Court File and Parties

COURT FILE NO.: CR-0365-18 DATE: 20220502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SHAHIM SHOKOUH

Counsel: Matthew Bloch, for the Crown Edmund Chan, for Shahim Shokouh

HEARD: February 22-25 & 28, 2022

RULING ON PRE-TRIAL CHARTER APPLICATIONS

P.J. Monahan J.

[1] Shahin Shokouh is charged with one count each of accessing, possessing and making available child pornography between January 1 and July 4, 2017, contrary to s. 163.1 of the Criminal Code. He brings two Charter applications, the first alleging a violation of his right to counsel (the “RTC Application”) and the second alleging a violation of his right to be secure from unreasonable search or seizure (the “Search Application”).

[2] At the conclusion of the voir dire, I dismissed both applications and indicated that reasons would be provided in writing. These are my reasons.

Background

[3] On April 23, 2017, Facebook became aware of a user, Shawnshokouh1, who had recently uploaded files that appeared to contain child pornography. Facebook reported the user, the associated IP address, and a verified email of shahinshoukouh@gmail.com, to the National Centre for Missing and Exploited Children (NCMEC), who remitted the file to the National Child Exploitation Coordination Centre (NCECC). The NCECC determined that the IP address used by the Facebook user in question belonged to Rogers Communication Canada Inc. (“Rogers”). On May 30, 2017, Detective Constable Matthew McLeod of the Toronto Police (“McLeod”) obtained a production order requiring Rogers to provide records to assist in identifying Facebook user Shawnshokouh1 (the “Production Order”).

[4] The Production Order results disclosed that the IP address in question was assigned to the Rogers account of Nazanin Shahdri, who resided at 331 Connaught Avenue in Toronto. Through subsequent investigation of MTO records, the TPS learned that one Shahin Shokouh also resided at 331 Connaught Avenue. The investigating officer compared the photo of the Facebook account for Shawnshokouh1 to the MTO photo for Shahin Shokouh and noted that they appeared to be the same person.

[5] On June 30, 2017, McLeod obtained a warrant to search 331 Connaught Avenue for electronic devices and data in digital devices in order to obtain information relevant to the offences of accessing, possessing, or making available child pornography (the “Search Warrant”). The Search Warrant was executed on July 4, 2017 and resulted in the detention and arrest of Mr. Shokouh and the seizure of various electronic devices.

[6] On the morning of July 4, 2017, Mr. Shokouh made a total of three statements to two police officers, McLeod and Detective Constable Scott McQuoid (“McQuoid”). The first two statements, both of which were audio recorded, were made in the living room at 331 Connaught Avenue, commencing at 6:18 AM and 6:34 AM, respectively. The third statement, which was videotaped, was made at the police station commencing at 8:52 AM.

RTC Application

a. Overview

[7] The RTC Application seeks to exclude from evidence the second and third statements made by Mr. Shokouh, namely, the statements commencing at 6:34 AM and 8:52 AM on July 4, 2017. No objection is taken to the admissibility of a statement that was taken between 6:18 AM and 6:24 AM, as Mr. Shokouh he had been advised of his right to retain or consult counsel and had waived the right to do so prior to the taking of this statement. Mr. Shokouh also concedes that all three statements were made voluntarily.

[8] Mr. Shokouh argues that McLeod and McQuoid violated his right to counsel at 6:24 AM when they arrested him without repeating his right to counsel, and then failed to hold off on questioning him until he had consulted with a lawyer. On this basis, the second statement at 6:34 AM was obtained in violation of Mr. Shokouh’s right to counsel and should be excluded. Moreover, the third statement that commenced at 8:52 AM was tainted by the second statement, since it was in practical terms a continuation of the interview conducted by the same two officers. Therefore, the third statement should also be excluded.

[9] The Crown’s position is that there was no violation of Mr. Shokouh’s right to counsel and that, even if there had been such a violation, it should not result in the exclusion of any of the statements made to the police on the basis of s. 24 (2) of the Charter.

b. The Voir Dire

[10] On consent, the proceeding was heard as a blended voir dire/trial. The following eight police officers testified on behalf of the Crown:

i. McLeod and McQuoid; ii. Christopher Jodoin and Steven Mailer, members of the police team executing the Search Warrant; iii. Felix Konadu (“Konadu”) and Derek Ma (“Ma”), who transported Mr. Shokouh to the police station and were present during the booking process; iv. Jeff Kidd (“Kidd”), who was accepted as an expert in the forensic analysis of computers, computer devices and computer applications. Kidd participated in the search and conducted a forensic analysis of electronic devices that were seized, in order to identify data containing child pornography; v. Michael Sabadin (“Sabadin”), who reviewed a Kik chat that was found on a laptop that was seized from Mr. Shokouh’s bedroom.

