COURT FILE NO.: CR-18-00000016-00MO

DATE: 20210105

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant

– and –

GREGORY HIBBERT Respondent/Person Sought for Extradition

Heather J. Graham, for the Applicant

Leo Adler, for the Respondent/Person Sought for Extradition

HEARD at Kingston: 2 and 3 November 2020 (by videoconference)

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Mew J.

REASONS FOR DECISION

(Application pursuant to section 29 of the Extradition Act)

[1] Gregory Hibbert is a person sought for extradition by the United States of America for the purpose of prosecution. An Authority to Proceed (“ATP”) was issued on behalf of the Minister of Justice on 17 November 2017, authorising the Attorney General of Canada to proceed to seek an order for Mr. Hibbert’s committal for the offence of making child pornography, contrary to section 163.1 (2) of the Criminal Code.

[2] Mr. Hibbert was arrested on 27 February 2018 pursuant to a warrant issued under the Extradition Act. At the time of his arrest, he was in custody serving a three-year sentence imposed following a guilty plea and conviction in Canada, on 30 August 2017, for two counts of voyeurism, one count of making child pornography, and one count of accessing child pornography.

[3] The Attorney General, on behalf of the United States, now applies for the committal of Mr. Hibbert into custody to await surrender for the offence set out in the Authority to Proceed. Mr. Hibbert opposes the application and seeks a stay or dismissal of the extradition proceeding.

Overview

[4] When Mr. Hibbert was arrested on the Canadian charges on 7 July 2016, he had been staying with the mother of one of his Canadian victims, who was hosting him at her home in Kingston. She turned Mr. Hibbert’s devices over to Kingston Police. The devices were examined pursuant to a warrant issued on 9 August 2016.

[5] The alleged conduct underlying the American charges is grounded on seven photographs which were taken of a 3-year-old child while Mr. Hibbert was visiting and staying at the home of a Tennessee family. These photographs were discovered in the course of the Canadian investigation; specifically, during the examination of Mr. Hibbert’s devices. Evidence was then shared with U.S. investigating authorities.

[6] There are no witnesses to the taking of the photographs, which were discovered only due to the seizure and examination of Mr. Hibbert's personal devices by the Kingston Police.

[7] Section 32(2) of the Extradition Act, S.C. 1999, c. 18, mandates compliance with the domestic rules of evidence in respect of evidence gathered on Canadian soil which forms the basis for an extradition request.

[8] Mr. Hibbert asserts that the seizure and search of the photographs which form the foundation for the United States charges, his arrest in Kingston, and a statement which he gave to the Kingston Police subsequent to his arrest, were all unlawful under Canadian law, and, accordingly, that this court should not make the committal order sought by the Attorney General.

[9] It is common ground between the parties that if this court decides that the photographs were lawfully obtained, the record would be sufficient to result in an order of committal being made. This would be so even if the statement given by Mr. Hibbert to the police following his arrest was excluded.

Procedural History

[10] In 2018, Mr. Hibbert brought an application seeking, inter alia, orders excluding and prohibiting the use of all evidence obtained unlawfully, and a dismissal or stay of the extradition proceeding.

[11] The Attorney General moved for summary dismissal of that application. For reasons reported at 2018 ONSC 7400, I ruled that most of the relief sought in Mr. Hibbert’s application should proceed to a full hearing.

[12] One of the arguments previously raised by the Attorney General was that Mr. Hibbert could have, but chose not to, assert his challenges to the lawfulness of the obtaining of evidence against him during the course of the Canadian proceedings. However, as he pleaded guilty, there was no previous judicial determination of the lawfulness of the manner in which any of the evidence was obtained. Nor are the parties in this proceeding the same as in the Canadian criminal case. Accordingly, I held that the requirements of issue estoppel were not met. As a consequence, these arguments were not raised again at the hearing of the substantive application.

[13] In June 2019, Mr. Hibbert completed his Canadian sentence and was granted bail pending the hearing and disposition of this application under section 29 of the Extradition Act.

[14] Mr. Hibbert also unsuccessfully challenged the constitutionality of sections 2(2) and 2(3) of the Department of Justice Act, R.S.C. 1985, c. J-2, insofar as it applies to the Extradition Act and, specifically, the provisions that vest in a single elected individual the distinct roles and responsibilities of the Minister of Justice and the Attorney General: reported as United States v. Norbu, 2019 ONSC 7123.

Facts

[15] The following facts are taken from the Record of the Case presented by the United States Attorney for the Western District of Tennessee in support of the extradition request by the United States (“ROC”), the Agreed Statement of Fact filed with the Ontario Court of Justice in Kingston at the hearing of Mr. Hibbert’s guilty plea on 30 August 2017 in the Canadian criminal case, and the Information to Obtain a Search Warrant dated 9 August 2016.

