COURT FILE NO.: CR-20-40000372-00000

DATE: 20210601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.S.

COUNSEL: Arian Khader, for the Crown Maija Martin and David Reeve, for A.S.

HEARD: March 19 and May 18, 2021

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on Application To Set Aside Warrants

[1] A.S. is the father of S.S. The Crown alleges that A.S. sexually assaulted S.S. The Crown also alleges that A.S. surreptitiously filmed and took photos of S.S. while she showered and was in the bathroom. The police arrested A.S. and seized his cell phones. They discovered the videos of S.S. on one of the phones. As a result, A.S. is charged with:

• Three counts of sexual assault contrary to s. 271(1) of the Criminal Code;

• One count of voyeurism contrary to s. 162(1) of the Criminal Code;

• Making child pornography contrary to s. 163.1(2) of the Criminal Code;

• Possession of child pornography contrary to s. 163.1(4) of the Criminal Code.

[2] A.S. applies to exclude the evidence from his phone obtained by way of two search warrants. His counsel, Ms. Martin, argues that the affiant misled the justice of the peace and failed to make full and frank disclosure. She further argues that the two search warrants were not validly issued. The videos from A.S’s phone ought to be excluded under s. 24(2) of the Charter. Even if the warrants could have issued, the actions of the police were so egregious that the warrant ought to be set aside.

[3] For the reasons that follow, the application is granted. The videos will be excluded at A.S.’s trial.

BACKGROUND

(a) S.S. Discloses Sexual Abuse

[4] In February 2018 S.S. moved from St. Lucia to Canada to live with her father, A.S. Her father’s wife was N.S. In June 2019, S.S. was a Grade 12 student in Toronto. On June 5, 2019, S.S. spoke to the school safety monitor and the principal of her school. She told them that her father, A.S., had touched her sexually and took photographs of her. She also told them that she was concerned that if she told anyone that he might not pay her university tuition.

[5] That same day, June 5 2019, S.S. went to a police station. She gave a sworn statement to the officer-in-charge (or OIC) of the case. She told the police that S.S., A.S., N.S., and S.S.’s three brothers lived together in a 3-bedroom apartment. One of the three brothers was a 5-month old baby. A.S. and N.S. slept in one room with the baby. S.S. slept in the other room with her two brothers. S.S. described how, a few days earlier, her father came into her room and touched her. She told the police that he touched her buttocks and vagina and that he had digitally penetrated her. S.S. also told the police that N.S. had told her that her father had been watching her in the shower and the bathroom. N.S. showed S.S. some holes in the bathroom wall. There was also a hole in the bedroom wall. N.S. told S.S. that A.S. had been watching her through those holes. According to S.S., A.S. and N.S. had a confrontation. N.S. was unhappy that A.S. was paying so much attention to his daughter – S.S. A.S. blocked the some of the holes with silicone; later, she found that at least one hole had been unblocked and that A.S. continued to watch her through the wall. S.S. also described a discussion with A.S. She said that A.S. asked how she would feel if he “came onto” her. A.S. also said that his wife, N.S., had used witchcraft to “get him to do that”. S.S. also told the police that A.S. had sent messages of apology on WhatsApp. A police officer took photographs of an undated WhatsApp conversation between S.S. and A.S.

(b) A.S. Is Arrested And His Cell Phones Seized

[6] The police arrested A.S. that afternoon. The police seized two cell phones from him. Later that day S.S. took photographs of holes in the bedroom and bathroom wall. She sent the photographs to the OIC. A police officer attended the apartment the same day. N.S. allowed the officer to view the holes in the walls but would not permit him to photograph them.

(c) S.S. Provides Recantation Letters To The Police

[7] After A.S.’s arrest, S.S. provided a typewritten letter to the OIC. The letter was dated June 12 2019. The letter described S.S.’s upbringing and relationship with her father. The letter also stated, in part:

Now that I finished high school and prom was at the corner… I always imagined going to a prom… My father deprived from going to the prom due to financial reasons I couldn’t accept the fact that I was unable to attend the prom that I was longing to attend all my life… I then became upset with my father for not being able to finance prom so all I could think of how I could nail him and how to get revenge, what can I do to get back at him. So I came up with the idea of plotting against him…

[8] The letter went on to describe how A.S. used to come into the room to ensure that “everyone is safe especially my brothers since they are sharing a bunk bed. She went on:

So I took this as an opportunity to nail him. This was not enough to nail him needed more evidence. I remembered the washroom had a hole that was used to hang the mop and the bedroom also had one for calendars. Everything that’s in the phone I know about it. I reminded you of prom and you ignored me so I used the pictures to nail you. I took the phone and set it up I usually fantasize the perfect plot: on June 5th one day before the prom I actually realized that I was not going I thought I needed to carry out my plan.

