ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.A.

Applicant/Defendant

Robert Scott, for the Crown

Robert Chartier, for the Defendant

HEARD: March 21 and 23, 2022

RULING ON SECTION 8/24(2) CHARTER MOTION

DI LUCA J.:

[1] A.A. is charged with sexual assault causing bodily harm, sexual assault with a weapon, incest, make child pornography, sexual interference, sexual invitation to sexual touching, sexual assault, sexual exploitation, and assault against his biological child A.A.[1]

[2] He has elected to be tried by judge and jury. His trial is scheduled to commence before me on September 26, 2022, and is scheduled to last two weeks.

[3] These reasons address a pre-trial motion to exclude evidence seized pursuant to a search warrant.

(i) Overview

[4] By way of background, in June 2020, the York Regional Police commenced an investigation into the defendant regarding a complaint of historical sexual assaults made by his child.

[5] On September 23, 2020, the defendant surrendered to police and was interviewed. During this interview, he advised that he was residing at 3 Walker Road, in East Gwillimbury.

[6] On September 24, 2020, police obtained a search warrant for the residence at 3 Walker Road. When the police attended at that location to execute the warrant, they spoke with Shelley Cernanec who advised that the defendant had been staying at another residence with a person named Ashley Gilpin.

[7] Ms. Gilpin learned of the police investigation and turned over to police a cell phone in a red case. Subsequently, after the warrant at 3 Walker Road had been executed, Ms. Cernanec contacted the police and advised that Ms. Gilpin had dropped off additional property belonging to the defendant. The property included a backpack containing a Lenovo laptop computer, several USB keys, a foreign passport in the defendant’s name and a black cell phone.

[8] Police obtained a second warrant authorizing the seizure of these additional items. The black cell phone was seized and analyzed. Police discovered photos of certain sex toys. The contents of the black cell phone are the subject of the motion to exclude evidence. No other relevant evidence was discovered as a result of the searches.

[9] The defendant argues that the Information to Obtain (ITO) for the initial search of the residence was invalid as the information regarding where the defendant was residing at the time came from an involuntary police interview of the defendant. The defendant argues that his right to silence was violated when the police advised him that he had an obligation to provide his address. The defendant submits that once this improperly obtained evidence is excised, there is no basis in the first ITO to establish a connection with the location to be searched.

[10] Next, the defendant argues that the second search warrant failed to meet the minimum constitutional standard of establishing reasonable grounds to believe that evidence would be located on the cell phone that was later seized and analyzed.

[11] Lastly, the defendant argues that the failure to file a Report to Justice after the search of the cell phone resulted in a further violation of s. 8 of the Charter.

[12] The Crown agrees that the police interview of the defendant resulted in a violation of s. 7 of the Charter and that as a consequence, the address obtained from the defendant must be excised from the first ITO. As a result, the Crown accepts that the initial search of 3 Walker Road was unlawful as the police did not otherwise have a basis to connect that address with the defendant.

[13] That said, the Crown submits the cell phone examined was not seized pursuant to the first warrant. While the execution of the first search warrant is how the police ultimately ended up learning of the cell phone, the Crown argues that the police then obtained a valid second warrant that permitted the search of the phone. Importantly, the Crown notes that Ms. Gilpin, who dropped off the backpack containing the cell phone, did not act on the instruction, request or suggestion of the police.

[14] Lastly, the Crown argues that the failure to file a Report to Justice in relation to the data seized pursuant to the second warrant does not amount to a violation of s. 8 of the Charter.

[15] The evidentiary record for the Garofoli motion is based on an application record containing the sworn ITO and Search Warrants. Apart from the factual backdrop provided by counsel in their written materials and submissions, no other evidence was called.

(ii) Information to Obtain First Search Warrant

[16] On January 23, 2016, A. disclosed to his social worker that he had been sexually assaulted on numerous occasions by his father. A police investigation was commenced but the following week, Child and Family Services advised the police that A. had told his therapist that he was not ready to come forward. The case was closed pending further information.

