COURT FILE NO.: CR-19-40000024-00AP
DATE: 20200929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEPHEN SCHACTER
D. Guttman, for the Crown
E. Neubauer, for Mr. Schacter
HEARD: 17 April 2020
s.a.Q. akhtar j.
On appeal from the conviction entered on 31 May 2018 by Justice Susan M. Chapman of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] On 6 November 2015, the appellant entered the Lawrence Square Employment and Social Services (LSESS) office and inserted a USB key into one of the computers accessible to the public. He was seen, by a number of witnesses, to view what some of them described as “inappropriate” images of a young boy in his underwear. Staff were made aware and the appellant spoke to the LSESS manager admitting ownership of the USB key. He told the manager that he was deleting images from the device and left the LSESS.
[2] Meanwhile, police were contacted and interviewed those who had been present and around the appellant whilst he was at the LSESS.
[3] Acting on information provided by witnesses who had seen the on-screen images, police obtained a search warrant permitting entry and search of the appellant’s home in Toronto. As a result, police seized three USB keys containing numerous images, 48 of which were alleged to fall within the definition of child pornography.
[4] The appellant was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code.
[5] At trial, he brought an application to exclude the evidence obtained by the search warrant alleging a violation of his rights as guaranteed by s. 8 of the Charter of Rights and Freedoms.
[6] The trial judge dismissed the application, admitted the evidence, and convicted the appellant.
Grounds of Appeal
[7] The appellant appeals the conviction on the following grounds:
The trial judge erred in finding that the Information to Obtain the warrant (ITO) contained sufficient grounds to believe a search of the appellant’s address would yield evidence of the offence being investigated;
The judge failed to explain why the correct standard for review was met by the ITO;
The judge erred in her conclusion that the ITO disclosed anything more than a suspicion that the offence had been committed.
The Information to Obtain
[8] The ITO listed a number of items that the police were looking for as evidence. These included electronic devices such as smartphones, computers, hard drives, USB drives, DVDs, digital storage devices, as well as electronic documents such as emails, internet logs or computerised files. More specifically, the ITO identified a “black USB drive” as one of the search targets as this had been the item that witnesses had seen the appellant using at the LSESS.
[9] The affiant outlined his understanding of the law relating to child pornography as defined within the Criminal Code. The affiant also provided his history of investigating “hundreds of offences involving internet crimes against children”. The affiant stated his belief that individuals who download or collect child pornography files retained that material for lengthy periods in multiple storage devices. Moreover, the affiant described that the prohibited data was also easily transferrable onto other digital devices.
[10] The affiant’s view that evidence relating to the investigation would be found at the appellant’s address was based on his experience. He wrote:
[p]eople do not throw out their computer hard drives, even as they become outdated or stop working. I have found hard drives in drawers, shoe boxes, under desks and sitting on shelves. Even if the drive is not suitable to use as a backup, people will still keep them, out of concern for their personal privacy and what could be potentially be recovered from them (i.e. Illegal material, bank information, credit card information, personal documents, etc.). [The appellant] used the black USB drive as recently as November 6th 2015 and he is obviously, based on the fact that he “...quickly minimized...” the his screen (sic) and “...pulled out the USB...” as soon as he was approached by security, very protective of the contents of the drive.”
[11] The affiant believed the appellant would continue to use the black USB drive until it stopped working and “would possess it one form or another.”
Legal Principles
[12] A constitutionally challenged ITO is presumed to be valid and the onus of establishing its invalidity in a Charter application rests upon the challenging party: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83.
[13] It is now well established that the review of a judicially authorised warrant does not involve a de novo hearing of the validity of the warrant where the reviewing judge substitutes their view for that of the authorising judge.
[14] There must be an evaluation of the record placed before the authorising judge to determine whether it disclosed sufficient evidence upon which the judge could have issued the authorisation: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99. Any facts that the affiant knew or ought to have known were inaccurate must be excised from the ITO and cannot be considered: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 119-121.
[15] In order to persuade an issuing justice to authorise a warrant, the ITO must set out reasonable and probable grounds to believe an offence has been committed and that evidence relating to that offence will be found at the place to be searched: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168; Sadikov, at para. 84. The party challenging the warrant must establish that there was no basis upon which the authorising judge could have issued the warrant in order for it to be invalid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 8. When deciding the issue, the reviewing judge must look at the totality of circumstances set out in the ITO to determine whether the police had made out reasonable and probable grounds that an offence had been committed and evidence relating to that offence would be found at the place to be searched: R. v. Choi, 2013 ONSC 291, at para. 37.