[16] There are some inconsistencies in the times and details contained in these documents. While it is not argued that any of these inconsistencies is material to the issues to be resolved on this application, the inconsistencies are said to represent a lack of care and attention on the part of the Canadian state actors in the discharge of their responsibilities.

[17] At the time of his arrest, Mr. Hibbert had been visiting SZ, a long-time friend in Kingston, with whom he had previously been briefly involved with romantically. SZ’s eight-year-old daughter lived with her. Mr. Hibbert’s stay at SZ’s residence had commenced on either 30 June or 1 July 2016.

[18] On 6 July 2016, KN, the father of SZ’s child, visited SZ and Mr. Hibbert at SZ’s residence. While there, he went to use the washroom. He noticed a shower radio with what appeared to be two “camera holes” in it hanging from a towel rack facing the toilet and shower. KN initially said nothing to SZ or Mr. Hibbert about the radio, but was suspicious.

[19] On 7 July 2016, KN, who had a key to the residence, went back to “check” the radio. By then, it was no longer in the bathroom, but he located it unplugged beside the bed in what was usually his daughter’s bedroom, but which Mr. Hibbert was using during his visit (there was no claim that the child was simultaneously also staying in that room).

[20] KN took the device apart and found a camera and recording device inside the radio. KN then told SZ what he had found. Together, they then went into the room which, by then, Mr. Hibbert had been sleeping in for five days, and located a number of additional electronic devices, cables, digital camera equipment, and storage devices. They agreed that SZ and their daughter should leave, while KN called the police.

[21] The police responded to the call and spoke to KN at SZ’s residence. KN permitted police to enter the residence and took them to Mr. Hibbert’s shower radio and other belongings. Meanwhile, SZ, her daughter and Mr. Hibbert had gone to another friend’s place. After speaking with KN, police attended at the address of the other friend and arrested Mr. Hibbert on a voyeurism charge without a warrant. His cell phone was seized incident to arrest.

[22] After arrest, police reattended SZ’s apartment and with her consent collected and seized all of Mr. Hibbert’s electronic equipment, including the contents of a separate cardboard box containing a web camera and other electronic devices.

[23] Mr. Hibbert was taken to the police station, arriving there at 21:27. He spoke to duty counsel regarding the one count that he had been told about at 21:45. A recorded interview of Mr. Hibbert was then conducted by Detective Constable Clint Wills of Kingston Police from 22:50 to 23:30.

[24] During the course of the interview, D.C. Wills showed Mr. Hibbert the seized shower radio. When asked by Mr. Hibbert how he had obtained it, D.C. Wills explained that KN had discovered the device at SZ’s residence.

[25] On 9 August 2016, D.C. Wills presented an Information to Obtain a Search Warrant (“ITO”), which was granted. The search warrant identified the electronic devices that had been seized on 7 July and placed in the Kingston Police Property Room since then. In the ITO, D.C. Wills stated that the items seized would be forensically examined. However, the resulting warrant did not specify or mention that the items could be taken for forensic searching.

[26] Police Constable Derek Frawley, a trained Child Victim Forensic Analysis Investigator, performed data extraction operations on the devices between 9 and 24 August 2016. Among the images that were found were a set of seven images of a young (estimated to be under the age of 5) female child sitting on a toilet. The camera is focused on the child’s genital area. Metadata indicated that the images were created on 28 June 2016 in Cordova, Tennessee. In five of the seven photographs, the child's genitals are clearly visible and in two others the child's thigh partially blocks the view of her pubic region.

[27] Prior to 9 September 2016, the United States Department of Homeland Security was in possession of Canadian evidence sent to them by the Kingston Police. This information was shared on an “informal police to police” basis without any application having been made under the Mutual Legal Assistance Treaty ("MLAT") or any other statutory or judicial authority.

[28] On 9 September 2016, Homeland Security Investigation agents met with the parents of a three-year old girl in Cordova (Memphis), Tennessee, who confirmed that Mr. Hibbert had visited them at their home between 22 and 29 June 2016. During the course of that visit, Mr. Hibbert had babysat the little girl for a day. They were able to confirm that the seven images created on 28 June in Cordova had been taken in their home and were of their daughter.

[29] A Report to a Justice was made by D.C. Wills in purported compliance with section 489.1 of the Criminal Code on 18 November 2016. On 23 November, a Justice of the Peace ordered the continued detention of the items seized until the completion of all court proceedings.

[30] Mr. Hibbert, who at the time had no criminal record, was held in custody from the time of his arrest until he was released on bail on 15 September 2016. He then returned to live with his family in British Columbia, subject to a number of conditions, until he came back to Ontario a little under a year later to enter his pleas and commence his sentence.

[31] On 14 December 2016, and unbeknown to Mr. Hibbert, a Grand Jury in the Western District of Tennessee of the United States District Court indicted Mr. Hibbert on three counts, which the Assistant United States Attorney summarises as "producing images of child pornography - i.e., Visual depictions of the minor engaged in sexually explicit conduct, which includes the lascivious display of the genital or pubic area". The equivalent Canadian offence is making child pornography contrary to section 163.1(2) of the Criminal Code.

