SUPERIOR COURT OF JUSTICE – ONTARIO
DATE: 20220728
RE: R. v. Gregory Dunford
BEFORE: Justice S. Woodley
COUNSEL: Amanda Kok, for the Crown
Melanie J. Webb, for the Respondent
HEARD: July 22, 2022
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Overview
[1] The Respondent Gregory Dunford was charged with possession of child pornography. This charge was dismissed by Justice Lisa Cameron of the Ontario Court of Justice on October 13, 2021.
[2] The Crown submits that the trial judge made an error in law with respect to her review if the search warrant that resulted in a finding that s. 8 of the Charter of Rights and Freedoms (Charter) was violated and made a further error when she excluded the evidence obtained by the search warrant pursuant to s.24(2) of the Charter.
[3] The respondent submits that the trial judge committed no error in law and the appeal should be dismissed.
Summary of Facts
[4] On December 10, 2019, the investigating officer Detective Constable King (DC) King of the Ontario Provincial Police (OPP) received a lead from Roundup Freenet, a program specifically designed for law enforcement use. DC King identified that twice on December 10, 2019, the IP address 24.235.185.141 had requested blocks/pieces of two suspected child pornography files over Freenet (a peer to peer sharing platform).
[5] On December 10, 2019, DC King viewed the two video files and confirmed that they each contained child pornography content. On that same day PC King learned that the IP address was supplied and maintained by Cogeco Cable. The officer applied for and was granted a production order for subscriber data connected to the IP address involved in accessing the child pornography files.
[6] On December 23, 2019, the officer received the results of the production order and learned that the IP address, as of the date December 9, 2019, was associated to the subscriber Gregory Dunford at 1117 Huntington Circle, Peterborough, Ontario, with a specified phone number and a specified email address.
[7] On January 9, 2020, DC King searched the Ministry of Transportation (MTO) data base for Gregory Dunford at 1117 Huntington Circle, Peterborough, Ontario and learned that Gregory Dunford had a registered address of 1117 Huntington Circle, Peterborough, Ontario since April 2008, and a date of birth of March 31, 1985. The investigating officer also searched the Canadian Police Information Centre database for that name and date of birth, but the search yielded no results (no criminal record).
[8] No further investigative steps were taken to explore the nature of the address or the possibility of other occupants at the address. Likewise, no investigative steps were taken to confirm the existence or nature of any Wi-Fi network associated to the IP address, including whether it was secure.
[9] On January 28, 2020, DC King swore an Information to Obtain a Search Warrant on the basis that there were reasonable and probable grounds to believe that there is in the “dwelling house at 1117 Huntington Circle, Peterborough” items that “will afford evidence with respect to the commission of an offence”, namely that an “unknown person on December 9, 2019”… did access child pornography”.
[10] By his ITO, DC King provided the following additional information:
While reviewing data received by law enforcement Freenet computers, I identified an IP address which was associated with a computer system utilizing the Freenet network to access child pornography.
That IP address was 24.235.185.141
[11] By his ITO, DC King then explained how Freenet works and advised as follows:
the only way to download/ retrieve any file in the Freenet network is for the requestor to have the key. If this key is lost or forgotten, then that file is essentially irretrievable.
The uploader of a file, usually shares the key with other interested users of the network through various forms of communication; either through the network itself of through other websites, chat rooms, e-mail, etc.
The Freenet network does not have a traditional search function. There is nowhere a user can type in a key word or phrase in an attempt to find files for which they are interested. Instead, a user needs the exact key that was generated at the time that the file was inserted into the network. The user enters the key (which is comprised of hash values, the decryption key and the file name) and the network is searched for pieces matching the data in the entered key.
Of note, Law Enforcement users of Freenet do not solicit any requests, they do not target any one user and the data logged is the same data sent to any Freenet per/node. Also, ICACCOPS (Internet Crimes Against Children – Child Online Protective Services) maintains a data base of known child sexual abuse materials available through Freenet.