[11] The Crown also tendered the audio and video tapes of the three police interviews with Mr. Shokouh; the in-car camera video from the scout car which transported Mr. Shokouh to the station; and the video of the booking process.

[12] Mr. Shokouh testified on the voir dire in relation to the RTC Application. His evidence was that between the first and second interviews, while he sitting in the living room at 331 Connaught Avenue, he said that he wanted to “speak to someone”. He believes that he mentioned duty counsel. Mr. Shokouh said that McLeod was present when he made this statement but did not respond to him, either because he did not hear it, or because he ignored it.

c. Timeline of Events

[13] The police team executing the Search Warrant arrived at 331 Connaught Avenue shortly after 6 AM on July 4, 2017. Mr. Shokouh was awakened in his bedroom on the second floor and brought downstairs to the living room, where he was met by McLeod and McQuoid. McLeod advised Mr. Shokouh that that he was being detained in connection with an investigation into distributing, possessing and making available child pornography. He told Mr. Shokouh that on April 22, 2017, an individual using a Facebook account had uploaded child pornography and shared it with another individual. He further advised Mr. Shokouh that the police had obtained a search warrant authorizing them to enter and search the residence at 331 Connaught Avenue for child pornography stored on any kind of digital device. He also told Mr. Shokouh that his picture appeared to be the person associated with the Facebook account.

[14] McLeod advised Mr. Shokouh that he had the right to retain and instruct counsel without delay and read out a telephone number which Mr. Shokouh could call “right now” in order to obtain free legal advice from a duty counsel lawyer. The following exchange then occurred:

McLeod: Do you understand? Shahin Shokouh: Yeah. McLeod: And, um, do you wish to call a lawyer? Shahin Shokouh: Right now? McLeod: Right now or you know, in the near future. Shahin Shokouh: I just, uh, like, can I just, like, get a concept of the entire thing?

[15] McLeod also cautioned Mr. Shokouh that he was not obliged to say anything unless he wished to do so, but that whatever he said may be given in evidence. He asked Mr. Shokouh if he understood, and Mr. Shokouh replied that he did.

[16] McQuoid then sought to further clarify whether Mr. Shokouh wished to consult a lawyer. The following exchange occurred:

McQuoid: before you say anything… Shahin Shokouh: Um.. McQuoid: you understand you have the right to a lawyer. Shahin Shokouh: Yes, I [crosstalk] McQuoid: Do you want to speak to a lawyer before you talk to us? Shahin Shokouh: Uh… McQuoid: Yes or no. Shahin Shokouh No. I just want to be, be upfront with you guys. McQuoid: Okay so no, you do not want to speak to a lawyer. Shahin Shokouh: No.

[17] The officers proceeded to question Mr. Shokouh. In the course of that interview, Mr. Shokouh acknowledged having had child pornography on his cell-phone at one point in time but denied having made it available to anyone else. (Mr. Shokouh said that in April 2017 a friend of his had sent child pornography to a girl using his phone without his consent.)

[18] At 6:24 AM the officers stopped their questioning and advised Mr. Shokouh that they were placing him under arrest. They handcuffed him and explained to him what would happen next, including that he would be transported to the police station, where he would be given the opportunity to speak to duty counsel. The first interview concluded at 6:27 AM.

[19] Between 6:27 AM and 6:34 AM the officers were coordinating the search of the home for digital devices and making arrangements to transport Mr. Shokouh to the police station. Mr. Shokouh’s evidence was that during this seven-minute interval, he said he wanted to speak to someone, and he believes he mentioned duty counsel. He acknowledged that he made this statement in a low voice and that McLeod (who was present in the living room at the time), might not have heard him. Mr. Shokouh said that McLeod did not respond to his request. (In his evidence, McLeod did not recall Mr. Shokouh having said anything about speaking to counsel.)

[20] At 6:34 AM, McLeod and McQuoid interviewed Mr. Shokouh a second time. The officers’ evidence was that the reason for speaking to Mr. Shokouh again prior to transporting him to the police station was in order to narrow the range of electronic devices to be removed from the home. In particular, the officers had learned that there were three other persons living in the residence (i.e. Mr. Shokouh’s parents and his 12-year-old brother) and they did not wish to seize devices that were being exclusively by these other residents. They therefore wanted to clarify with Mr. Shokouh which cellphone he had been referring to in his initial statement.