[9] On July 16 2019 S.S. met with the OIC, Crown counsel, and a representative of the Victim Witness Assistance Program. S.S. handed a letter to the OIC. The letter was dated July 9 2019. The letter stated, in part:

I am [S.S.] and I am writing this letter to apologize to my father, police, and the crown who invested their time into this situation. Most of all I would like to deeply apologize to my father for falsely accusing him… All that I am asking for is for this to be over with and drop all charges.

[10] The OIC asked S.S. who typed the letter. S.S. shrugged her shoulders. When the OIC asked if she typed the letter, S.S. said “not really” and “I’m supposed to give it to you today.” S.S. admitted she was being pressured by family members. The OIC then asked S.S. if things happened the way S.S. had reported them initially. S.S. responded “Yes. I know he’s guilty.” Crown counsel disclosed the letters to counsel for A.S. almost immediately. The letters were in the hands of A.S. prior to the application for the first warrant.

(d) N.S. Is Interviewed By Children’s Aid Society

[11] On August 7 2019 Nadine Balmores, a social worker with the Children’s Aid Society, interviewed N.S., the wife of A.S. and the stepmother of S.S. Ms. Balmores asked some of her questions at the behest of the OIC. N.S. had refused to talk to the police.

[12] N.S. indicated that everything was a shock to her. The holes in the walls were from nails used to hang things on the walls, such as a calendar (in the bedroom) and a mop (in the bathroom). She said that they hadn’t been used in a long time so she asked A.S. to cover them, which he did. She denied knowing anything about voyeurism or sexual abuse.

(e) The OIC Obtains The First Warrant

[13] On September 4 2019, the OIC applied for a warrant to search A.S.’s two cell phones. The OIC summarized S.S.’s allegations in the information to obtain (or ITO, as I will call it): namely, that A.S. had sexually touched her and that he had taken surreptitious videos and photographs of her. The OIC requested permission to search a date range of April 1 2019 to June 5 2019 for communications, and June 1 to June 5 2019 for digital media content. The warrant itself, however – which the OIC drafted – only permitted the extraction of:

• Data relating to use, ownership and access; and,

• Data relating to the configuration of the device or systems.

[14] A justice of the peace granted the warrant on September 6 2019. The Toronto Police Tech Crimes Unit extracted several videos and photographs from one of the cell phones (the police were unable to extract any data from the other cell phone).

[15] The OIC did not disclose the existence of the two recanting letters to the justice of the peace. The OIC also did not disclose the responses of N.S. to the questions asked by Ms. Balmores.

(f) The OIC Obtains The Second Warrant

[16] As a result of this first search, the OIC viewed several photographs that appeared to have no date stamp. The OIC also viewed several videos that were outside the original date range of April 1 to June 5 2019. These were video clips of an unclothed female. S.S. was recognizable in some of the videos. S.S. turned 18 in August 2018. Thus, the videos prior to that date attracted child pornography charges; the videos after that date attracted voyeurism charges.

[17] On July 5 2020 the OIC applied for a second warrant to seize the data that had already been extracted as a result of the first warrant. The warrant authorized a seizure of data from the period July 14 2018 to June 5 2019. The OIC attached the first ITO and the first warrant to the application for the second warrant. The OIC did disclosure that she viewed videos that were outside the original date range of April 1 to June 5, 2019. The OIC did not – again – disclose the recanting letters or the responses of N.S. to the questions asked by Ms. Balmores of the Children’s Aid Society.

ANALYSIS

[18] The defence raises five issues:

(a) Did the OIC fail to make full, fair and frank disclosure?

(b) Is the ITO, as amplified on the review, sufficient to justify the issuance of the first warrant?

(c) Did the grounds for the second warrant rely on unconstitutionally obtained evidence?

(d) Should the evidence be excluded pursuant to s. 24(2) of the Charter?

(e) Should this court exercise its discretion to exclude otherwise properly- issued search warrants?