If it is determined that the request came from the original requester/user (and the request is for known child sexual abuse material) then that data is shared with trained law enforcement members as a “lead”. The data is shared with trained law enforcement including the original requester’s IP address and the content for which they accessed.
On Tuesday December 10, 2019, while reviewing data received by law enforcement Freenet computers, I observed IP address 24.235.185.141, with the Freenet location… Requesting blocks/ pieces of suspected child pornography files. Considering the number of requested block/pieces, the total number of blocks/pieces required to assemble he file, and the number of peers the user was connected to, the number of requests for blocks/pieces of the file was significantly more than one would expect to see if the user of IP address 24.235.185.141 were merely routing the request of another user.
I learned that on December 9, 2019 between 2:00 pm UTC and 2:28 pm, a computer running Freenet software with an IP address 24.235.185.141, with an average of 23.5 connected peers, requested from a law enforcement computer 123 out of 2,348 required blocks/pieces needed to assemble a file with a hash value of…
Based on this has value, the file the video downloaded is associated to a suspected child pornography file named, “Moscoq-6.avi”.
I also learned that on December 9, 2019, between 2:03 pm UTC and 3:15 pm a computer running Freenet software with an IP address of 24.235.185.141, with an average of 27.7 connected peers, requested from a law enforcement computer 73 out of 1,653 required blocks/pieces needed to assemble a file with a hash value of…
Based on the hash value, the file the video downloaded is associated to a suspected child pornography file named “LOLI05.flv”.
[12] DC King swore that he personally viewed the video titled “Moscow-6.avi” and the ITO described the video as being 13 minutes and 1 second in length involving a nude adult male and a nude female child approximately 10 to 12 years old engaging in activity on the video (which activity was described by DC King in the ITO) that meets the definition of child pornography in Canada.
[13] DC King further swore that he personally viewed the video titled “LOLI05.flv” and in the ITO described the video as being 28 minutes and 15 seconds in length involving an adult male nude from the waist down and two female children approximately 12 to 14 years old nude from the waist down engaging in activity on the video (which activity was described by DC King in the ITO) that meets the definition of child pornography in Canada.
[14] DC King provided details of his further investigation which led to discovery that the IP address was subscribed to by the Respondent at 1117 Huntington Circle, Peterborough, and that the Respondent had lived at the 1117 Huntington Circle address since 2008. Other details disclosed in the ITO included the Respondent’s phone number, birthdate, and the fact that a CPIC check yielded no results.
[15] DC King requested that the search warrant have an execution date and time set for January 30, 2020, between daylight hours, utilizing units within the OPP and Peterborough Community Police. DC King noted that members from OPP’s Digital Forensics Unit would be present and would be able to complete an initial triage on data contained within each electronic device to determine whether the device contains any offence related materials related to the investigation.
[16] Under the “Grounds to Believe the things seized will afford evidence of the Offence”, DC King swore that searching any device with the Freenet application installed will provide direct and corroborative evidence that a person in the residence at 1117 Huntington Circle, Peterborough committed the offences outlined in the ITO. DC King further swore “this case revolved around the accessing of child pornography files using an online peer program. By its very nature, it involves electronic communication between different parties. I have viewed the image files shared between the suspect and victims and have read the communications that accompanied the files being sent”.
[17] At paragraph 56 of the ITO DC King swore, “A thorough examination of electronic communication is necessary due to the inherent anonymity in the usage of online services. It is common for users of online services to hide their identity by using aliases and changing their names associated to their user accounts frequently. It is not uncommon for one user to access another user’s account, so as to complicate issues surrounding identity”.
