”. An undercover officer responded to the ad, posing as a 14-year-old girl named Addy. Over the next month, Mr. Collier had several sexualized email conversations with the Addy persona, using the email address of justmylittlesecret4@gmail.com.

[2] Based on these conversations, the police obtained a warrant to search Mr. Collier’s electronic devices. A search of his computer revealed that Mr. Collier had posted other similar ads and communicated with others using the above email address. Further, police discovered that Mr. Collier was also posting ads and communicating with others using the email addresses justmylittlesecret3@gmail.com and justmylittlesecret5@gmail.com. The police then successfully obtained these emails from Google Inc. in California through a request made pursuant to the Mutual Legal Assistance Treaty (MLAT).

[3] Mr. Collier now brings an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence found on his computer and as a result of the MLAT request.

[4] Mr. Collier advances two arguments in support of his application. First, he submits that the police failed to include two key pieces of information that would have undermined the preconditions for the search warrant and the MLAT order such that they could not issue. Second, he asserts that even if they could have issued, I should exercise my residual discretion to set aside the warrant and the MLAT order, as the police deliberately withheld information and thereby subverted the authorization process.

[5] For the reasons set out below, I find that that application must be dismissed. I will address each argument in turn.

Analysis

1. Did the failure of the police to include two pieces of information undermine the preconditions for the search warrant or the MLAT order?

[6] The Information to Obtain (ITO) the search warrant of Mr. Collier’s electronic devices set out in detail the email conversations between Mr. Collier and the Addy persona. On multiple occasions, the Addy persona said she was 14 years old, which Mr. Collier acknowledged. The persona said that she was in grade nine and spoke about her parents, friends and hobbies in a manner consistent with her stated age. The ITO explained how Mr. Collier engaged in sexually explicit conversations with the Addy persona and that he asked her to touch herself and others sexually. The ITO noted that Mr. Collier asked the Addy persona to send him photos of her naked breasts and that he sent her five images purporting to be of his penis and two pornographic videos depicting females of an indeterminate age performing fellatio on a male. The ITO also described how Mr. Collier had discussed meeting with the Addy persona to have sex. Similar information was also provided in the MLAT request.

[7] There were two pieces of information, however, which were left out of the ITO and the MLAT request. First, the undercover officer, Detective Michael Sabadin, created and sent a “Grabify” link to Mr. Collier. Grabify is a program that allows the user to send a link to someone, and when that individual clicks on the link their IP address will appear. Officer Sabadin sent a link to two photographs of the Olympic swimmer Amanda Beard. One of the photos was of Ms. Beard as a teenager and the other was a photo of her as a young adult. The officer explained in the ITO and the MLAT request that he sent the link in order to obtain Mr. Collier’s IP address. The officer failed, however, to include in the ITO or the MLAT request the two pictures that he had sent to Mr. Collier. The officer also failed to note that one of the pictures he sent to Mr. Collier was of Ms. Beard as a young adult. Second, to access the Casual Encounters section, users are required to click a link confirming that they are over 18. Officer Sabadin, however, in both the ITO and the MLAT request, failed to note the age confirmation requirement or explain that the site was meant to be restricted to adults only

[8] Mr. Collier argues that if these two pieces of information had been disclosed, the warrant would not have issued and the MLAT request would have been denied. In assessing this submission, I keep in mind that search warrants are presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30. Mr. Collier bears the burden of demonstrating that the warrant was not validly issued because the minimum standard required for authorizing the search was not established in the ITO: R. v. Crevier, 2015 ONCA 619, at para. 66. It is not appropriate for me to substitute my view for that of the issuing justice. Rather, my task is to determine whether, based on the record that was before the issuing justice, as amplified on review, the justice could have authorized the warrants. If I conclude that the warrant could have issued, then I am not to interfere, even if I would have come to a different conclusion had I been the authorizing judge: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, at para. 51. While I was not provided with any authority on the standard when assessing a MLAT request, it seems reasonable to approach the review in a similar manner.

[9] With respect to the Ms. Beard photos, in my view the failure to include these photos did not undermine the preconditions for the warrant. It was made clear in both the ITO and the MLAT request that the photos had been sent as a ruse to obtain Mr. Collier’s IP address. At no time did the officer suggest that the photos represented the current age of the Addy persona.