[21] The following exchange occurred at the commencement of the second interview:

McQuoid: Okay, so, we have already given you your rights to counsel, explained that you are under arrest. We have cautioned you, right, told you that anything you can say from this point on could be used against you in court. Shahin Shokouh: M’hmmm McQuoid: And you also had a secondary caution which explained that if anybody has spoken to you who is a police officer, besides myself or Detective Constable McLeod, and they influenced you in any way in making any sort of statement or telling us any information, that you’re to disregard those acts. Do you understand all that? Shahin Shokouh: Yes, sir.

[22] The officers then referred back to Mr. Shokouh’s initial statement in which he had said that a friend of his had used his phone to send child pornography; the officers asked what phone had been used. Mr. Shokouh replied that it was a white iPhone 6S that he had used previously, but was currently being used by his brother. The second interview then concluded at 6:36 AM.

[23] Shortly after 7 AM, Mr. Shokouh was transported to the police station in a police scout car driven by Konadu. When they arrived at the station, Konadu advised Mr. Shokouh that he would be given an opportunity to speak to duty counsel and it would then be up to him to decide whether to speak further with the police detectives.

[24] During the booking process, Ma told the Staff Sergeant that Mr. Shokouh had advised that he did not have his own lawyer. Ma said that Mr. Shokouh had been told that the police would arrange for him to speak to duty counsel. The Staff Sergeant confirmed that Mr.ouh would have the opportunity to speak to duty counsel before being questioned any further.

[25] Mr. Shokouh spoke with duty counsel at about 8:15 AM that morning in a private location at the station. He also spoke with his father by telephone. He was then interviewed a third time by McLeod and McQuoid, commencing at 8:52 am, with this interview being videotaped.

[26] In their evidence on the voir dire, neither McLeod nor McQuoid recalled Mr. Shokouh asking to speak to counsel prior to leaving 331 Connaught Avenue in the scout car. On cross-examination, McLeod was asked why, if that were the case, the police had nevertheless arranged for Mr. Shokouh to speak to duty counsel when he arrived at the police station. McLeod replied that in his view it was best practice to do so. He also said that if Mr. Shokouh had asked at any point to speak to counsel while at 331 Connaught Avenue, he would have held off on any further questioning until such time as Mr. Shokouh could obtain legal advice.

d. Applicable Legal Principles

[27] Section 10 (b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of s. 10 (b) is to support detainees’ right to choose whether to cooperate with the police investigation or not, by giving them access to legal advice on the situation they are facing. This is achieved by requiring that they be informed of the right to consult counsel and, if they so request, be given an opportunity to do so. [1]

[28] There are three components to the right to counsel. The first, the informational component, requires that anyone being detained or arrested be advised of their right to counsel. The second, the implementational component, requires that the police provide a reasonable opportunity to exercise the right to counsel, should the person being detained or arrested wish to do so. The third component is a duty on the part of the police to hold off questioning a person who has indicated that they wish to retain or consult counsel, until such time as they have a reasonable opportunity to do so. [2]

[29] As Watt JA noted in Manchulenko, the duties of the police under the implementational component of s. 10 (b) are not absolute. Unless the detainee/accused invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended. [3]

[30] Absent proof of circumstances indicating that the detainee/accused did not understand their right to retain counsel, they have the onus of proving that they asked for the right but it was denied, or that they were denied the opportunity to even ask for it. [4] Further, a detainee/accused may validly waive the right to counsel provided that they generally understood the sort of jeopardy they were facing when they made the decision to dispense with counsel. [5]

[31] Finally, the right to counsel may be re-triggered by a change in circumstances that suggests that the choice faced by the detainee/accused has been significantly altered, requiring further advice on the new situation. For example, where the offences under investigation change and the accused is now suspected of a more serious crime, or where there is a fundamental and discrete change in the purpose of the investigation, this may require the police to advise the detainee/accused a second time of the right to counsel. [6]

[32] If there is a breach of the right to counsel, the court must then determine whether the evidence obtained should be excluded in accordance with section 24(2) of the Charter. Section 24 (2) provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.

[33] As the Supreme Court of Canada determined in R. v. Grant (2009), s. 24 (2) requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

i. The seriousness of the Charter-infringing state conduct; ii. the impact of the breach on the Charter-protected interests of the accused; and iii. Society’s interest in the adjudication of the case on its merits. [7]

[34] In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes. [8]

[35] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. As with the first prong of Grant (2009), this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.