[19] The standard of review for a search warrant challenged under s. 8 of the Charter is well known, and is set out in R. v. Garofoli, [1990] 2 S.C.R. 1422 at para. 68:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[20] A judge must not ask whether he or she would have issued the warrant, but whether there was sufficient evidence to permit a justice to find reasonable grounds to believe that an offence had been committed and that evidence would be found at the place to be searched: R. v. Morelli, 2010 SCC 8 at para. 40.

[21] I turn to each of the issues raised by the defence.

(a) Did the OIC fail to make full, fair and frank disclosure?

[22] The defence argues that the OIC failed to make full, fair, and frank disclosure of all material facts, including unfavourable facts. There is no doubt that the OIC was required to do so and could not “pick and choose among relevant facts in order to achieve the desired outcome”: R. v. Morelli at para. 58; R. v. Nguyen, 2011 ONCA 465 at para. 48.

[23] Crown counsel argues that the OIC did not hide a material fact. Rather, the OIC failed to include an immaterial fact. That was because the recantation letters were not genuine. S.S. did not recant the allegations at all.

[24] With respect, I disagree with Crown counsel. There is no doubt at all that the OIC failed to make full, fair and frank disclosure in both warrants. The two recanting letters, and the interview of N.S. were clearly material: R. v. Nguyen at para. 51.

[25] Materiality is defined in Watt’s Manual of Criminal Evidence:

§4.0 Materiality

Materiality is a legal concept. It defines the status of the propositions that a party seeks to establish by evidence to the case at large. What matters is whether the fact that the party seeks to prove bears any relation to issues in the case.

What is in issue in a case, thus what is material, is determined by the applicable substantive law, the issues raised by the allegations contained in the indictment, and the applicable procedural law.

[26] There was ample justification for the OIC’s belief that the letters were likely not real recantations did not affect the grounds. That, however, was beside the point.

[27] The truth – or otherwise – of the allegations in S.S.’s statement to the police was clearly a fact that bore an important relationship to the issues in the case. That was beside the point. Whether the recantations detracted or not from the grounds was not the OIC’s decision to make. The letters – and the comments from N.S. to Ms. Balmores – should have been included in the ITO.

(b) Is the ITO, as amplified on the review, sufficient to justify the issuance of the first warrant?

[28] Ms. Martin argues on behalf of A.S. that the first warrant would not have issued if the ITO had included the recanting letters and N.S.’s comments to Ms. Balmores. Had the justice of the peace been aware that S.S. had recanted her original allegations, and that N.S. had denied the incriminating aspects of the evidence, the warrant would not have issued. The undisclosed material is of the type described by Paciocco J.A. in R. v. Booth, 2019 ONCA 970 at para. 56:

… material information required to achieve full and frank disclosure includes all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.

[29] The amplification may include evidence to correct minor errors. These must be errors made in good faith. In R. v. Morelli, Fish J.A. for the majority described at paras. 41-42 what amplification is not: “a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.” It cannot be a means of circumventing the requirement for prior authorization: R. v. Araujo, 2000 SCC 65 at para. 59.

[30] Ms. Martin argues that failing to include the recanting letters and the failure to include the denials of N.S. are more than mere minor, technical failures made in good faith. The OIC’s impression – that S.S. was pressured into submitting the letters – cannot be included since that would amount to fixing a bad-faith error through amplification and subvert the scheme of pre-authorization.

[31] Respectfully, I disagree. As the Court of Appeal pointed out in R. v. Paryniuk, 2017 ONCA 87 at para. 45, “the assessment required by Garofoli is contextual.” The context here is that the sequence of events – the handing of the two recantation letters and S.S.’s comments disavowing them – cannot be artificially carved out. They are part of an entire sequence of events. S.S.’s reactions obviously refute the notion that these recantations were genuine.

[32] Moreover, it would have been open to the justice of the peace to issue the warrant even if only presented with the letters and not S.S.’s reaction to the OIC’s questions. The justice of the peace could have drawn the inference that the two letters were not genuine recantations. The claims in the first letter appear rather ridiculous on their face. S.S. claims that she “took the phone and set it up…” In other words, S.S. took pictures of herself in the shower using A.S.’s cell phone through a hole in the wall in another room. That, according to the letter, explained how S.S. knew about the pictures and videos on the phone. The justice of the peace likely would have been puzzled as to how S.S. was supposedly able to physically take pictures of herself through a hole in a wall in another room while she was showering. Of course, at that time, the police did not know what pictures and videos were on A.S.’s phone as they had not yet been extracted – but the obvious inference is that whoever prepared the letter did know.