[18] Under “Conclusions” DC King stated that he believed that “someone is utilizing a computer system to access peer-to-peer Freenet file sharing network to access child pornography filed. This computer is accessing the Freenet network through an IP address 24.235.185.141 which belongs to Gregory Dunford at 1117 Huntington Circle, Peterborough. An authorized search warrant will allow officers to enter this residence and seize any of the items listed in Appendix A for their further examination to locate evidence of the offences listed in Appendix B (accessing child pornography).
[19] On January 28, 2020, following review of the ITO, JP C. Noordengraaf, by his Reason for Decision corrected a facial error on the draft Warrant Search and noted a facial error at para 46 of the ITO and granted the section 487 Search Warrant as requested. His Worship noted the “discrepancies are oversights and do not impact the grounds to issue the Warrant to Search”.
[20] On January 20, 2020, officers with the OPP and the Peterborough Police Service executed the search warrant. The house consisted of the two (2) dwelling units. The upstairs tenants consisted of a family of three while the Respondent lived downstairs alone. As a result of executing the search warrant the police seized five (5) devices.
[21] Before his trial for possession of child pornography, the Respondent sought to exclude from evidence the child pornography discovered through the search of his residence. The Respondent brought a Charter application that cited multiple violations of his s. 8 Charter rights. The Crown contested the application.
[22] The Respondent challenged the validity of the warrant that authorized the search of his residence and brought an application to cross-examine the affiant on the Information to Obtain (ITO). The application to cross-examine the affidavit was denied by the trial Judge. There was no amplification nor excision of information from the ITO.
[23] The trial Judge found that there was reliable but insufficient information in the ITO to authorize the issuance of the search warrant. The trial Judge found that the police should have investigated the existence of a Wi-Fi network and determined what type of dwelling it was (single, multiple, location proximate to other municipal addresses) to determine the likelihood that someone else could have accessed the Wi-Fi signal. Her Honor identified a breach of the Respondent’s s. 8 Charter rights and excluded the evidence under s. 24(2) of the Charter.
The Trial Judge’s Decisions
[24] The trial Judge described the issue in the application as whether the information contained in the ITO search warrant was enough to meet the standard of credibly based probability. Although the Respondent’s name had arisen in connection with the IP address, the trial Judge found that at the time the police were at the stage of executing the search warrant, they were looking for evidence of a crime committed by “person(s) unknown in a location strongly associated with the IP address. The trial Judge said information connecting the location to the evidence of a crime was essential to the grounds for the search warrant.
[25] The trial Judge found that there was a substantial connection between the Respondent, the municipal address, and the IP address to the point that “if he (Mr. Dunford) were involved in a crime, there is good reason to think that evidence of that crime would be located at the municipal address”. The trial Judge further stated that due to the Respondent’s association to the municipal address (he had lived there since 2008) it made sense that if he were involved in the crime, there might be some evidence of it at that place (the municipal address).
[26] The trial Judge found the police took no steps to confirm the existence of any Wi-Fi network possibly associated to the IP address including finding out whether it was secure or open. The trial Judge took judicial notice that anyone with a cell phone, or other device capable of accessing the internet, could see Wi-Fi networks displayed on their device along with an indication that the Wi-Fi network was secure or open. According to the trial Judge, the fact the police had not investigated these things, created a reasonable probability that a user not connected to the municipal address of the IP subscriber (the Respondent) had used the internet connection on December 9, 2019, to access child pornography. The trial judge found that “unconnected users” could include 360 degrees of neighbors of the municipal address or any passerby who became aware of a publicly accessible Wi-Fi connection.
[27] The trial Judge found that there was insufficient information in the ITO connecting the location (1117 Huntington Circle) to evidence of a crime (access child pornography) because there was a reasonable possibility that an “unconnected user” could have accessed the Wi-Fi connection on December 9, 2019. Accordingly, the trial Judge found there was reliable but insufficient information in the ITO search warrant and that this resulted in a breach of the Respondent’s section 8 Charter rights. Section 24(2) of the Charter.