[32] On 9 May 2017, the Crown elected to proceed by indictment on the Canadian charges. Mr. Hibbert elected to have his trial in the Ontario Court of Justice.

[33] On 30 August 2017, Mr. Hibbert pleaded guilty in the Ontario Court of Justice to two counts of voyeurism, one count of making child pornography and one count of accessing child pornography. These charges arose from images taken of the SZ’s daughter in Kingston in July 2016 and images taken in Bowmanville in June 2016 of the nine-year old daughter of another friend of Mr. Hibbert’s. These images had been obtained from one or more of the devices seized on 7 July.

[34] Mr. Hibbert states that he was unaware, at the time of his guilty plea to the Canadian charges, that an indictment had already been filed in Tennessee. He was sentenced to three years in prison, less a credit for one hundred and five days arising from his pretrial custody. He remained in prison until his statutory release date on 20 June 2019.

[35] On 2 November 2017, the United States requested the extradition of Mr. Hibbert to face trial in Tennessee. On 17 November 2017, the Minister of Justice of Canada authorised the Attorney General of Canada to bring extradition proceedings against Mr. Hibbert. On 20 February 2018, Mr. Justice Schreck signed a warrant for Mr. Hibbert's arrest in relation to the extradition request. As already noted, he was formally arrested on 27 February 2018 pursuant to that warrant.

The Role of the Extradition Judge

[36] The role of the extradition judge is prescribed by statute. Section 29(1)(a) of the Extradition Act provides:

(1) A judge shall order the committal of the person into custody to await surrender if

(a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person is the person sought by the extradition partner …

[37] As the Supreme Court of Canada explained in M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 22:

The extradition judge is to determine two things: (1) whether “there is evidence admissible under this Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the authority to proceed”; and (2) “that the person [before the court] is the person sought by the extradition partner” (s. 29(1)(a)). Committal is ordered if the judge finds that these conditions exist; if not, the person must be discharged: s. 29(1)(a) and (3). This means that the requesting state must show that it has evidence available for trial that would justify committal for trial in Canada for the Canadian offences specified in the ATP.

[38] The function of determining whether there is evidence available to justify the committal is informed by section 32 of the Extradition Act. Subsection (1) deals with certain evidentiary presumptions, including the admissibility of the documents contained in the ROC. Subsection (2) requires that “[e]vidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted”.

[39] In United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, Charron J., at para. 21, outlined a two-step approach to review of the admissibility of Canadian-gathered evidence:

The evidence may first be presented to the extradition judge as part of the record of the case, in the form required under s. 33. As such, it is presumptively admissible in summary form under s. 32(1). Section 32(2) then requires the court to scrutinize Canadian-gathered evidence for compliance with Canadian law. It is therefore insufficient for the requesting state to certify that the Canadian-gathered evidence is available for the prosecution and would be admissible in its own jurisdiction. If gathered in Canada, the evidence must also “satisfy the rules of evidence under Canadian law in order to be admitted”. Canadian rules respecting the admissibility of evidence necessarily include the Charter, as the Charter is the supreme law of the land. Consequently, s. 32(2) must also be read as contemplating the potential exclusion of otherwise admissible evidence under s. 24(2) of the Charter when it has been obtained in a manner that contravenes the Charter.

[40] The applicant, while acknowledging this court’s role in evaluating whether Canadian-gathered evidence was obtained in accordance with Canadian law, including the Charter, serves a reminder that the extradition hearing is not a trial but, rather, is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 122.

[41] Thus, it is not part of the extradition judge’s function to evaluate the evidence relied on in the ROC. As Cromwell J. stated in M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 63, “[i]t is only where the evidence supporting committal is “so defective or appears so unreliable” or “manifestly unreliable” that it would be “dangerous or unsafe” to act on it that the extradition judge is justified in refusing committal on this basis”.

[42] It follows, however, that it is part of the extradition judge’s function to determine whether the Canadian-gathered evidence contained within the ROC was obtained in compliance with Canadian law and, if it was not, whether the application of Canadian law would render such evidence inadmissible for the purposes of evaluating whether there would be sufficient evidence on the offence set out in the ATP to justify committal for trial in Canada.

Issues

[43] Mr. Hibbert resists extradition on the principal ground that evidence upon which the American prosecution will be founded was obtained in Ontario in violation of his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. Specifically, he alleges that:

(a) His arrest without a Feeney[^1] warrant was unlawful.

(b) The warrantless search and seizure of his belongings, from his private room at SZ’s apartment, by the Kingston Police in the absence of exigent circumstances, was unlawful, being contrary to the relevant provisions of the Criminal Code and section 8 of the Charter.

(c) The ITO of 9 August 2016 was not full, fair, and frank in its disclosure, as required by the Criminal Code, also resulting in a breach of section 8 of the Charter.