[33] A close reading of the second letter would have actually added to the grounds, not detracted from them. It would have been open to the justice of the peace to infer that someone other than S.S. prepared the letter, and that S.S. did not take pictures of herself from another room while she showered. It would have been open to the justice of the peace to draw the inference from the second letter that A.S. prepared it himself, and inadvertently disclosed his knowledge of the videos. Rather than detracting from the grounds to search the phone, the recanting letters (not to mention S.S.’s responses to the OIC’s questions) would have strengthened the grounds. Each of these inferences could have been drawn from the face of the letter.

[34] In cross-examination, the OIC did not believe that the letters detracted from the grounds because they were not real recantations. The OIC did not believe that the two letters were written by S.S., especially given S.S.’s reaction to the questions and the statement “I know he’s guilty.” It is, therefore, a mystery why the OIC would not have mentioned the letters in the two ITO’s. The OIC was clearly not trying to hide the letters – they were disclosed to defence counsel almost immediately. The OIC’s explanation on cross-examination was unsatisfactory, although, in fairness, the OIC did accept that a mistake had been made. I observed the OIC in cross-examination. I do not think the OIC acted in bad faith. Lack of bad faith, however, does not constitute good faith and I am unable to find good faith.

[35] I also find it difficult to understand why the OIC failed to disclose the existence of N.S.’s denials to the justice of the peace. The OIC disclosed the interview notes and the email chain to defence counsel. The OIC’s conclusion – that N.S.’s denials were untruthful – was warranted. It would have been open to the justice of the peace to issue the warrant even in the face of N.S.’s denials. After all, it was S.S. who told the police that N.S. had informed her of the surreptitious videos, disclosures that were corroborated by the holes in the wall. As with the recantation letters, however, the N.S. interview contained material facts that should have been disclosed to the justice of the peace.

[36] I conclude that if the OIC had disclosed the existence of the letters and the N.S. interview, it still would have been open to the justice of the peace to conclude that S.S. had not truly recanted. Despite the lack of good faith on the part of the officer in failing to disclose material facts, I find no breach of s. 8 of the Charter in relation to the first warrant.

[37] Although the first warrant could have issued, the warrant itself did not authorize a search of the digital media.

[38] For reasons that strike me as simply negligent, the first warrant was improperly drafted. The best that can be said about the failure to include terms and conditions in the September 2019 warrant is that it was sloppy. The OIC took care to request in the ITO that the Technological Crimes Unit extract (among other things):

• Data relating communications involving A.S. and S.S. for the time period of April 1st 2019 to and including June 5th 2019; and,

• Digital media content, such as writing, pictures, videos, or sound recordings relevant to the offences of sexual assault and voyeurism for the time period of June 1st 2019 to and including June 5th 2019.

[39] The OIC did not carry these terms and conditions into the draft warrant submitted to the justice of the peace. Thus, the warrant did not authorize any search beyond electronic “tombstone” information and communications. It is possible that on a s. 24(2) Charter analysis the evidence may not have been excluded (assuming no other problem with the ITO or the warrant) but the search that resulted from this first warrant was warrantless.

(c) Did the grounds for the second warrant rely on unconstitutionally obtained evidence?

[40] There were three major problems with the second warrant: as noted, the first warrant did not actually authorize any search of the extracted digital media; second, even if the first warrant had authorized a search the OIC’s review was well outside the bounds of the terms and conditions that would have been authorized; and third, the second ITO once again failed to mention the recanting letters or the N.S. interview.

[41] As noted, Toronto Police Tech Crimes extracted data, including digital media, from one of the phones. The OIC received the data from the Tech Crimes Unit in March 2020. The extracted data included thumbnails of 48 photos in the “Images” folder. The extracted data also included 48 videos in the “Videos” folder. The OIC then proceeded to click on the various photo thumbnails. The OIC then did the same for videos that contained images of what appeared to be S.S. The OIC then viewed some 18 videos. Those videos appeared to have been taken through holes in walls. They were videos of S.S. unclothed or partially clothed, in her room or in the shower.

[42] These searches were all warrantless. As well, almost all of these videos were outside the date range that was originally requested in the first ITO – and would have been warrantless even if the warrant had been properly drafted. Thus, the application for the second warrant essentially asked that the justice of the peace, in effect, ratify the warrantless search already conducted by the OIC.