[10] Moreover, if the photos had been included, the justice would have been required to consider the photos against the totality of the information provided as set out above in para. 6. And that information provided reasonable and probable grounds to believe that Mr. Collier had committed offences and that evidence of those offences would be found on his electronic devices. The addition of the two photos would not have undermined those grounds; there would still be a more than sufficient basis upon which the justice could have authorized the search warrant. The same analysis applies to the MLAT request.

[11] Similarly, in my view the failure to include the fact that the Casual Encounters section required a user to declare that they were at least 18 years old would not have undermined the preconditions for the issuance of the search warrant for two reasons. First, as a matter of common sense, I doubt that the justice would have been surprised to learn that the Casual Encounters section was for adults only. Second, the justice would have to consider the age requirement in the context of the totality of information set out in the ITO. And in my view, this information more than supported the reasonable and probable belief that Mr. Collier was implicated in the offences of child luring and making sexually explicit material available to a child and that evidence of these offences would be found on his electronic devices. If the justice had been told of the age requirement, it is clear that the necessary preconditions for issuing the warrant to search would still exist. The same analysis applies to the MLAT request.

[12] The two pieces of information left out of the ITO would not have impacted on the issuance of the warrant. Even if the information had been included, there was ample information set out to allow the justice to find that the ITO established reasonable and probable grounds to believe that Mr. Collier had committed offences and that evidence of those offences would be found on his electronic devices. In the same way, the information left out of the MLAT request would not have impacted on the granting of that order.

[13] I turn now to the argument that the search warrant and MLAT order should be set aside pursuant to my residual discretion.

2. Should the search warrant and the MLAT order be set aside pursuant to my residual discretion?

[14] A reviewing court has a residual discretion to set aside a properly issued search warrant where the conduct of the police subverted the pre-authorization process leading to the issuance of the search authority through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or similar misconduct: R. v. Paryniuk, 2017 ONCA 87, at paras. 66 and 69.

[15] Here, Mr. Collier argues that Officer Sabadin deliberately withheld the Ms. Beard photos and the age requirement for Casual Encounters.

[16] I am unable to accept this argument. Officer Sabadin explained that he did not include the pictures of Ms. Beard as they had been sent as a ruse to obtain Mr. Collier’s IP address, not to depict the Addy persona’s current age. Given that, the officer did not see the need to include the pictures. He had the same explanation for why he did not include the Ms. Beard photos in the MLAT request. Officer Sabadin’s explanation for why he did not include the photos was reasonable, understandable and credible. I reject the suggestion that the officer deliberately withheld the pictures when seeking the search warrant and the MLAT in order to mislead.

[17] Moreover, I am unable to accept the submission that in seeking both the search warrant and the MLAT order, Officer Sabadin deliberately chose to hide the fact that a user of the Casual Encounters section would have to declare that they were at least 18 years old and that it was meant to be an adults-only site. This was not a vigorous screening requirement. There was no moderator enforcing the age requirement of the site or checking identification. Anyone, no matter their age, could access the site. In any event, as noted above, as a matter of common sense it seems unlikely that the issuing justices for the warrant or for the MLAT order would have been surprised to learn that users should be at least 18 years old to use a site called Casual Encounters. Given that, I accept that Officer Sabadin simply did not think to note the age requirement for the site in the ITO or the MLAT request. That is, the failure to include this information was from simple inadvertence and not from a deliberate, bad faith action.

[18] Thus, Mr. Collier has failed to establish that this is a case where I should exercise my residual discretion to set aside the search warrant or the MLAT order.

Conclusion

[19] The information left out of the ITO would not have impacted on the issuance of the search warrant. Even if the information had been included, there was ample information upon which the justice could find that the ITO established reasonable and probable grounds to believe that Mr. Collier had committed offences and that evidence of those offences would be found on his electronic devices. Similarly, the information left out of the MLAT request would not have impacted on the granting of that order.

[20] Further, the information was left out because of inadvertence, not because of deliberate conduct. There is no basis to exercise my residual discretion to set aside the search warrant or the MLAT order.

[21] As a result, the application to exclude the evidence pursuant to ss. 8 and s. 24(2) is dismissed.

Justice Heather McArthur

Date: December 5, 2019