[36] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. Although this third line of inquiry typically pulls toward inclusion of the evidence, in order to further the societal interest in an adjudication on the merits, this will not always be so. As the Supreme Court of Canada observed in R. v. Le [9], an adjudication on the merits, in a rule of law state, presupposes an adjudication grounded in legality and respect for long-standing constitutional norms.

[37] These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances. [10]

e. Mr. Shoukouh’s arrest at 6:24 AM did not re-trigger the right to counsel, and there was no breach of the right to counsel in the taking of the second statement

[38] Defence counsel acknowledges that at the commencement of the first interview at 6:18 AM, the police fulfilled the informational component of the right to counsel and that Mr. Shokouh validly waived the right at that time. However, counsel maintains that once the police officers decided to arrest Mr. Shokouh at 6:24 AM, this was a change in circumstance sufficient to re-trigger his right to counsel. At this point the officers should have once again advised Mr. Shokouh of the right to counsel and provided him with a fresh opportunity to seek legal advice. Their failure to do so resulted in a breach of his s. 10 (b) rights. Accordingly, both the second and third statements should be excluded.

[39] I would not give effect to this submission for a variety of reasons.

[40] First, at the outset of the first interview, Mr. Shokouh was told that the police were investigating an upload of child pornography from a Facebook account and that, based on the picture of the Facebook user, it appeared that he was the account holder. He understood he had the right to speak to a lawyer. He understood that he did not have to make a statement to the officers. He chose to make a statement nonetheless.

[41] Six minutes after being advised of his right to counsel and of the fact that he was not required to make a statement to the police, he was informed that he was under arrest. But there had been no shift in the purpose or focus of the investigation, and no change in the charges that Mr. Shokouh was facing. In short, although Mr. Shokouh had now been arrested, there was no significant change in his legal jeopardy sufficient to require the police to repeat the right to counsel.

[42] The circumstances here are analogous to those in R. v. Hodgson [11], in which the Alberta Court of Appeal held that a section 10 (b) caution read to an accused on detention was sufficient for the purposes of his arrest several minutes thereafter. In that case, the police executed a search warrant at the accused’s automotive business. At the outset of the search, they advised the accused that he was being placed under investigative detention, read him rights to counsel and asked him if he wished to speak to a lawyer. The accused indicated that he would contact a lawyer at a later time. During the search, police located a quantity of drugs and the accused was arrested for possession for the purpose of trafficking. The arrest occurred within 5 to 8 minutes of the accused being advised of his rights to counsel. The accused was not given further advice regarding his rights to counsel on arrest. The Court of Appeal declined to find a Charter breach, since the accused’s legal jeopardy did not change significantly from the commencement of the search to the announcement that charges would be forthcoming.

[43] In contrast, in R. v. McIntosh [12], the accused had been asked to take a polygraph test in order to convince the parents of the victim that he was not involved in the victim’s death. The accused was not a suspect at the time of the polygraph. However, based on the polygraph test results, the accused became a suspect. He was then questioned with a view to obtaining admissions incriminating him in the victim’s death. The Court of Appeal held that the change in the accused’s status to that of a suspect was a fundamental and discrete change in the purpose of the investigation, necessitating a repetition of the right to counsel.

[44] I find that the facts here are analogous to those in Hodgson and distinguishable from those in McIntosh. Mr. Shokouh knew from the outset that he was a person of interest in the investigation, as he appeared to be the user of the Facebook account that had been used to upload child pornography. He also knew the offences that were under investigation. I find that there was no fundamental change in his legal jeopardy at the time of his arrest necessitating a repetition of the right to counsel.

[45] Nor was Mr. Shokouh’s legal jeopardy altered by the taking of the second statement at 6:34 AM. The police had the authority to remove all of the electronic devices found in the home for investigation. However, having arrested Mr. Shokouh, the police only wished to seize electronic devices that he may have used, and leave devices that had been used exclusively by other family members. They therefore asked Mr. Shokouh to identify the cell phone that had been used to transmit child pornography in April 2017, as described in his initial statement. Mr. Shokouh indicated that it was a white iPhone 6S, but that this phone was currently being used by his younger brother.

