COURT FILE NO.: SCA(P) 1393/19
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
Maria Stevens, for the Crown / Respondent
Respondent
– and –
JAMES O’BRIEN
Appellant
Anthony Marchetti, for the Appellant
HEARD: October 30, 2020
REASONS FOR JUDGMENT
[On appeal from the conviction entered on June 18, 2018 and the sentence imposed on January 19, 2019 by Madam Justice Sandra Martins]
By court order made under subsection 486.4 (1) of the Criminal Code, information that may identify the child complainant described in this judgment may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
J.M. Woollcombe J.
A. Introduction
[1] The appellant, James O’Brien, was charged with possession of child pornography and accessing child pornography. The Crown proceeded summarily and he was tried in the Ontario Court of Justice by Martins J. He was found guilty of possession of child pornography and not guilty of accessing child pornography.
[2] The issue on this appeal against conviction is the admissibility under s. 24(2) of the Charter of evidence obtained from a search of the appellant’s home and electronic devices executed under what the trial judge found was an invalid search warrant.
[3] The sworn Information to Obtain Search Warrant (“ITO”) indicated that in April 2016, police received a report that four images suspected to be child pornography were uploaded as an attachment to an email on March 3, 2016 on a known IP address. The police investigation identified the appellant as the account holder of the internet service at the IP address and that he was resident at the address associated with the uploads. They sought and obtained a search warrant to search his residence for electronic devices and evidence relating to accessing and possessing child pornography. The search warrant was issued on January 16, 2017 and executed on January 19, 2017.
[4] By way of pre-trial motion, the appellant challenged the validity of the search warrant on the basis that it did not disclose reasonable and probable grounds to believe that evidence of the offence, which was alleged to have taken place on March 3, 2016, would still be found in the place to be searched approximately 10 and a half months later, on January 19, 2017.
[5] The only evidence in the ITO that related to grounds to believe that there would be evidence so long after the alleged offence was contained in paragraph 26, in which the affiant said:
Based on my training and experience, I believe that collectors of this type of illegal material keep it for an indefinite period of time and generally do not dispose of or delete their collections. This gives me cause to believe that the passage of any time does not significantly decrease chances [sic] of finding images on a computer system at this address. This is the summary of my belief as to why seizure of the items listed in Appendix A will assist in confirming the person responsible for the attempted upload of the Child Pornography image and afford evidence to assist in proving the offences of child pornography and accessing child pornography.
[6] The trial judge held that paragraph 26 of th4 ITO was misleading because there was no information in the ITO to support the affiant’s suggestion that the suspected user was a collector of child pornography. She thus excised paragraph 26 from the ITO. As a result, she found the ITO contained no evidence to support the affiant’s belief that there would be evidence of the offences at the applicant’s residence and on computers located there 10 and a half months after the alleged offence. Accordingly, she found the search warrant was invalid and that the search constituted a breach of the appellant’s s. 8 Charter right to be protected against unreasonable search or seizure.
[7] The trial judge then conducted the analysis required under s. 24(2) of the Charter, using the framework set out in R. v. Grant, 2009 SCC 32. She concluded that the admission of the evidence would not bring the administration of justice into disrepute.
[8] The appellant alleges two errors were made by the trial judge in her s. 24(2) Charter analysis:
• First, he says that she erred in not finding that the first branch of the Grant inquiry favoured the exclusion of the evidence;
• Second, and in the alternative, he says that she erred under the second branch of the Grant inquiry by under-emphasizing the impact of the breach on the appellant’s Charter protected interests, which led her to improperly determine that the balance favoured admission of the evidence.
B. Applicable Legal Principles
[9] The standard of review of a trial judge’s s. 24(2) conclusion is well-established. As was recently summarized by the Court of Appeal in R. v. P.W., 2020 ONCA 301 at para 25:
[25] The trial judge’s s. 24(2) conclusion is entitled to deference absent an error in principle, a palpable and overriding factual error, or an unreasonable determination: Grant, at paras. 86, 127; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 39; R. v. Buchanan, 2020 ONCA 245, at para. 21. It is not the role of an appellate court to re-weigh the factors in the Grant analysis: Mack, at para. 41.
[10] The Grant framework mandates consideration of whether, in the long term, the administration of justice would be brought into disrepute by the admission of the evidence. Rather than engaging bright line rules, the analysis to be conducted is contextual and fact-specific: R. v. Manchulenko, 2013 ONCA 543 at para. 88. The trial judge must consider three issues: the seriousness of the Charter infringing state conduct, the impact of the breach on the Charter protected interests of the accused and the public interest in adjudication of the case on its merits. While the ultimate decision whether to admit or exclude the evidence is a binary one, there is no requirement for a binary decision at each stage of the analysis: R. v. Just, 2020 ONCA 362 at para 53.