[43] Ms. Martin argued that all of the evidence set out in the second warrant of the photos and videos viewed by the OIC should be excised: R. v. Garofoli at para. 67; R. v. Morelli at para. 45; R. v. Booth at para. 58. These videos and photos that form the basis of the ITO were obtained in an unconstitutional search of A.S.’s phone. Ms. Martin provided a copy of the ITO with the suggested excisions. I agree with Ms. Martin that the evidence should be excised.

[44] Crown counsel points out that the first ITO and the first warrant were appended to the second ITO. That means that the justice of the peace was (at least by implication) aware that the OIC had viewed data outside the date range requested – and in violation of the technical terms of the first warrant. Respectfully, that is beside the point. There are simply no grounds to search for digital material outside the date range after excising the unconstitutionally obtained material.

[45] Of course, there would have been enough evidence in the second ITO to authorize the seizure of digital material from the original date range – for the same reasons that there was enough evidence in the first ITO. That was not, however, what the second warrant sought to do.

[46] I therefore agree with the defence that the second warrant breached s. 8 of the Charter.

(d) Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[47] The Supreme Court of Canada set out the test for the exclusion of evidence pursuant to s. 24(2) of the Charter in R. v. Grant, 2009 SCC 32 at para. 71. The court must balance the effect of admitting the evidence on confidence in the administration of justice, having regard to:

• The seriousness of the Charter-infringing state conduct;

• The impact of the breach on the Charter-protected interests of the accused; and

• Society’s interest in the adjudication of the case on its merits.

[48] I will deal with each of these in turn.

(i) The seriousness of the Charter-infringing state conduct:

[49] In R. v. Harrison, 2009 SCC 34 the Supreme Court of Canada described the proper approach to take to this branch of the Grant test at para. 22:

At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[50] The breaches in this case were serious. They were also cumulative.

[51] The failure to make full, fair, and frank disclosure of the recanting letters and the N.S. interview answers was quite serious even if it did not result in a specific Charter violation. As noted, I accept the explanation that the OIC simply did not think that these material facts detracted from the grounds. To repeat, , however, an absence of bad faith does not equal good faith, and it is difficult to find good faith in light of the recurring problems. The failure to make full, fair and frank disclosure may not have resulted in a Charter violation but it cannot be severed from the entirety of the police conduct as if it never happened. It colours the subsequent Charter violation, which was more serious.

[52] The specific violation that concerns me for Charter purposes is less the non-compliance with the poorly-drafted warrant than the OIC’s decision to view all of the digital media in violation of the very terms that the OIC had requested in the first place. The viewing of all the videos extracted from the phone in the circumstances of this case was a very serious violation. Police officers executing a warrant are supposed to enter the place to be searched and seize the things they are authorized to seize. They may seize anything else incriminating that is in plain view; they may not root around in nooks and crannies to see if they can find something else. The OIC, an experienced officer who should have known better, basically did just that.

[53] It is important to emphasize that the OIC was not obliged to simply ignore the thumbnails of pictures and videos when she realized what was there. The OIC could have easily applied for a fresh warrant, with a fresh date range. Such a warrant almost certainly would have been granted. The OIC’s decision not to so does not convey a great desire to comply with the system of prior authorization.

(ii) The impact of the breach on the Charter-protected interests of the accused:

[54] As noted, the expectation of privacy in a cell phone is very high. For most of us, our cell phones carry our most intimate correspondence, point out our family and friends, illustrate our interests and preferences, often include our private health information, map out our daily travel and routine, and generally carry much of the “biographical core of information” protected by s. 8 of the Charter: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 293; R. v. Morelli at para. 105.

[55] An unauthorized search of a cell phone quite obviously has a very serious impact on the Charter-protected interests of the accused. It is difficult to imagine a greater invasion of privacy than the unauthorized search of a cell phone: R. v. Vu, 2013 SCC 60 at para. 40; R. v. Morelli at para. 105. In this case, the OIC took the liberty of viewing all of the extracted digital media. That was fairly close to an electronic fishing expedition that went well beyond a mere plain view search of thumbnails that caught the eye (although a well-drafted warrant would have the disinterested Tech Crimes officers simply extract the material, guided from the search terms). The search may have encompassed all manner of private, yet perfectly legal data. The Supreme Court of Canada has repeatedly stressed the importance of protecting that data from unauthorized searches. I find that the impact on the Charter-protected interests of the accused was very high.