[17] In June 2020, A. came forward to police and provided a statement advising that he had been sexually assaulted by his father. For the purpose of the Garofoli motion, there is no issue that A.’s statement provides an ample basis for reasonable grounds to believe that a number of sexual offences had been committed as set out in the ITO’s. As such, the facts I will set out below are not intended to be an exhaustive review of the allegations advanced. Rather, they will provide a brief overview of the nature of the allegations, along with a summary of the facts that relate specifically to the issues on the motion.

[18] In his initial police statement, A. reported, inter alia, that the sexual abuse commenced when he was five or six years old, and he recalled first being raped at approximately seven years of age. A. described various acts including mutual oral sex and sexual touching.

[19] He also described how he was blindfolded and raped from behind. A. believed that his father took photographs of him as he could hear “camera noises.” A. reported that there were times when his father used sex toys on him, including anal plugs and a pink vibrator. He described a black duffel bag that was used to store sexual items such as pink fuzzy handcuffs, a neck collar and leash, as well as a camera and tripod. A. explained that the bag was stored in a drop ceiling in the basement of the family home on Gorham Street in Newmarket.

[20] A. explained that while growing up his father would cuddle with him and show him pornographic videos on his laptop. Some the videos involved A.’s mother along with other women. A. also explained that the defendant would have unknown men come into the home and these men would observe him naked and touch him.

[21] A. described how the last occasion of rape occurred right before he turned 14 and entered the care of the Children’s Aid Society (CAS). A. had started seeing a counsellor and the defendant came home drunk one night and told him he could not tell the counsellor anything. He then pushed A. onto the couch and forced intercourse.

[22] On September 15, 2020, A. provided a further statement to police providing additional details about the sexual assault allegations. In this statement, A. described how he recalled the details of a sex video that involved his mother and father and was shown to him by his father. He also spoke about other videos and explained that the video that bothered him the most was a video which showed him asleep and his naked father flipping him onto his stomach in order to sexually assault him. A. described another video that had been filmed in his bedroom. He could recall seeing in the video a specific lamp that was in the bedroom at the time. Lastly, A. described how his father gave him a cell phone and would send pornography and text messages to the cell phone. A. explained that he had thrown out the phone “several years ago.”

[23] On July 2, 2020, police interviewed A.’s mother who confirmed that she and the defendant would videotape some of their sexual activities. She also advised that sex toys and the videos would be kept in a black leather suitcase that had a combination lock. She explained that there was no way that A. would know of the contents of the suitcase.

[24] On September 17, 2020, an arrest warrant was issued for A.A. On September 20, 2020, A.A. was contacted by police and he agreed to surrender into police custody. During this initial discussion, he refused to provide his address.

[25] On September 22, 2020, the defendant was arrested and interviewed after he spoke with duty counsel. The interviewing officer stated that he had an obligation to reveal his address. In response, the defendant advised that he was currently residing at 3 Walker Road, Holland Landing.

[26] On September 23, 2020, police obtained a warrant to search the residence at 3 Walker Road. The items to be searched for included: computer systems, external media and child pornography. The warrant also authorized police to search for documents containing usernames and passwords, a black suitcase with a combination lock, a black duffel bag, pink handcuffs, sex toys, black binding straps, cheetah print videos,[2] and VHS videos.

(iii) The Information to Obtain the Second Warrant

[27] The second warrant relates specifically to seizing a backpack containing a Lenovo laptop computer, USB devices, a black cell phone and foreign passport in the name of A.A. The warrant also authorizes a search of the computer systems and external media for child pornography.

[28] In terms of the charges under investigation and in relation to which evidence was being sought, the ITO lists a number of sexual offences relating to A.A. It also includes the offence of make child pornography “to wit: video’s” [sic]. It does not include the offence of possession of child pornography.