C. Analysis
i) Did the trial judge err in not concluding that the first branch of the Grant test favoured exclusion?
[11] The inquiry under the first branch of the Grant analysis requires a trial judge to situate the police conduct along a spectrum of seriousness or “scale of culpability”. The more severe the state conduct, the greater the need for the courts to distance themselves from it.
[12] At one end of the continuum is conduct that is inadvertent, technical or of a minor nature. This conduct may be seen as blameless. It impacts less on the rule of law and long term administration of justice than conduct that is deliberate or which shows a reckless disregard for Charter rights. At the other end of the spectrum is conduct that is wilful or reckless: R. v. Le, 2019 SCC 34 at para. 143.
[13] In R. v. Harrison, 2009 SCC 34 at para 23, the Supreme Court adopted Doherty J.A.’s analysis in R. v. Kitaitchik, at para. 41, as useful to assist in trying to characterize police conduct:
[23] The metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights… What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
[14] The officer’s conduct in this case needs to be understood in context in order to assess whether the trial judge unreasonably situated it on the seriousness continuum.
[15] Cst. Arkin’s error was justifying in the ITO his reason for believing that there would be evidence in the places to be searched on the basis that “collectors” keep this material indefinitely, without providing any support in the ITO for his view that the suspect user was a collector of child pornography.
[16] It is clear from the trial judge’s reasons that Cst. Arkin was able to explain during his cross-examination four reasons why he believed that the suspect user was a collector of child pornography. Those reasons were: first, that there were four separate images uploaded; second that all of the images uploaded were the same photo or image but were modified, including one image zooming in on the sexualized portions of the bodies; third that the images were uploaded to an email account and often child pornography is traded by email; and, fourth, that the email used had no identifying names or parts and that this is done by collectors or traders of child pornography to conceal their identities.
[17] The trial judge properly recognized that the officer’s evidence could not be used to amplify the ITO and to conclude, retroactively, that the search warrant could have been validly issued. However, she also held that had this additional information been contained in the ITO, there would have been reasonable and probable grounds for the warrant to have issued.
[18] In her assessment of the seriousness of the police conduct, the trial judge said the following:
In this case I find that the conduct of the affiant Constable Artkin somewhere in the middle of that spectrum. This omission in his affidavit regarding the evidence upon which he classified the suspect user as a collector of child pornography is neither an inadvertent or minor violation, nor was it blatant.
I find from his evidence in Cross-Examination that his conduct is best characterized as ineptness. When asked repeatedly in Cross-Examination regarding paragraph 26 of the ITO and its link to why evidence would still be reasonably believed to be at the home 10 and a half months after the alleged offence, he refused to acknowledge that that was in fact the purpose of that paragraph.
His evidence revealed a fundamental lack of knowledge regarding the need to be able to properly articulate why he believed the person may fall into the category of a child pornography collector. Ultimately he was able to point to evidence to support his conclusion, however it was painfully evident that he did not understand the need for the connection between that point and why evidence would still be located at the home 10 and a half months later.
It left the impression that he personally believed that any time child pornography was detected, that regardless of the passage of time his only requirement was to confirm that the person still lived at that residence. This would best be characterized as a fishing expedition.
While those are not the specific facts of this case, as he ultimately was able to provide evidence regarding his opinion, had he included that information in the original ITO there would have been sufficient reasonable and probable grounds to issue the warrant.
Therefore in this case I find that the seriousness of the Charter-infringing conduct is in the middle of the spectrum, and it just barely tips in favour of admission of the evidence.
[19] The appellant’s position is that having made the factual findings that she did about the officer’s conduct (which the appellant suggests amount to findings of negligence and the violation of a long-standing rule governing state conduct), the trial judge was required to conclude that this factor pointed towards exclusion of the evidence.
[20] I do not accept the appellant’s position. In my view, the trial judge fairly judged the nature of the police conduct.
[21] The trial judge properly identified what the officer’s impugned conduct was in his drafting of the ITO. Further, she was critical of the officer’s testimony, particularly because she found he had demonstrated in his evidence that he did not understand the importance of being able to articulate why he believed that the user was a collector of child pornography. She held that his conduct was not inadvertent or minor. She made no excuse for it and characterized it as “ineptness”.