(d) Assuming that the search warrant was properly issued, its specific wording authorised the police to only "search for the above things, and to bring them before me or some other Justice to be dealt with according to law," rather than to take the items for forensic searching and examination. The forensic evidence that was subsequently obtained was, accordingly, obtained contrary to section 8 of the Charter.

(e) The Report to the Justice was not filed until on or about 18 November 2016, over four months after the initial seizure and more than three months after the issuance of the search warrant, contrary to the requirement in section 489.1 of the Criminal Code to make such a report “as soon as practicable”. This resulted in an illegal over-holding, as well as a failure to provide proper notice to him of any hearing, as required by section 490(2) of Criminal Code, and, thus, yet another breach of his section 8 Charter rights.

(f) Kingston Police failed to properly caution him before interviewing him in connection with, inter alia, events in Tennessee.

(g) The “informal” sharing of evidence of his conduct in Canada was illegal and improper.

(h) The violations of his legal rights and in particular, the violation of his Charter rights should lead to the exclusion of all such evidence from consideration by this court in accordance with sections 24(1) and/or (2) of the Charter, resulting in an absence of evidence to justify committal under the Extradition Act.

(i) Alternatively, due to the violations of his legal and Charter rights, a stay of the extradition application should be ordered due to abuse of process.

Analysis and Discussion

Arrest

[44] Mr. Hibbert argues that he should not have been arrested without a Feeney warrant. At the time of his arrest, he was with SZ and her daughter visiting a friend of SZ’s at the friend’s residence.

[45] The Attorney General responds that a Feeney warrant is required for a forced entry into the home of the target to effect an arrest, not where, as in the present case, the police are invited inside by the homeowner to arrest a third person. The ITO discloses that the homeowner invited police inside and directed them to Mr. Hibbert, who was in the basement of the residence at the time.

[46] This submission seems to ignore R. v. Adams (2001), 2001 CanLII 16024 (ON CA), 203 D.L.R. (4th) 290, 157 C.C.C. (3d) 220 (Ont. C.A.), which confirmed that the Feeney decision established that the warrant requirement is not limited to arrests in a suspect’s own dwelling house.

[47] While section 529.3(1) of the Criminal Code does permit a police officer to enter a dwelling house for the purpose of arresting or apprehending a person without a warrant, the officer must not only have had reasonable grounds to believe that the person is present in the dwelling house (which the arresting officer in the present case did have) and the conditions for obtaining a warrant to enter a dwelling house existed, but, by reason of exigent circumstances, it would have been impracticable to obtain a warrant.

[48] The evidentiary record does not disclose whether the place and timing of Mr. Hibbert’s arrest arose out of the concern that, if he was not arrested when he was, there was a risk of imminent loss or destruction of evidence. What is beyond doubt is that the police went to the friend’s residence with the intention of arresting Mr. Hibbert and had reliable information that he was there.

[49] The lack of an explanation for not obtaining a warrant is troubling. However, it was not raised as a concern during the Canadian criminal case. Nor was leave sought in this proceeding to adduce further evidence from the officers concerned about the circumstances of Mr. Hibbert’s arrest (as opposed to the warrantless search which resulted in the seizure of his personal electronic equipment and media devices, in which respect an application to cross-examine the officers concerned was made by the defence, but denied by me: reasons reported at 2019 ONSC 2805).

[50] By reason of the foregoing, the record is not sufficient for me to conclude that the officers arresting Mr. Hibbert entered the house where they effected that arrest unlawfully.

Warrantless Seizure of Property

[51] Kingston Police did not obtain a warrant before seizing Mr. Hibbert’s electronic devices. Rather, the devices were handed over to the police by SZ, who was the homeowner of the residential premises that Mr. Hibbert was staying at.

[52] The Attorney General argues that a warrant was not required to seize the devices. Mr. Hibbert had no reasonable expectation of privacy in the bedroom that he was temporarily staying in. Rather, he had chosen to leave his devices in a room that he had no control over. Furthermore, while the police took custody of the devices without a warrant, they were not searched until a warrant had been obtained.

[53] Mr. Hibbert takes a contrary view on his reasonable expectation of privacy. While he may have been a temporary resident, for the duration of his visit he had been given the exclusive use of the bedroom and was entitled to expect that he could leave his property in the bedroom without intrusion from others, including SZ and KN and, of course, the police. Instead, his shower radio was taken apart and then, while he was diverted away from the house, his personal belongings were searched through by KN. Subsequently, SZ permitted the police to gather the items, label them, take an inventory and remove them without a warrant. There were no exigent circumstances, the objects were not seized incident to arrest and there was no evidence of any effort made to obtain a warrant or a telewarrant. He also argues that even if he had no privacy expectation in relation to the room, he had such an expectation in respect of the devices he left in the room.

[54] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court held that an individual’s right to challenge the legality of a search depends upon whether the individual had a reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. The reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances, including: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. (see Edwards, at para. 45)

[55] If a reasonable expectation of privacy is established, the court must then determine whether the search was conducted in a reasonable manner.