[29] The second ITO mainly tracks the language and content of the first ITO, but also includes information as to what occurred during the execution of the first search warrant on September 23, 2020. The affiant explains that during the execution of the warrant, the homeowner Ms. Cernanec advised that she had spoken with her friend Ms. Gilpin who, in turn, advised that A.A. had been staying with her since September 18, 2020. Ms. Gilpin also advised that A.A. had left behind a cell phone. She then delivered the cell phone to 3 Walker Road and turned it over to police.

[30] Later that same evening, following the execution of the first search warrant, the police were contacted by Ms. Cernanec who advised that Ms. Gilpin had discovered additional property in her spare bedroom. Ms. Gilpin indicated that she did not want any of his property at her house and she transported the property, which was contained in a backpack, to 3 Walker Road.

[31] In terms of the affiant’s grounds to believe that the computer/cell phone devices would contain evidence of the criminal offences under investigation, the affiant states as follows in the ITO at paras. 36-40 [with names redacted]:

36. The victim reported that suspect took photographs of her in addition to showing her a sex tape with the victim’s mother. Additionally, the victim described in detail, the video of child pornography of herself and that was shown to the victim by the suspect and detailed in her statement provided on September 15th, 2020.

37. I know from my prior assignment to the Internet Child Exploitation Unit which was responsible for investigation [sic] child pornography offences that the suspect is extremely unlikely to delete or destroy these images that he would have obtained of the victim. I also believe that the suspect will have other images and or videos of child pornography located on his electronic devices in addition to the photographs and videos of the victim that I expect to find.

38. I know from my training and experience that digital media or media that have been converted to a digital format is easier stored on multiple devices and platforms. These electronic files are easier stored on USB drives, portable hard disk drives or computers. I believe that the suspect has likely converted the VHS sex tape with [Z.A.] for safe keeping to a digital format. I further believe that the suspect has converted the images and videos of child pornography that the suspect has taken of the victim, [A. A.] and I believe that it likely [sic] that he has stored these videos on multiple locations on multiple devices.

39. I know from my training and personal experience that most people are heavily reliant on electronic and mobile devices for numerous daily activities such as, banking, social media, email and entertainment. Further, these mobile devices are always keep [sic] accessible within arm’s reach and likely to be kept in an area occupied by the accused.

40. Communication with the accused was done using his cell phone, when the accused was arrested his cell phone was not located with him at the time, I believe that his cell phone and other electronic devices will be located at his residence located at 3 Walker Rd. in the Town of East Gwillimbury.

[32] Under the heading “Grounds to Believe that the Things to Be Seized Will Afford Evidence of the Offence”, the affiant concludes as follows at paras. 52-57:

52. I know from my training and personal experience that people can use computer systems, such as laptop computers, as a way to access the internet for content including photographs and videos of both adult and child pornography.

53. I also know from my experience that people tend to engage in activities related to child pornography in the privacy of their own home. I believe that it is reasonable at [sic] the suspect has the images and videos being sought in a location that is close to him and easily accessible.

54. I believe based on my training, experience and the nature of the charges that it is likely that the accused will have images and videos of child pornography in addition to the victim on his electronic devices.

55. I know from my training and experience that videos and images files are easily transferred between electronic devices using email and other messaging and file sharing applications. Once these files are transferred they can be easily viewed on another device such as a cell phone, laptop computer or desktop.

56. I believe on reasonable and probably [sic] grounds that the accused has committed the offences outlined in Appendix B, including child pornography offences and that the items being sought will provide evidence of these offences.

BACKPACK

57. I believe that the backpack brought to 3 Walker Rd., contains personal items belonging to the accused including a cell phone, computer systems and electronic devices used by the accused to commit the child pornography offences. [Emphasis in original]

(iv) The Report to Justice

[33] While a Report to Justice was filed with respect to physical items seized during the execution of the search warrants, a further Report to Justice was not filed once the police examined the contents of the electronic devices seized, in particular the black phone whose contents are the subject of this motion to exclude evidence.