[46] In any event, at the commencement of the second interview, the police reminded Mr. Shokouh of his right to counsel and of the fact that anything he might say from that point onward could be used against him in court. While this did not constitute a formal and complete repetition of the right to counsel, it did provide Mr. Shokouh with a fresh opportunity to ask to speak to counsel. He did not express any such desire. I therefore find that any obligation the police might have had to advise Mr. Shokouh of his right to counsel prior to the second interview was satisfied by their reminding him of the fact that he had a right to consult counsel, and that anything he might say could be used against him in court.

[47] This conclusion is not affected by the fact that Mr. Shokouh may have indicated a desire to “speak to someone”, perhaps mentioning duty counsel, while he was sitting in the living room at 331 Connaught Avenue from 6:27 AM to 6:34 AM. Mr. Shokouh acknowledged that he had spoken softly and that the officers may not have heard him. In his evidence in chief on the voir dire, McLeod indicated that he did not recall Mr. Shokouh having expressed a desire to speak to counsel between the first and second interviews. Defence counsel did not cross-examine McLeod on this issue; rather, defence counsel focused his cross-examination on whether Mr. Shokouh had asked to speak to counsel after the second interview and prior to being transported to the police station. (McLeod said that he did not recall any such request after the second interview. In any event, in his evidence Mr. Shokouh did not claim that he had asked to speak to counsel after the second interview and prior to being transported to the police station.) It is also apparent from the comments made by the police officers in the third interview, in which they summarized the events that had taken place during the search at 331 Connaught Avenue, that neither McLeod nor McQuoid was aware of any statement made by Mr. Shokouh between the first and second interviews expressing a desire to speak to a lawyer.

[48] I find, therefore, that neither McLeod nor McQuoid heard any statement that Mr. Shokouh may have made between the first and second interviews at 331 Connaught Avenue indicating he wished to speak to a lawyer. I further accept their evidence that had they been made aware of any such desire on his part, they would have ceased any further questioning.

[49] As discussed above, the onus is on detainees/accused to show that they asked for the right to counsel but it was denied. In this case, Mr. Shokouh had expressly waived the right to counsel and, had he changed his mind prior to the second interview, could have so advised the officers at that time. He failed to do so, despite being reminded of the fact that he had a right to counsel. The officers were not aware of any request by Mr. Shokouh to speak to counsel, and thus did not deny him that right.

[50] I therefore find that there was no breach of the right to counsel at the time of Mr. Shokouh’s arrest, or at any other time prior to the taking of the second statement at 6:34 AM. The second statement is therefore admissible.

f. Even if the officers breached the right to counsel in obtaining the second statement, it should not be excluded under s. 24 (2)

[51] In the event that I had found a breach of s. 10 (b) in obtaining the second statement, it would have been necessary to consider whether that statement should be excluded on the basis of s. 24 (2) of the Charter. As noted above, the s. 24 (2) analysis proceeds in accordance with the three-part test set out in Grant (2009).

[52] The first prong of the test requires an assessment of the seriousness of the Charter-infringing state conduct. In my view, any breach that might have occurred in relation to Mr. Shokouh’s right to counsel would fall on the less serious end of the spectrum. McLeod and McQuoid advised or reminded Mr. Shokouh of his right to counsel four times between 6:18 AM and 6:34 AM. They also cautioned him that anything he might say could be used against him. Mr. Shokouh had expressly waived the right to counsel at 6:18 AM and the officers were unaware of any desire on his part to seek legal advice prior to being transported to the police station. I have already found that the officers were proceeding in good faith throughout and, had they been made aware of a desire on the part of Mr. Shokouh to consult counsel, they would have held off on any further questioning. In these circumstances, the failure to reiterate Mr. Shokouh’s right to counsel when he was arrested at 6:24 AM constitutes at its highest a de minimis violation of the right to counsel. This factor tends to favour the admission of the second statement.

[53] The second prong of the test requires a consideration of the impact of the breach on the Charter-protected interests of the accused. In this case, the second statement at 6:34 AM lasted for just two minutes and was intended to narrow or limit the number of devices to be seized by the police. The entire statement consisted of a short exchange in which Mr. Shokouh advised the officers that he had previously been using a white iPhone 6S but that this phone was currently being used by his younger brother Arian. Officer Kidd, who undertook a forensic analysis of the devices that were seized as a result of the search, did not examine the iPhone 6S that was being used by Arian Shokouh. This suggests that the impact on Mr. Shokouh’s rights from the taking of the second statement was on the less serious end of the spectrum, and also tends to favour the admission of the statement.