[56] In Edwards, the police seized drugs which they found in the accused’s girlfriend’s apartment after she had allowed the police to enter. The police did not have a warrant. The girlfriend testified that the accused was “just a visitor” who stayed over occasionally. He did not contribute to the rent or household expenses. Although he had a key to the apartment, it was found that he did not have the ability to exclude others from the premises, in that the girlfriend could have admitted anyone to the apartment whom the accused had wished to exclude. The Supreme Court regarded the fact that the accused could not be free from intrusion or interference in his girlfriend’s apartment as a very important factor in confirming the finding in the lower courts that he did not have a reasonable expectation of privacy. He was no more than “a privileged guest”: Edwards, at paras. 47-50.

[57] By analogy, the Attorney General argues that Mr. Hibbert could have had no reasonable expectation of privacy while his property was in the bedroom of SZ’s daughter during his temporary stay. Nor does just owning the property that was seized give rise to such an expectation (Edwards, paras. 52, 53 and 56).

[58] Mr. Hibbert points to the more recent authority of R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, which was decided after the seizure of his property and, indeed, after his guilty plea was entered in the Canadian case. In that case, an accused shared a home with his common-law spouse. When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer subsequently came to the home without a warrant. The accused’s spouse allowed the officer to enter and signed a consent form authorising him to take the computer, which was located in a shared space in the home. On the threshold issue of whether the accused had a reasonable expectation of privacy in the shared computer, the Supreme Court held that he did. The accused “had a direct interest and subjective expectation of privacy in the home computer and the data it contained” (Reeves, at para. 32).

[59] The Attorney General argues that Reeves is readily distinguishable from the present case because the computer was jointly owned and was seized in a shared home with the consent of one of the homeowners.

[60] Expectations of privacy are not, however, solely or, sometimes even principally, determined by ownership, occupancy or control over the place where property is seized: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 38. In Reeves, while the fact that the computer was jointly owned diminished the accused’s privacy interest, there were circumstances in which the Court contemplated that there would still be a reasonable expectation of privacy in places and things that are not exclusively under a claimant’s control. At para. 37 in Reeves, Karakatsanis J. noted that the Supreme Court has found that a person has a reasonable expectation of privacy in a bus depot locker even though a company owned the lockers and can access them at any time. Or an employee has a reasonable expectation of privacy in the data stored on a work computer, even though both policy and technological reality deprived him of exclusive control over and access to the personal information which he recorded on it.

[61] Furthermore, Karakatsanis J. held that there are “unique privacy concerns associated with computers”, noting that they often contain details of highly private information.

[62] In the present case, while I accept the arguments of the Attorney General that Mr. Hibbert had no general reasonable expectation of privacy in relation to his occupancy of the bedroom he was temporarily staying in, he did have a reasonable expectation of privacy in relation to his computer and other electronic devices. As Karakatsanis J. stated in Reeves, at para. 35:

The unique and heightened privacy interests in personal computer data clearly warrant strong protection, such that specific, prior judicial authorization is presumptively required to seize a personal computer from a home. This presumptive rule fosters respect for the underlying purpose of s. 8 of the Charter by encouraging the police to seek lawful authority, more accurately accords with the expectations of privacy Canadians attach to their use of personal home computers and encourages more predictable policing.

[63] I am not persuaded that this principle is diluted because the home that the electronic devices was seized from was not Mr. Hibbert’s home but, rather, a home that he was staying at, albeit as “a privileged guest”.

[64] Was the seizure of Mr. Hibbert’s devices reasonable?

[65] Again, Reeves is the leading case. The Supreme Court held (at para. 56) that the taking of the accused’s computer without his consent interfered with his reasonable expectation of privacy and thus constituted a seizure within the meaning of the Charter:

A warrantless seizure is presumptively unreasonable, and the burden falls to the Crown to rebut this presumption. Indeed, because someone is always likely to have a reasonable expectation of privacy in a personal computer, the taking of a personal computer without a warrant and without valid consent will constitute a presumptively unreasonable seizure. [citations omitted]

In the present case, as in Reeves, the prosecution has not endeavoured to rebut the presumption, relying on SZ’s consent (in Reeves it was the accused’s spouse) to show that no seizure occurred.

[66] I conclude that Mr. Hibbert had a reasonable expectation of privacy in the computer and other electronic devices that he left in the room he was staying in at SZ’s residence. Those rights were not waived. Accordingly, the taking of the computer and other devices by the police constituted a seizure within the meaning of section 8 of the Charter. This warrantless seizure was not reasonable because it was not authorised by any law. The seizure therefore violated Mr. Hibbert’s rights under section 8 of the Charter.