(v) The Guiding Legal Principles

[34] Search warrants are generally issued on the basis of “reasonable and probable grounds”. This standard requires “credibly based probability”, see: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1982] 2 S.C.R. 1140 at para. 47. This standard does not require proof on a balance of probabilities, see R. v. Kalonji, 2022 ONCA 415 at para. 29. The ITO must disclose reasonable grounds to believe that an offence has been committed, and that evidence in relation to that offence will be found at the place to be searched, see R. v. Sadikov, 2014 ONCA 72 at para. 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417, at para. 9:

In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”).

[35] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250.

[36] An officer is entitled to rely on training and experience in assessing grounds but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. The assessment of the objective reasonableness of the officer’s belief must be conducted through the lens of a reasonable person “standing in the shoes of the police officer”, see R. v. MacKenzie, 2013 SCC 50 at para. 63. However, the court is not required to uncritically accept an assertion relating to police training and experience, see R. v. MacKenzie at para. 64.

[37] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established, see: R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (ONCA) at p. 13-16 and Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (ON CA), at p. 500. That said, an issuing justice is permitted to draw reasonable inferences from stated facts, see: R. v. Nero, 2016 ONCA 160 at para. 71. The affiant need not underline the obvious, see: R. v. Vu, 2013 SCC 60 at para. 16.

[38] On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant, see: R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, 2010 SCC 8, at paras. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[39] The review is conducted based on the whole of the ITO, using a commonsense approach sensitive to all of the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant, see: R. v. Morelli at para. 167, R. v. Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), R. v. Ngo, 2011 ONSC 6676 at paras. 33-35, and R. v. Persaud, 2016 ONSC 6815 at para. 64.

[40] In terms of the Report to Justice, there is no issue that s. 489.1 of the Criminal Code requires police officers who seize items to make a report to a justice “as soon as practicable” in respect of items seized. The Report to Justice is an important component of the judicial authorization process and it serves as the gateway to the s. 490 process which relates to judicial oversight of seized items, see R. v. Garcia-Machado, 2015 ONCA 569 at paras. 16, 44 and 45, and R. v. Canary, 2018 ONCA 304 at para. 45.

[41] Where the item seized is electronic data obtained from a device which is already the subject of a Report to Justice, there is a divide in the caselaw as to whether the police are required to file a further Report to Justice upon obtaining the data, see R. v. Robinson, 2021 ONSC 2246, wherein the court held that s. 489.1 should not be interpreted so as to require the filing of a second Report to Justice and R. v. Merritt, 2017 ONSC 1508, R. v. Sinnappillai, 2019 ONSC 5000, R. v. Neill, 2018 ONSC 5323 and R. v. DaCosta and Jeffrey, 2021 ONSC 6016, where the courts came to the opposite conclusion.

(vi) Analysis

[42] I turn next to reviewing the contents of the ITO in accordance with the applicable legal principles.

[43] In relation to the ITO for the first warrant, the Crown concedes that the police violated the defendant’s s. 7 Charter right to silence when they advised him that he had an obligation to provide his address during his cautioned police statement. This not an instance where the police were simply asking background questions aimed at obtaining tombstone data for the purpose of processing a detainee. The police did not know where the defendant was living at the time and had obtained a warrant to arrest him. When they first spoke to him by telephone, he refused to reveal his address. The only source for the address in the ITO appears to have been A.A’s admission made during the interview.

[44] The information obtained from A.A. during his involuntary police interview was unlawfully obtained and is to be excised from the ITO, see R. v. Sonne, 2012 ONSC 140 at para. 17. Once the address is excised from the warrant, there is no connection between the offences under investigation, the evidence sought and the location to be searched. In other words, one of the mandatory statutory preconditions of a valid search warrant is left unaddressed by the ITO post-excision. As such, I am satisfied that the first warrant must be quashed.