[54] The third prong of the Grant (2009) test involves a consideration of society’s interests in the adjudication of the case on its merits. Accessing, possessing and distributing child pornography are serious offenses which cause significant harm to children including, in particular, the children who are abused in the production of such material. [13] Society thus has a strong interest in the adjudication of this proceeding on the merits. This factor also favours admission of the statement.

[55] Considering these factors as a whole, even if I had found that there had been a breach of Mr. Shokouh’s right to counsel at the time of his arrest at 6:24 AM, I would not have excluded the statement that was obtained at 6:34 AM.

g. Even if I had excluded the statement obtained at 6:34 AM, I would nevertheless have admitted the third statement that was obtained at 8:52 AM.

[56] The derived confessions rule applies in cases involving multiple statements where the admissibility of a latter statement is impugned based on circumstances surrounding a preceding statement. The rule excludes an otherwise voluntary and constitutionally compliant statement if it is sufficiently connected to an earlier statement that, for whatever reason, taints the subsequent statement. [14]

[57] Where the earlier contaminant is a Charter breach, admission or exclusion of the statement is determined pursuant to a s. 24 (2) analysis. As noted above, s. 24 (2) only excludes evidence where an accused has demonstrated, on a balance of probabilities, that the evidence proposed for admission was “obtained in a manner” that infringed or denied the accused’s Charter rights. In order to satisfy this requirement, there be a nexus between the infringement and the impugned evidence. The determination of whether a sufficient nexus exists is case-specific and may be temporal, contextual, causal, or the three in combination. The subsequent evidence will be tainted if the breach and the evidence obtained can be said to be part of the same transaction or course of conduct. [15]

[58] In some circumstances, conduct by investigators prior to a subsequent statement may sever the link between the original taint and the subsequent statement. Such a “fresh start” could include providing an opportunity to consult with legal counsel prior to the taking of the subsequent statement, thereby insulating the subsequent statement from an earlier breach of the right to counsel.

[59] In this case, Mr. Shokouh argues that the third statement, obtained by the same police officers who conducted the second interview, was effectively a continuation of the second interview. He therefore claims that the breach of his s. 10 (b) rights prior to the making of the second statement tainted his third videotaped statement at the police station and should lead to the exclusion of the third statement as well.

[60] In assessing whether there is a sufficient nexus between any breach of the right to counsel and the taking of the third statement, the following factors are particularly relevant:

a. The second statement was two minutes long, and consisted of Mr. Shokouh advising the officers that he had previously used an iPhone 6S but that this phone was currently being used by his brother; b. upon his arrival at the police station shortly after 7 AM, Mr. Shokouh was advised of his right to counsel by three different police officers (i.e. by Konadu upon arrival at the station; by Ma during the booking; and by the booking Staff Sergeant); c. Konadu also told Mr. Shokouh that, after he spoke to counsel, it would be up to him to decide whether he wished to speak any further with the investigating police officers; d. at 8:15 AM, Mr. Shokouh was provided with the opportunity to speak to duty counsel by telephone in a private location at the police station; e. Mr. Shokouh asked to speak to his father and was permitted to do so by telephone; f. at the commencement of the third interview at 8:52 AM, McLeod and McQuoid once again reminded Mr. Shokouh of his rights to counsel; g. the focus of the questioning during the third interview was on the initial statement that Mr. Shokouh had made at 6:18 AM, in which he had described a friend of his having uploaded child pornography using his Facebook account. During the third interview, McLeod and McQuoid did not reference or rely upon the second statement that was made at 6:34 AM. Thus, there was little to no causal connection between the second and third statements.

[61] Mr. Shokouh objects to the fact that the same officers who conducted the first two interviews at 331 Connaught Avenue also conducted the third interview at the police station. But these officers were in charge of the investigation and were familiar with the investigative steps that had been taken to that point. They were also in the best position to follow up on the first statement that had been made by Mr. Shokouh. In my view it was neither practical nor necessary to require that the third interview be conducted by different police officers who would have had much less familiarity with the relevant circumstances.

[62] I therefore conclude that Mr. Shokouh’s second statement had no real bearing on the third statement. Given the lack of nexus between the second and third statements, I find that the third statement was not “obtained in a manner” that infringed Mr. Shokouh’s right to counsel. Therefore, even if I had found that there had been a Charter breach in relation to the taking of the second statement, that infringement did not taint the third statement. Thus the third statement is admissible in any event.