[67] The circumstances of the seizure of Mr. Hibbert’s computer and other devices were then further compounded by a failure to comply with section 489.1(1)(b) of the Criminal Code, which provides that where a warrantless seizure has occurred, a peace officer shall, if satisfied that the continued detention of the seized property is required for the purposes of any investigation, as soon as is practicable, bring the thing seized before a justice having jurisdiction in respect of the matter, or report to the justice that he or she has seized the thing and is detaining it or causing it to be detained, to thereafter be dealt with by the justice in accordance with subsection 490(1) of the Criminal Code.

[68] Aside and apart from whether the seizure of the computer and other devices was unreasonable because it breached Mr. Hibbert’s privacy rights, the failure to comply with section 489.1 of the Criminal Code represented a further breach of his Charter rights. In that regard I observe that, in Reeves, Côté J., who disagreed with the majority’s opinion on the accused’s reasonable expectation of privacy in relation to a jointly owned computer in a shared residence, found that failure of the police to report the seizure to a justice as soon as practicable was “a more compelling basis” for finding that the accused’s rights under section 8 of the Charter had been violated.

Search Warrant

[69] Kingston Police obtained a search warrant on 9 August 2016 to search Mr. Hibbert’s devices.

[70] Mr. Hibbert asserts that the ITO sworn by D.C. Wills was not full and frank, and omitted important aspects of the investigation. It is alleged to have failed to comply with the standard articulated by the Supreme Court in R. v Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 102:

Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

[71] Specifically, the ITO is said to be defective because it was goal-oriented and selectively represented the facts while failing to disclose that there had been a warrantless seizure (it is asserted that the impression given was that the seizure was incidental to arrest), or that the evidence obtained from the search would be shared with U.S. authorities.

[72] Furthermore, the warrant obtained merely authorised the police “to enter into the premises [the Kingston Police Property Room] and to search for the [described devices], and to bring them before [a justice of the peace] to be dealt with according to law”. The warrant did not, on its face, authorise a forensic examination and no application was made under section 487 (2.1) authorising such an examination.

[73] Mr. Hibbert points to other examples of sloppiness in the ITO, such as stating the wrong ages of SZ and KN and indicating that officers took possession of Mr. Hibbert’s devices at 21:00 on 7 July 2016, which was before the time that Mr. Hibbert had been arrested.

[74] The Attorney General, while acknowledging inconsequential inaccuracies, argues that the ITO is clear about the devices having been seized on 7 July, and anticipates evidence relating to an offence in Tennessee. Mr. Hibbert’s criminal defence lawyer at the time had consented to the forensic search of the seized items and, indeed, had complained when that search was delayed. Furthermore, the extent of the evidence that might be found on the devices was, at the time of the warrant, unknown.

[75] A review of the ITO discloses that two police officers had “taken possession of the recording and media storage devices” on 7 July and had itemised and catalogued each item seized and submitted them to the Kingston Police Property Room where, upon the granting of the search warrant, the items would “be located and seized”.

[76] The ITO outlines how the police entered SZ’s residence and the circumstances under which possession of the items was taken. The ITO also discloses that evidence found on the devices may prompt the officers to contact authorities in the United States.

[77] Furthermore, although the ITO and the resulting search warrant are technically deficient, in that they failed to specifically authorise a forensic examination of the devices, the ITO was very clear that the items would be forensically examined by P.C. Derek Frawley of the Kingston Police E-Crimes Unit.

[78] Accordingly, while, for the reasons already stated, I am of the view that a warrant should first have been obtained for the initial seizure of Mr. Hibbert’s devices, and that even if a warrantless search had been appropriate, a Report to the Justice should have been made as soon as practicable thereafter, the ITO itself, while not perfect, was adequate and not improper and the resulting warrant was valid.

[79] To be clear, though, what should have happened in this case is the procedure explained in R. v Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, where it was held that in the absence of a specific warrant authorising the search of computers, if police executing a search warrant lawfully seize a computer, they may then do what is necessary to ensure the integrity of the data, but if they wish to search the data, they must obtain a separate warrant. In the present case, that first step was omitted.

[80] The discussion concerning the search warrant does not, however, end there. It was not until 18 November 2016 that a Report to the Justice was filed. This was some three and a half months after the issuance of the search warrant and thus in excess of the three-month period stipulated in section 490(2) after which an order for further detention should have been obtained upon notice to Mr. Hibbert. Mr. Hibbert asserts that this amounted to an illegal over-holding and, thus, a further breach of his section 8 Charter rights.

[81] The Attorney General points out that there is no evidence before the court concerning the filing of the Report to the Justice and, furthermore, complains that this specific issue was only raised on the eve of the hearing of this application, despite the original notice of application having been filed in August 2018.

[82] In the absence of a more complete evidentiary record (or a history of further disclosure on the circumstances of the delay issue having been requested but denied), I am not prepared to make a finding that Mr. Hibbert’s Charter rights were further breached as a result of the delay in filing the Report to Justice.