[45] I turn next to second warrant. The defence argues that I should excise any evidence obtained as a result of the first warrant, and notes that the excision should extend to cover the events that transpired with Ms. Cernanec when the police officers were conducting the first search. In essence, the defence argues that the police should not be able to rely on information they obtained during the execution of the invalid first warrant. Had the police not been in the home, and had the police not had an opportunity to speak with Ms. Cernanec, the series of events that resulted in the backpack being brought to 3 Walker Road by Ms. Gilpin would have never occurred.

[46] The defence further argues that the ITO for the second warrant sets out an insufficient basis upon which the issuing justice could have issued the warrant for the backpack and, more particularly, the examination of the electronic devices contained within the backpack.

[47] The Crown argues that while the first warrant is invalid, the scope of excision should not be as broad as suggested by the defence. The Crown notes that the police came to posses the first cell phone and later learned of the backpack’s presence at 3 Walker Road through no effort on their part. It was simply a happenstance event occasioned by well intentioned members of the public who voluntarily turned over items belonging to the defendant. In addition, the Crown notes that the police obtained a second warrant in order to seize the backpack and the electronic devices within it.

[48] In considering the issue of reasonable grounds to search the contents of the electronic devices, I start by noting that the police were looking for the sex tapes involving the defendant and the complainant’s mother, any videos or images of the complainant which would constitute child pornography, and any other child pornography.[3]

[49] The police had a clear basis to believe that the defendant had made a sex tape with Z.A., the complainant’s mother. They were advised by Z.A. that the “videos” were stored in a locked black briefcase. While there is no specific mention of the format of the videos, the affiant clearly inferred the sex tapes were created on a VHS tape or tapes as that is one of the items sought in the first warrant. As well, in the second warrant at para. 38, the affiant asserts his belief that the sex tape involving the complainant’s mother, which was on VHS, would have been later converted to a digital format.

[50] The police also had information from the complainant that the defendant had shown him sex tapes involving his mother. As set out paragraph 17(s) of the ITO, these videos were shown using the defendant’s laptop. As set out in paragraph 21(n) of the ITO, the defendant sent pornography to the complainant’s cell phone. Lastly, as set out in para. 17(e) of the ITO, the defendant took photographs of the complainant during sexual acts. While the complainant does not specifically mention the use of a camera, he recalled hearing “camera noises” when the photos were taken.

[51] The police also learned that the defendant had moved out of the house when the complainant was around 14 years of age, and he went into the care of the CAS. The sexual abuse ended just prior to the move. Given the complainant’s date of birth, this would place the dates of the abuse between 2003 and 2012.

[52] Against this backdrop, the defence raises three issues with respect to the conclusions set out in the ITO.

[53] First, the defence argues that the affiant engaged in speculation by asserting a belief that the defendant has: (a) likely converted the VHS sex tape into a digital format, (b) converted images and videos taken of the complainant (which amount to child pornography) and (c) likely stored the videos in multiple locations and on multiple devices.

[54] Second, the defence argues that the passage of approximately eight years since the date of the last alleged sexual assault completely undermines the suggestion of current possession of the images and videos by the defendant.

[55] Lastly, the defence argues that the basis for the search for other child pornography was entirely speculative and based upon a bald assertion that the defendant will be in possession of other child pornography.

[56] Starting with the first issue, it appears that the affiant concluded that the original sex tape between the defendant and the complainant’s mother was recorded on VHS and stored in a locked black briefcase. The nature of the items sought in relation to the first warrant and the comments contained in both ITO’s about converting VHS tapes to a digital format also amply support this conclusion.

[57] While I agree that it is speculative to simply opine that a person would likely convert a VHS tape to a digital format in order to make it easier to store for safekeeping, the ITO reveals a basis for concluding that the sex tape with the complainant’s mother was already in a digital format. Indeed, the complainant indicated in his statement that the defendant showed him a video of sexual acts between the defendant and the complainant’s mother on his laptop. An obvious and available inference based on this assertion is that the sex tape was either originally in a digital format or had been converted to a digital format in order for it to be shown to the complainant.