The Unreasonable Search Application

[63] Mr. Shokouh challenges the facial validity of the two judicial authorizations in this case, namely, the Production Order and the Search Warrant. The question this raises is whether these two judicial authorizations could have been issued based on the informations to obtain (the “ITOs”) that were provided to the issuing justice in each instance.

a. The Production Order

[64] The Production Order was a “General Production Order” issued pursuant to s. 487.014 of the Criminal Code, which provides that a person may be ordered to produce a document or data that is within their possession or control where the issuing justice is satisfied that there are reasonable grounds to believe that: (i) an offence has been committed under any Act of Parliament; and (ii) the document or data requested will afford evidence respecting the commission of the offence.

[65] I note that the “reasonable grounds to believe” standard does not require proof beyond a reasonable doubt nor even proof on a balance of probabilities. Rather, what is required is a credibly-based probability. [16] I further observe that in assessing the validity of the two judicial authorizations, I am neither required or permitted to substitute my own views for those of the issuing justice. Rather, my mandate is limited to assessing whether, on the basis of the ITO provided, the authorizing justice could have issued the authorization in question.

[66] The ITO for the Production Order described the investigation that had given rise to the request. In particular, it set out the fact that on April 22, 2017, a Facebook user Shawnshokouh1 had uploaded files that appeared to contain child pornography, contrary to s. 163.1 of the Criminal Code. The ITO also advised that the Facebook user had a verified email address of ShahinShokouh@gmail.com, and had utilized a Rogers IP address for the upload. The ITO requested various records from Rogers relating to this IP address, including subscriber information such as the name and all email addresses associated to the account, IP logs for the last 180 days the account was active, all phone numbers associated with the account, etc.

[67] The ITO identified the grounds to believe that the information sought would afford evidence respecting the commission of the offence, as follows:

The collection of the records requested in this application will be used to determine who possessed, and then made the files online. Once that information is obtained it will be used to further investigate the offenses listed in this application.

[68] It seems obvious that the ITO provided sufficient grounds to support the issuance of the Production Order. There were reasonable grounds to believe that criminal offences had been committed, given the uploads of child pornography by the Facebook user. Similarly, it is reasonable to believe that the subscriber information relating to the IP address utilized for the upload of child pornography will provide evidence respecting the commission of the offences in question.

[69] Defence counsel argues that s. 487.014 does not provide authority to obtain records where the purpose of the request is to assist in identifying who committed an offense. Rather, counsel claims, where the purpose of the request is to identify who committed an offence, that request must be made under s. 487.015. Section 487.015 provides that a person may be ordered to prepare a document containing transmission data relating to an electronic communication in order to identify the device or person involved in the communication. According to defence counsel, because s. 487.014 is subject to s. 487.015, where the purpose is to identify a person involved in an electronic communication, that request can only be made pursuant to s. 487.015.

[70] I see no merit to this objection to the validity of the Production Order. In my view, section 487.014 is clearly available in cases where the purpose of the Production Order is to identify who has committed an offence, since identifying the offender is obviously “evidence respecting the commission of the offence.” Indeed, obtaining information that will assist in identifying who committed the offenses in this particular case was critically important to the investigation.

[71] The scope and purpose of s. 487.015, under the heading “Production Order to Trace Specified Communication”, is quite different. While this provision makes reference to requests intended to identify a “person involved in the transmission of the communication”, it involves a request to produce “transmission data” as defined in s. 487.011. Moreover, a production order under s. 487.015 may be served on a person involved in the transmission of the communication and whose identify is unknown at the time of the application. In this case, the police were requesting subscriber information rather than “transmission data”; the request was directed at Rogers, who was not a person involved in a specified communication; nor, obviously, was Rogers a person whose identity was unknown at the time of the application. Thus s. 487.015 simply has no application or relevance to the request for subscriber information made in this case.

[72] I conclude that the Production Order could have validly issued based on the ITO provided, and the Order was in fact validly issued pursuant to s. 487.014.

b. The Search Warrant

[73] The Search Warrant was issued pursuant to s. 487 (1) (b) of the Criminal Code, which provides that a peace officer may be authorized to search a particular location where there are reasonable grounds to believe that there is at that location anything that will “afford evidence with respect to the commission of an offence”.