Police Interview

[83] As previously indicated, Mr. Hibbert was interviewed by D.C. Wills from 22:50 to 23:30 on 7 July 2016, having been arrested and charged on one count of voyeurism. During the course of that interview, which commenced almost two hours after his arrest and after he had spoken to a lawyer, he was told, for the first time, by the officer that the investigation "might expand ... it's going to expand to Bowmanville ... [and] it could expand into Tennessee ... and it's going to go to Bowmanville, for sure".

[84] Mr. Hibbert argues that at this point he should have been cautioned again, and given a further right to consult with counsel, due to the changed circumstances and the increased jeopardy - being the Bowmanville and Tennessee matters. Instead, the officer simply continued with his questioning. Indeed, when Mr. Hibbert told the officer that he had been instructed by his lawyer not to answer any questions or make any statements, the officer, after acknowledging that it was Mr. Hibbert’s choice whether to speak or not, continued “… some guy in Toronto spoke to you on a 1-800 number, you’ll probably never meet him, and you’re the one sitting here in the chair right now”.

[85] At approximately 23:08, and again at 23:17 - in addition to asking questions about his activities in Bowmanville - the officer asked Mr. Hibbert about "victims in Tennessee" still without repeating to Hibbert his rights to counsel, despite the change in circumstances and the increased jeopardy.

[86] The Attorney General argues that no further cautions were required. Mr. Hibbert was the only person who knew about what had happened in Tennessee. The police knew only that he had been in Tennessee, so there was really nothing further they could have cautioned him on. Although on a couple of occasions the discussion diverted to Tennessee, D.C. Wills quickly brought the conversation back to Ontario. The circumstances were not such that there had been an objectively observable change in Mr. Hibbert’s jeopardy during the course of the interview required to trigger a further section 10(b) Charter right to consult with counsel: R. v. Sinclair, 2 S.C.R. 310.

[87] While I agree with counsel for the Attorney General that the circumstances of the interview and, in particular, the passing references to Tennessee, did not represent a change of jeopardy, or otherwise trigger a further right on the part of Mr. Hibbert to consult with counsel, the comments made by D.C. Wills came preciously close to offending the prohibition, articulated in R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, at para. 14, against police belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.

Sharing of Information

[88] The Attorney General acknowledges that information was shared by Canadian authorities with U.S. authorities on an informal basis. The overview statement in the ROC confirms this.

[89] Mr. Hibbert argues that such “informal” sharing of evidence of his conduct in Canada was illegal and improper and contrary to the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 and conflicts with both the Extradition Act, S.C. 1999, c. 18 and the Canada United States Extradition Treaties. Such “informal” sharing of evidence – with the intent of facilitating the use of Canadian-gathered evidence in the United States by American officials for the sole purpose of prosecuting Mr. Hibbert – breached his rights, contrary to sections 7, 8 and 11(d) of the Charter.

[90] In Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R 549, the Supreme Court was supportive of general practices of sharing information between jurisdictions, without the need for formal pre-authorisations or Mutual Legal Assistance proceedings. Moldaver J. stated, at paras. 57 and 78:

Multi-jurisdictional cooperation between law enforcement authorities furthers the administration of justice in all of the jurisdictions involved. It must not be forgotten that Canada is often on the receiving end of valuable information from foreign law enforcement authorities.

Common sense would suggest that similarly unremarkable and entirely reasonable instances of law enforcement cooperation to combat cross-border criminal activity occur on a daily basis between Canadian and U.S. authorities. Saddling police with the obligation of imposing boilerplate caveats on even the most routine disclosures poses an unnecessary burden. It would do little to safeguard the interests protected by s. 8 while impeding legitimate law enforcement operations.

[91] I do not accept the arguments made by Mr. Hibbert on this issue. There would have to have been some communication by Canadian authorities to U.S. authorities to even alert them of the possibility that a crime had been committed by Mr. Hibbert in Tennessee. There might, perhaps, be arguments to advance about the extent to which evidence should be shared, or the timing of the sharing of information. But such concerns were not developed in argument in this case. Rather the issue raised is one of principle, and so far as principle is concerned, the answer is as provided by Moldaver J. in Wakeling.

Remedies

[92] I have found that the warrantless seizure of Mr. Hibbert’s computer and other electronic devices and the subsequent failure of police officers to make a Report to the Justice concerning that warrantless seizure were breaches of the Criminal Code, and, hence, Mr. Hibbert’s right to be secure against unreasonable search or seizure, pursuant to section 8 of the Charter.

[93] Where evidence has been obtained in a manner that infringes Charter rights, section 24(2) of the Charter provides that such evidence “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. This is done by considering (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[94] In Reeves, the Supreme Court concluded that evidence obtained as a result of the unlawful seizure of the accused’s home computer should be excluded. While the application judge, with whom the Supreme Court agreed, had accepted that the officer seizing the home computer believed that the spouse’s consent allowed him to take it, the police service concerned had a specialised cybercrime unit that “should have been aware of the unique and heightened privacy interest in computers”, even though the law in this regard was still evolving. Furthermore, the failure to report the warrantless seizure of the computer was a compounding factor. And an additional factor, not present in this case, was an ITO that the application judge described as reflecting “‘a goal-oriented, selective presentation of the facts’ that resulted in an ‘unfair, unbalanced and misleading’ portrayal of the applicant” and was insufficient to have justified granting the warrant”.