[58] In terms of the affiant’s assertion that the defendant “has converted” the images and videos of the complainant (that are by definition of child pornography), I note that there is no suggestion anywhere in the ITO that the images and videos of the complainant were taken in a manner that required “conversion.” While the complainant explained that he heard “camera noises” when being photographed, the presence of audible “camera noises” does not necessarily mean that a traditional film camera was used. An available inference is that a digital camera was used, and it simply made a “camera noise” when taking a picture. As such, the officer’s assertion that the defendant would have “converted” the images and videos was superfluous in the circumstances. Ultimately, while I agree that the assertion was speculative, it added nothing to the grounds.

[59] I turn next to the affiant’s asserted belief that the defendant has likely stored the videos of the complainant “on multiple locations and multiple devices.” In my view, the ITO provides no support for this proposition.

[60] While I appreciate that the assertion must be read in context with the affiant’s earlier assertion that based on his experience investigating child pornography offences the defendant is “extremely unlikely” to delete or destroy these messages, and his later assertion that based on his experience people tend to engage in child pornography related activities in their home and that as a result, “it is reasonable” that the defendant would have the images and videos sought “in a location that is close to him and easily accessible”, the images and videos in this case would have been taken no later than 2012, some eight years prior to the issuance of the warrant.

[61] In my view, while it may be reasonable to suggest that a person is “extremely unlikely” to delete child pornography images and videos taken of their child, it is a whole other thing to suggest that the person will have transferred those images and videos to a laptop and, more particularly, a cell phone they have in their possession eight years later. I reach this conclusion even though I accept as reasonable the officer’s assertion that video and image files are easily transferred between electronic devices and platforms and can be easily viewed on various devices including cell phones, laptops and desktop computers. The ease of transferring digital files across devices does not support a reasonable inference that the defendant is likely to have transferred the subject images to the electronic devices in his current possession so many years after the fact. In this regard, it must be kept in mind that some of the subject images and videos purport to capture the defendant committing sexual assaults against his child. Contrary to the affiant’s assertion, it seems highly unlikely that the defendant would want to have this material available years later on a cell phone that could readily be lost or viewed by others.

[62] Lastly, I turn to the affiant’s assertion that based on his “training, experience and the nature of the charges”, it is likely that the defendant will have other child pornography on his electronic devices. In addressing this assertion, I note that there is no suggestion anywhere in the ITO that the defendant accessed, possessed or showed other child pornography to the complainant. The chain of inference is essentially that since the defendant created child pornography by taking sexual photos and videos of his child, he is also likely to possess other child pornography. In my view, this is an inference based on a generalization of a “type of offender.” Ultimately, on the evidence in the ITO, it is speculative to draw an inference that the defendant “will have” other child pornography in his possession. This inference is even more speculative when one considers the gap of at least eight years between the alleged events and the search.

[63] When the substance of the ITO is considered in context, the affiant’s assertions relating to his belief in the current possession of the items sought are very similar to those addressed in R. v. Morelli, supra, at paras. 70-73. While the affiant in this case asserts a belief based on “experience and training”, there is nothing in the ITO that explains how it is that the experience and training actually supports the stated inferences in the factual context of this case. Ultimately, while a court must consider an officer’s training and experience, the bald assertion of a belief based on training and experience without more, provides little to no context within which an issuing justice can assess the reasonableness of the stated beliefs.

[64] On the evidentiary basis revealed in the ITO, I conclude that no justice could issue a warrant to search the defendant’s laptop and cell phone. I find that the applicant’s s. 8 rights have been violated and the warrant to search the backpack and the electronic devices contained therein is quashed.