[28] In the section 24(2) Charter ruling, the trial Judge concluded that admission of the evidence would compound the injustice and bring the administration of justice into disrepute and all evidence was excluded.
Issues and the Law
[29] The issues on this appeal are as follows:
I. Did the judge fail to correctly apply the law as it relates to the standard of review for judicial authorizations?
II. Did the Judge err in concluding that the ITO must disclose information respecting the existence, or non-existence, of a wireless network?
III. Did the judge err in concluding that the respondent’s s. 8 rights were breached and as a result the evidence should be excluded under s. 24(2) of the Charter?
The Standard of Appellate Review
[30] The trial Judge’s conclusions are entitled to deference absent an error in principle, a palpable and overriding factual error, or an unreasonable determination: R. v. P.W., 2020 ONCA 201, citing R. v. Grant, 2009 SCC 32, R. v. Mian, 2014 SCC 54; R. v. Mack, 2014 SCC 58; R. v. Buchanan 2020 ONCA 245.
[31] When an appellate court reviews a trial Judge’s conclusion on the existence of a breach of the Charter and/or the admissibility of evidence under s.24(2) of the Charter, it is a question of law and should be reviewed on a standard of correctness: see R. v. Man, 2018 ONSC 1703, at paras. 8-10; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, (S.C.C.), at paras. 42-45; R. v. Manchulenko, 2013 ONCA 543, 301 C.C.C. (3d) 182, at para. 43.
[32] An appeal court is not entitled to retry the case de novo on the transcript. Unless the record reveals an error of law or in principle, or a clear and manifest error in the appreciation of the evidence, there is no basis for appellate intervention.
Review of Warrants
[33] Warrants, as issued, are presumptively valid. The onus is on the party challenging the warrant to establish that sufficient grounds did not exist to support the issuance of the warrant: R. v. Campbell, 2010 ONCA 588, 270 O.A.C. 349, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549.
[34] As summarized by Justice N. Brown, in R. v. Martin Gregory Smith, 2011 BCSC 316, the applicable principles relevant to the judicial review of the sufficiency of an ITO and the validity of a search warrant, applicable to the present case, are as follows:
I. There needs to be subjective belief on the part of the affiant based on sufficient credible and reliable evidence that there exist reasonable and probable grounds for the evidence sought: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.);
II. Sufficient credible and reliable evidence must be set out in the ITO so the authorizing Justice has an objective basis to determine whether the application should be granted. If based on the record before the authorizing Judge as amplified on the review, the reviewing Judge concludes the authorizing Judge could have granted the authorization, then they should not interfere: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C) para 56; R. v. Araujo, 2000 SCC 65 (S.C.C) para 51;
III. The affiant is obliged to disclose all material facts sufficient to establish reasonable grounds that an offence has been committed, that the things to be searched will afford evidence, and that the things in question will be discovered at a specified place: R. v. Morelli, 2010 SCC 8 (S.C.C.) para 40;
IV. The standard of proof is not proof beyond a reasonable doubt, but rather reasonable grounds, and the affiant is not to use conjecture or to hypothesize about the evidence the search will afford;
V. The burden of proving the accused’s rights were infringed rests on the balance of probabilities with the accused: R. v. Feldman (1994), 4 B.C.A.C 31 (B.C.C.A), affirmed in R. v. Feldman 1994 CanLII 37 (SCC), [1994] 3 S.C.R 832 (S.C.C);
VI. The affiant has an obligation to make full, frank and fair disclosure about material facts they are aware of. This does not include every fact that might possibly be relevant: R. v. Concepcion (1994), 48 B.C.A.C. 44 (B.C.C.A), para 36. Only if the affiant has good reason to believe information is unreliable are they entitled to disregard it: R. b. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A) para 21.