[95] The Supreme Court in Reeves agreed with the application judge’s conclusion that the Charter-infringing state conduct had been serious. Furthermore, the impact on the accused’s Charter-protected interest had also been serious. The Supreme Court recognised that because the computer was a shared one, located in a shared home, the accused had a reduced reasonable expectation of privacy. Nevertheless, citing Morelli, the Supreme Court concluded that:

“[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”, given the extremely private nature of the data that a personal computer may contain.

[96] In my view, similar concerns to those expressed in the previous paragraph pertain in the present case.

[97] As in Reeves, a feature of the present case is the significant delay that occurred before a Report to a Justice was made following the warrantless seizure. In the ITO in the present case, D.C. Wills explained that he had started to draft the ITO on 14 July 2016. A subsequent exchange of emails between Mr. Hibbert’s lawyer and the Crown Attorney disclosed that because of resource availability and vacations, the computer analysis would not be conducted before mid-August.

[98] Even accepting that, in July 2016, more than two years before the Supreme Court handed down its decision in Reeves, the failure to obtain a warrant for the seizure of Mr. Hibbert’s computer was excusable, the failure as soon as practicable thereafter to make a Report to the Justice was not. Email correspondence between Mr. Hibbert’s then defence counsel and the Crown Attorney makes it abundantly clear that defence counsel wanted to know, sooner rather than later, the possible extent of Mr. Hibbert’s jeopardy and, in particular, whether further charges might be laid. A properly filed Report to the Justice, on notice to Mr. Hibbert, was thus more than just a procedural formality.

[99] In Reeves, the police took four months before making a Report to a Justice. In the absence of any explanation, Côté J. said she would hesitate to describe such a violation as “merely technical in nature” (at para. 138).

[100] In Mr. Hibbert’s case, no formal report was made at all pursuant to section 489.1. Rather, an application was made on 9 August 2016 (30 days after the seizure of the devices) for a search warrant to examine the devices. The first formal Report to the Justice was not made until three and a half months after that.

[101] In my view, the failure of the state authorities to comply with their obligations under section 489.1(1)(b) and section 490(2) significantly compound the initial effect of the unlawful warrantless seizure.

[102] Turning to the third Grant factor, there can be no doubt that society has a strong interest in the adjudication of a case like this on its merits. I can express this no better than to quote the Supreme Court in Reeves, at para. 67:

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).

[103] In R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56, the Supreme Court cautioned courts not to allow the third Grant factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where the impugned conduct was serious and worked a substantial impact on a claimant’s Charter rights.

[104] I have concluded that although the third Grant factor favours the admission of the impugned evidence - namely the seven images that were shared with the United States authorities and identified by the parents of the child in Tennessee as being photographs of their daughter – that, on balance, the significance of the Charter breaches, along with their impact on Mr. Hibbert, leads me to the conclusion that this evidence should be excluded.

[105] In my previous ruling on the Attorney General’s application for summary dismissal of Mr. Hibbert’s application, reported at 2018 ONSC 7400, I wrote, at para. 31:

The evidence of the victim’s mother is that the photographs shown to her depicted her daughter. Those photographs were obtained in the course of the Canadian investigation and shared by the Kingston Police Force with U.S. authorities. If, as Mr. Hibbert asserts, the photographs were obtained and thereafter shared in violation of his Charter rights, the evidence of the victim’s mother relying solely on what is depicted by the photographs would be fruit of a poisoned tree. If the photographs and the testimony based on them are not available, there may not be evidence upon which a properly instructed jury could convict Mr. Hibbert, in which case, an order for his extradition to the United States might not be granted.

[106] My view on the critical importance of the photographs to a viable prosecution of Mr. Hibbert has not changed. Section 32 of the Extradition Act requires that evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted. So far as the photographs are concerned, it does not.

[107] Without the photographs, the committal order sought by the Attorney General cannot be justified.

Decision

[108] The application by the Attorney General for an order of committal is dismissed.

[109] Pursuant to section 29(3) of the Extradition Act, I order that Mr. Hibbert is discharged.

Graeme Mew J.

Handed down: 5 January 2021 (orally)

COURT FILE NO.: CR-18-00000016-00MO

DATE: 20210105

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA Applicant

– and –

GREGORY HIBBERT Respondent/Person Sought for Extradition

REASONS FOR DECISION

(Application pursuant to section 29 of the Extradition Act)

Mew J.

Handed down: 5 January 2021 (orally)

[^1]: R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13: police are not generally permitted to enter into someone's house without a search warrant.