[74] The ITO provided in support of the issuance of the Search Warrant described the investigations that had been undertaken to that point, including the results of the Production Order. The affiant explained that the IP address that had been utilized in the upload of child pornography was associated with the Rogers account of Nazanin Shahdi of 331 Connaught Avenue, Toronto. A search of MTO records disclosed that Shahin Shokouh also resided at 331 Connaught Avenue and that, based on his driver’s license photo, he appeared to be the same person depicted in the photo on the Facebook account for Shawn Shokouh. The ITO requested authorization to search 331 Connaught Avenue for electronic devices capable of sending, receiving and storing information, for the purpose of locating child pornography, and in order to identify the persons in control of the devices.

[75] On this basis, it seems obvious that there are reasonable grounds to believe that a search of 331 Connaught Avenue for electronic devices will afford evidence with respect to the commission of offences involving child pornography. The IP address used to upload child pornography was associated with that particular residential address. Moreover, a person residing at 331 Connaught Avenue appears to be the same person whose Facebook account was used in the upload. A search of 331 Connaught Avenue would thus be likely to afford evidence with respect to the commission of the offenses under investigation.

[76] Counsel for Mr. Shokouh argues, however, that the Search Warrant was overly broad. He notes that the Search Warrant authorized a search for eight different categories of electronic devices, data and information. He argues that the ITO did not explain how these particular devices, data or information would be likely to provide evidence with respect to the commission of the child pornography offenses under investigation.

[77] I see no merit to this challenge to the sufficiency of the ITO. At this stage of the investigation, the police do not know what type of electronic device might have been utilized in the upload of child pornography. Nor are they even aware of what types of electronic devices might be present at 331 Connaught Avenue. The ITO therefore requested authorization to search 331 Connaught Avenue for any electronic device that they might find which is capable of sending, receiving and storing information, since there are reasonable grounds to believe that this will assist in their investigation of the offences.

[78] As the Supreme Court of Canada held in R. v. Vu [17], in obtaining a search warrant that extends to computers, police are not required to identify in advance each computer to be searched. Nor do they even need to have reasonable grounds to believe that any computers will be found in the place to be searched. They only need reasonable grounds to believe that “any computers they discover will contain the things they are looking for.” [18]

[79] By parity of reasoning:

i. It is reasonable to believe that an upload of child pornography occurred at 331 Connaught Avenue, since this is the address associated with the IP address that was used in the upload; ii. That upload could only have been made using an electronic device capable of sending, receiving and/or storing data; iii. Therefore, it is reasonable to believe that the seizure and subsequent examination of electronic devices capable of sending, receiving and/or storing data found at 331 Connaught Avenue will afford evidence with respect to the commission of the offences under investigation; iv. The fact that the police do not know in advance what device, or type of device, was used to upload child pornography is irrelevant. Police may seize any electronic device capable of sending, receiving and storing data that is found at the location, since it is reasonable to believe that examination of such devices will afford evidence with respect to the commission of the offences under investigation.

[80] Mr. Shokouh’s challenge to issuance of the Search Warrant is accordingly dismissed.

P. J. Monahan J. Released: May 2, 2022

References

[1] R. v. Sinclair, 2010 SCC 35 at para 32. [2] See generally R. v. Manchulenko, 2013 ONCA 543 ("Manchulenko"), at para 64. [3] Manchulenko, at para 65. [4] R. v. Baig, [1987] 2 SCR 537. [5] R. v. Smith, [1989] 2 SCR 368. [6] Compare R. v. Black, [1989] 2 SCR 138 (charge upgraded to first degree murder from attempted murder, necessitating a repetition of right to counsel) with R. v. Chalmers, 2009 ONCA 368 (decision to detain a person who was previously a suspect does not require a repetition of right to counsel.). [7] R. v. Grant, 2009 SCC 32, 2 SCR 353, at para. 71 (“Grant (2009)”). [8] See R. v. Boussoulas, 2014 ONSC 5542, at para. 157, affirmed in 2018 ONCA 222. [9] R. v. Le, 2019 SCC 34, at para. 158. [10] See the analysis of Brown J.A. in R. v. Omar, 2018 ONCA 975, at paras. 108-121, affirmed in 2019 SCC 32. [11] R. v. Hodgson, 1998 ABCA 396. [12] R. v. McIntosh, (1999), 128 OAC 69 (Ont. CA). [13] R. v. Sharpe, 2001 SCC 2. [14] R. v. T (S.G.), 2010 SCC 20, at para 28. [15] Manchulenko, at para 71-72. [16] R. v. Sadikov, 2014 ONCA 72, at para. 81. [17] R. v. Vu, 2013 SCC 60 (“Vu”). [18] Vu, at para 48. See also R. v. McNeill, 2020 ONCA 313, at paras 55 – 56.