(iii) Society’s interest in the adjudication of the case on its merits:

[56] R. v. McGuffie, 2016 ONCA 365 at para. 63, Doherty J.A. noted that “In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence…”

[57] I think it is important to note that Doherty J.A. was not laying down a rule, although that is how some courts have interpreted it. Rather, as the Supreme Court of Canada stated in R. v. Paterson, 2017 ONCA 15 at para. 56, it is important not to allow the third factor to:

… trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant's Charter right.

[58] In R. v. Omar, 2018 ONCA 975 at paras. 109 to 121 Brown J.A. in dissent noted that care must be taken not to elevate Doherty J.A.’s practical observation to a rigid formulation. Brown J.A.’s dissent was adopted by the Supreme Court of Canada: R. v. Omar, 2019 SCC 32.

[59] This case has some features similar to R. v. Reeves, 2018 SCC 56. Reeves was charged with assault on his common law spouse. His spouse alerted Reeves’ probation officer that she had found child pornography on a shared computer. A police officer attended the house. The spouse granted permission to the officer to enter the residence and take the computer. Reeves was in custody at the time. The police did not make a report to justice. They also did not obtain a warrant to search for more than four months. When they did, the police found child pornography. The trial judge found that Reeves still had an expectation of privacy in the computer; that the police breached s. 8 of the Charter by failing to comply with the detention scheme in s. 489.1 and s. 490 of the Criminal Code; and that the ITO was misleading, unbalanced, and unfair. The trial judge excluded the evidence and acquitted Reeves. The Court of Appeal reversed.

[60] In the Supreme Court of Canada, Karakatsanis J. for the majority agreed with the trial judge. She found that Reeves retained a residual privacy interest in the computer. She also agreed with the trial judge that taking the computer without a warrant violated s. 8 of the Charter. In a comment that echoes this case,

… the officer could not explain why the police had detained the computer for months without respecting the reporting requirements in ss. 489.1 and 490 of the Criminal Code.

[61] On s. 24(2), Karakatsanis J. found that the breach was a serious one. She also found (at para. 66) no reason to disturb the trial judge’s finding that the impact on the Charter-protected rights of the accused was significant. Regarding society’s interest in the adjudication of the case on the merits, Karakatsanis said this at para. 67:

With respect to society's interest in the adjudication of this case on its merits, I agree with the application judge that it was strong. The unconstitutional search and seizure of the computer revealed reliable evidence that was important to the prosecution's case (see Grant, at paras. 81 and 83). Further, as the application judge and the Court of Appeal both noted, the alleged offences were serious. Child pornography offences are "particularly insidious" (Morelli, at para. 8). Cases in which a court must decide whether to exclude probative evidence of a serious crime are always challenging. However, the seriousness of the offence "has the potential to cut both ways" in assessing whether evidence should be excluded (Grant, at para. 84; see also Paterson, at para. 55). Indeed, "while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach" (Grant, at para. 84).

[62] Those comments apply to this case.

(iv) Conclusion on s. 24(2):

[63] Regrettably, I find that the balance favours exclusion of the digital media seized from A.S.’s cell phone. The evidence is inadmissible at trial. The accumulation of Charter violations, and the approach to full, fair, and frank disclosure lead me to that conclusion, even in the face of real evidence of a serious crime.

[64] The case for the Crown will not entirely collapse. The Crown is still free to pursue the other charges. That said, it sticks in the judicial craw to exclude real evidence of a sexual crime involving a child. This is a most unfortunate result. The perspective of Justice Doherty is instructive. He said this in R. v. McGuffie at para. 83:

The court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence. In doing so, the court acquits a person who is clearly guilty of serious criminal offences. In my view, the long-term interests of the due administration of justice require the exclusion of the evidence. This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.

(e) Should this court exercise its discretion to exclude otherwise properly-issued search warrants?

[65] This court has a discretion to exclude evidence obtained from a validly-issued warrant where the police conduct has been so egregious that it has subverted the system of prior authorization: R. v. Paryniuk at para. 69. It is a discretion that should be invoked sparingly. Given my conclusion that the videos seized from A.S.’s cell phone must be excluded, it is unnecessary for me to decide this issue.

DISPOSITION

[66] The application is granted.

Released: June 1, 2021