[22] At the same time, the trial judge recognized that the conduct was not blatant and concluded that it fell towards the middle of the seriousness spectrum. This was reasonable in view of her conclusion that the deficiency in the ITO was not the officer’s inclusion of erroneous or misleading information, or that he lacked grounds for believing that there would be evidence in the places to be searched ten and a half months after the alleged offences. Rather, it was that he failed to include in the ITO grounds for his belief which, which had they been included, would have been sufficient for the warrant to have properly issued.
[23] I see the circumstances before the trial judge as very similar to those in R. v. P.W. In that case, the trial judge also found that the ITO lacked sufficient grounds for the search warrant to have issued, but admitted the evidence under s. 24(2). On appeal, the Court of Appeal rejected an argument similar to the one made here, namely, that having found the affiant officer negligent, the police conduct was necessarily so serious that it favoured exclusion.
[24] In considering the appellant’s argument respecting the trial judge’s assessment of the seriousness of the police conduct in R. v. P.W., the Court of Appeal observed that the trial judge had been aware of the affiant’s poor drafting and critical of it, calling it “negligence perhaps”. At the same time, the Court of Appeal characterized the nature of the drafting problem with the ITO not as misleading, but instead, as having left out some propositions that explained why the affiant concluded that there were reasonable grounds to believe that there would be evidence in the place to be searched. Further, the Court of Appeal highlighted that while the affiant failed to articulate her reasoning in the ITO, she did have the appropriate grounds. In these circumstances, the Court of Appeal declined to conclude that the violation was so serious as to warrant exclusion of the evidence
[25] I adopt that reasoning. The trial judge in this case acknowledged the affiant’s drafting error. She recognized the extent to which his evidence reinforced his lack of legal understanding about the importance of evidence to support his view that there would be evidence at the home ten and a half months after the alleged offence. She characterized his conduct as “inept”. But, significantly, she also appreciated that the officer had a proper basis to believe that the evidence would be there and for his belief that the user was a collector of child pornography and that he had proper grounds for the warrant.
[26] In my opinion, in these circumstances, there was nothing unreasonable in the trial judge’s conclusion that the affiant’s conduct fell towards the middle of the spectrum of seriousness and slightly favoured inclusion.
[27] This ground of appeal is dismissed.
ii) Did the trial judge err in under-emphasizing the impact of the breach, an error that led her to err in the balancing and determination to admit the evidence ?
[28] In the alternative, the appellant submits that the trial judge improperly weighed how strongly the second Grant factor pointed towards exclusion of the evidence. Had she weighed this properly, the appellant submits that her ultimate balancing would have led to exclusion of the evidence.
[29] On my reading of the trial judge’s reasons, she agreed with the appellant both about the impact of the breach and that it pointed towards exclusion of the evidence. She cited the opening lines in the Supreme Court of Canada’s decision in R. v. Morelli, 2010 SCC 8 at paras. 2-3, including that 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”. She then held the searches of Mr. O’Brien’s home and computer systems were “significant intrusions into his personal privacy” and that this branch of the Grant test favoured exclusion.
[30] The appellant contrasts the trial judge’s language on the second branch of the Grant test with that used when she assessed the third branch, which she found “points strongly towards the admission of the evidence”. He submits that the trial judge erred in principle by failing to give effect to just how strongly the second branch pointed towards exclusion and that had she done so, she would have weighed all of the factors differently and excluded the evidence.
[31] I do not agree.
[32] The balancing that is to be conducted under s. 24(2) is a qualitative, nuanced one. There is no overarching rule governing how the balance is struck. It is not capable of mathematical precision: R. v. Harrison, at para. 36.
[33] I do not think one can infer from the use of particular adjectives that the trial judge used, or did not use, that she made the error in principle alleged. She found that the first branch of the Grant analysis slightly favoured inclusion. She clearly recognized the very serious impact of the breach on the appellant when she assessed the second branch of the analysis and understood that this pointed towards exclusion of the evidence. She found, as she was entitled to, that the third branch favoured admission. Her ultimate balancing led to a conclusion that the evidence should be admitted. The balancing the factors is a matter within the domain and discretion of the trial judge. I think that the balance she struck was available to her on the basis of her findings. I am not persuaded that there is any basis upon which to interfere with her balancing.
[34] This ground of appeal is dismissed.
D. Conclusion
[35] For the reasons I have set out, the appeal is dismissed.
Woollcombe J.
Released: November 5, 2020
COURT FILE NO.: SCA(P) 1393/19
DATE: 20201105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JAMES O’BRIEN
Appellant
REASONS FOR JUDGMENT
[On appeal from the conviction entered on June 18, 2018 and the sentence imposed on January 19, 2019 by Madam Justice Sandra Martins]
Woollcombe J.
Released: November 5, 2020