[16] The reviewing judge in this case therefore had to be satisfied that there were reasonable and probable grounds that the appellant was in possession of child pornography and that a search of his residence would yield evidence relating to that possession. As stated in Sadikov, at para. 93, “[p]rovided the evidence in the amplified record was sufficient to support a reasonable inference of evidentiary discovery, the warrant could have issued and the application to set it aside should be dismissed”.
[17] It is also clear that, upon appellate review, deference must be given to the findings of the reviewing judge. In Sadikov, at para. 89, the court summarised this principle in the following way:
[A]s amplified on the review and her disposition of the s. 8 application. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge's decision [citations omitted].
COULD THE WARRANT HAVE ISSUED?
The Test
[18] The trial judge’s task in this case was to determine, on the amplified record before her, whether there was sufficient credible and reliable evidence to find reasonable and probable grounds that an offence had been committed and evidence relating to that offence would be found at the place to be searched: R. v. Morelli, at para. 40; Sadikov, at para. 88.
Was there Credible and Reliable Evidence that an Offence had been Committed?
[19] In dealing with this issue, I am obliged to consider the amplified record placed before the trial judge. Here, the evidence consisted of the following facts:
• The applicant entered LSESS carrying a USB stick
• He was seen viewing images of a young boy aged between 8-10 years and dressed only in underwear and described by witnesses as “inappropriate”
• When the security guard walked past on two occasions, the appellant minimised the screen “almost immediately”
• On further investigation, the security guard told the police that he thought the images were “not regular” and “out of the ordinary”
• The guard described the images as being of a white boy aged 7-9 years old wearing only underwear and no top standing straight. A second picture showed the same boy with his hand behind his head, with his legs spread, showing his underwear and exposing his groin area. Both images appeared to be taken against a professional backdrop
• When speaking to a 911 operator, the security guard agreed that the images looked like child pornography and were “indecent images”
• When spoken to by LSESS staff the appellant agreed that USB stick belonged to him and that he was deleting images of family members
• The appellant left the LSESS in possession of the USB stick
[20] The appellant attacks factual findings made by the trial judge and complains that many of the ITO’s significant omissions and deficiencies were too readily overlooked or forgiven.
[21] For example, in his initial notes the affiant indicated that he did not believe that the on-screen material seen by those present at the LSESS amounted to child pornography. This belief, however, was not referenced in the ITO. On the s. 8 voir dire, the affiant explained the absence of this note by stating that the note recorded an initial view which, after further investigation, evolved and changed. Accordingly, the affiant believed that it was not necessary to include it in the ITO.
[22] The trial judge accepted this explanation: she was entitled to do so. I see nothing unreasonable about the explanation requiring intervention. Any cross-examination attacking the credibility of an affiant must relate to whether they knew or ought to have known that the information that they relied upon was untrue: World Bank Group, at para. 119; Sadikov, at paras. 39-40; Pires; Lising, at paras. 40-41. The omission of the note casts no doubt on the accuracy of the information of the ITO in light of the affiant’s explanation and the other witness statements.
[23] I take the same view with respect to the appellant’s claims that the affiant sought to trick the issuing justice by the use of misleading facts in the ITO. The trial judge considered all four areas now advanced by the appellant and found nothing improper. Her decision is entitled to deference.
[24] In the same vein, the appellant complains that the affiant inserted a lopsided view of the case law defining the offence of possession of child pornography.
[25] I find this issue to be a red herring. Dealing with the presence of case law in an ITO, the Court in Lahaie v. Canada (Attorney General), 2010 ONCA 516, 320 D.L.R. (4th) 385, at paras. 24-26, expressed the following comments:
We are sceptical that an affiant police officer has a duty to bring conflicting case law concerning whether a statutory provision discloses an offence to the attention of a justice of the peace considering whether to issue a search warrant.
It is not the function of the justice of a peace (or, for that matter, of the police) to finally determine the question of whether the essential elements of the offence are made out when issuing a search warrant. Rather, that is the task of the trial judge: see CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at paras. 21-22.