[65] In view of this finding, I need not consider the challenging issue of scope of the excision that is appropriate in view of my findings in relation to the first warrant. That said, I will note that the s. 8 violation in relation to first search warrant was sufficiently causally, contextually and temporally connected to the obtaining of the evidence from the defendant’s cell phone, see R. v. Pino, 2016 ONCA 389. Had I upheld the second warrant on the issue of sufficiency of grounds, I would nonetheless have conducted a s. 24(2) analysis in relation to the cell phone and its contents based on the Charter violation stemming from the first warrant.

[66] I turn lastly to the failure to file a Report to Justice. On this issue, I acknowledge that there is split authority. The provisions requiring a Report to Justice were enacted prior to the development of search and seizure law in relation to electronic data. The requirement to file a Report to Justice in relation to the data itself, once an initial Report to Justice has already been filed in relation to the cell phone or computer, may ultimately be seen as a redundancy that Parliament may choose to address. That said, the Report to Justice provisions are not to be ignored and they form an important part of the judicial authorization process. Ultimately, I adopt the comments and analysis of Leibovich J. in R. v. DaCosta and Jeffrey, supra, at paras. 41-49, and find that there is a further violation of s. 8 of the Charter in relation to the failure to file a further Report to Justice in this case. As this is an area of uncertainty and in view of the fact that the police filed an initial Report to Justice, the extent of the breach is not significant.

(vii) The Section 24(2) Analysis

[67] As the Supreme Court of Canada sets out in R. v. Grant, 2009 SCC 32, the focus of the s. 24(2) analysis is on the overall repute of the administration of justice and the public’s confidence in the justice system in view of the long-term consequences of admission of unlawfully seized evidence. In this regard, the applicant bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.

[68] During the course of submissions, the Crown very fairly took the position that if I found that the second warrant did not set out sufficient grounds for the search of the electronic devices, it would not argue in favour of the admission of the evidence.

[69] In accordance with my findings and the Crown’s stated position, I will not conduct an in-depth s. 24(2) analysis. I will simply note the following. First, a search of electronic devices involves a significant intrusion into a person’s sphere of privacy. A search undertaken in the absence of sufficient grounds is a serious form of state misconduct. As well, the search in this case follows an unlawful initial search of defendant’s residence which was premised on information obtained in violation of the defendant’s right to silence. Taken together, these breaches support a finding of serious misconduct that weighs in favour of exclusion, despite the absence of bad faith on the part of the police officers.

[70] Second, the impact of the violation of the defendant’s Charter-protected interests is significant. His residence and electronic devices were searched in the absence of sufficient grounds. His right to silence was also violated. This factor also tips in favour of exclusion.

[71] Lastly, in terms of the societal interest in the adjudication of this case on its merits, I note that the loss of the evidence from the cell phone does not imperil the Crown’s case. At best, the Crown has lost an item of potentially corroborative evidence. While the charges are very serious, the loss of the evidence in this case will not exact too great a toll on the truth-seeking function of the trial process.

[72] The evidence is excluded.

Justice J. Di Luca

Release Date: July 6, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

A.A.

Applicant/Defendant

RULING ON SECTION 8/24(2) CHARTER MOTION

J. Di Luca J.

Released: July 6, 2022

[^1]: For ease of reference, I will refer to the defendant as “A.A.” and the complainant as “A.” I also note that the complainant now uses male pronouns, and I will refer to him using the pronouns of his choice. I note that when the complainant gave his initial statements to police he was using “she/her” pronouns and is described in this fashion in the various police/disclosure material filed on the motion. To be consistent, I will use the same pronouns throughout.

[^2]: Read in context with the ITO, the reference to “Cheetah print videos” is likely a typographical error. It should probably have stated “Cheetah print underwear.” Nothing turns on this obvious error.

[^3]: I note that the first search warrant specified both “VHS videos” and “child pornography” while the second search warrant only specified “child pornography” as the items sought. That said, the ITO’s for both warrants suggest that the police were looking for the sex videos involving the defendant and complainant’s mother, in addition to the stated child pornography.