Although we agree that it would be improper for a police officer to present a one-sided review of conflicting case law, the essential obligations of the police on a search warrant application are to identify the relevant statutory provision(s) and to present full and fair disclosure of the material facts.
[26] In other words, case law in the ITO is irrelevant and unnecessary as a factor to be considered by an authorising justice in determining whether to issue a warrant. In any event, the trial judge was alive to this principle but found that there was nothing misleading or unfair about the presentation of the law or facts in the ITO and determined that the insertion of the jurisprudence was the affiant’s desire to reference the fact that “neither sexual activity or nudity was required in order for images of children to constitute child pornography”.
[27] Whilst the appellant may complain about the trial judge’s findings on these issues, as the reviewing court, I must defer to those findings absent any material misapprehension of the facts: Sadikov, at para. 89; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 22; and R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 117 O.A.C. 345, 132 C.C.C. (3d) 531 (C.A.), at para. 18, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 168, 150 C.C.C. (3d) vi. Having reviewed the record, I find nothing that warrants this court’s intervention.
[28] If I found to the contrary, those facts would simply be excised from the ITO. However, even with that excision, I find that there was more than sufficient evidence to find that the ITO contained reasonable and probable grounds that a criminal offence of possession of child pornography had been committed. Witnesses saw the appellant looking at images that they later described as being “indecent” and child pornography. When people walked by, the appellant minimised the images on screen. When questioned by staff, the appellant admitted the USB stick containing the images belonged to him.
[29] In R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 209 O.A.C. 162, 207 C.C.C. (3d) 270 (C.A.), at para. 22, the court indicated that “the standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued”. I find the inference that the appellant was looking at and in possession of child pornography is very easily drawn from these facts.
[30] Accordingly, I find that the judge committed no error in finding this part of the test to be satisfied.
Was there Credible and Reliable Evidence that Evidence Would be Found?
[31] The appellant further argues that the judge erred in finding that the ITO disclosed reasonable and probable grounds that evidence relating to the offence of possession of child pornography would be found at the appellant’s residence.
[32] He also claims that the affiant’s experience outlined in the ITO as a basis to show that computer items would be at the residence should have been excised as they constituted “generalisations” about a type of offender -- in this case someone who possessed child pornography -- contrary to Morelli, at paras. 69-84.
[33] In dealing with this argument, it is important to remember that the Court in Morelli found that the generalisations about child pornography offenders were made without factual support. Nor was there any reference to the expertise of the officers voicing their opinions. Moreover, the generalisations concerned “types of offenders” which were undefined as those committing child pornography offences.
[34] That is not what occurred in this case. First, the affiant set out his qualifications and knowledge of forensic investigation of digital storage devices and how data can be retained on these devices even when the user sought to delete the information. Secondly, the officer made clear that in his experience having investigated “hundreds of offences” involving internet crimes that the individuals who download or collect child pornography files retains them for long times in multiple capacities. In other words, the concern set out in Morelli were addressed.
[35] Further, this was not opinion without an evidentiary foundation. Nor was it an unfounded generalisation about “a type of offender”: the affiant was speaking to his own experience in dealing with those child pornography offenders who had downloaded images and st0red them. This evidence has been recognised as being relevant in determining the existence of reasonable and probable grounds: R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494, at para. 55, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 504.
[36] The appellant also submits that there is nothing in the record to demonstrate that he owned a computer or any other digital device as set out in the ITO. In making the argument that the judge erred on this point, the appellant points to the ITO as using “boilerplate” language regarding computers and other forms of digital storage devices. I disagree.
[37] The affiant specified his reasons for believing that child pornography would be found at the appellant’s home. It makes sense that if the appellant had downloaded the images from the internet there would be reasonable grounds to believe that the device that he used to do so was at his residence. I would add that by transferring the images to a USB key, it would be reasonable to believe that the appellant had a device to do so and that device would also be found at his residence.
[38] Finally, one of the specific items identified in the ITO was the black USB key. The appellant was seen to arrive with it, identified it as his own to the staff, and left with it. Although, as the appellant argues, it was possible that he might have thrown it away after leaving LSESS, it was certainly reasonable to believe that he had taken the key back to his residence.
[39] For these reasons, I find that the trial judge made no error in finding the warrant had been properly issued. Accordingly, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 29 September 2020
COURT FILE NO.: CR-19-40000024-00AP
DATE: 20200929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEPHEN SCHACTER
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.