VII. The authorizing Justice may draw inferences from the facts presented: R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Gen. Div.) para 20;
VIII. On review, good faith or minor, technical errors when drafting affidavits can be amplified during the course of evidence, so long as they are good faith ones rather than deliberate attempts to mislead the Justice: Morelli, para 41;
IX. After first assessing whether there were sufficient grounds on which the Judge could have authorized the warrant, the reviewing Judge is required to assess the evidence placed before the Justice, in the light of the evidence brough at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remains to support the warrant: Araujo, para 53;
X. What is material information depends on the circumstances of a case. It must be significant information that relates to the issues of probably cause or investigative necessity: R. v. Scotland (2007), 76 W.C.B. (2d) 331 (Ont. S.C.J) para 72; and
XI. The standard of persuasion is one of credibly based probability: Baron v. R., 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416 (S.C.C.), para 43; Canada (Director of Investigation Branch) v. Southam Inc. 1984 CanLII 33 (SCC), [1984] 2 S.C.R 145 (S.C.C), pp. 114-115.
[35] The “reasonable grounds to believe” standard neither requires proof beyond a reasonable doubt nor proof on a balance of probabilities, but instead imports a credibly based probability standard. As Watt J.A. held in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81, “If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued.”
[36] Assessing whether reasonable grounds existed, the reviewing court must consider the ITO as a whole, taking a common sense, practical, non-technical view of it. Any reasonable inferences arising from the facts as set out in the ITO must be considered as well: Sadikov, at para. 82.
[37] The question according to the Supreme Court of Canada as noted in Morelli, at para 40, is whether there was sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[38] The ITO need not disclose reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[38] The ITO need not disclose reasonable grounds to charge the Applicant with the named offence. It is sufficient if the ITO provides reasonable grounds to believe that the search as authorized by the warrants may assist the investigation into the offence specified: see R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168, at par. 33.
Analysis
[39] The trial Judge found that the police should have investigated the Wi-Fi network at the target address. According to her ruling, if they had done this, it may have resulted in the inclusion of information in the ITO that may have given rise to evidence that the perpetrator of this offence resided outside the target residence.
[40] Unfortunately, binding caselaw that already determined and dismissed this very issue. Was not provided to the trial Judge in the present case.
[41] In the case of R. v. Brzezinski, [2009] O.J. No. 5825, as followed by R. V. Martin Gregory Smith, 2011 BCSC 316 Justice A. W. Bryant, inter alia, considered:
I. That the search warrant was issued upon an information which failed to disclose the required reasonable grounds to justify the issuance of a search warrant;
II. That the ITO the search warrant failed to disclose any information respecting the existence, or non-existence, of a wireless network associated with the computer(s) associated with the suspect IP address, and failed to disclose whether any investigation had been done by the police to ascertain the existence, or non-existence, or such network;
III. That had the issuing Justice been made aware of the possible existence of an unsecured wireless network associated with the IP address, there would have been no reasonable grounds to search the residence of the subscriber of the suspect IP address by any number of other people using computers in other residences in the neighborhood over an unsecured wireless network.
[42] In Brzezinski, counsel informed the Court that the grounds for quashing a warrant on this basis had not been previously judicially considered.
[43] Justice Bryant, noted that counsel focused on two issues: (1) there was a “real possibility” that there was an unsecured wireless network at the target residence and a neighbor used the target IP address for sharing and downloading computer files of pornographic images, photographs and videos; and (2) the affiant should have informed the Justice of the Peace of the possibility of an unsecured wireless network at the target residence and that this possibility “fundamentally affects” whether or not there are grounds to believe that evidence of the offence will be found at the target residence.
[44] In Brzezinski, counsel argued, similar to the present case, that it was possible for an unknown person in a nearby residence to connect to the target IP address through an unsecured wireless network at the target residence and share or download pornographic data using the targeted IP. The proffered hypothesis could only occur if there was an unsecured wireless network at the IP address (or if the party accessing the address had knowledge of the password).
[45] Again, similar to the present case, it was unknown whether there was a wireless network at the target residence; and further, if a wireless network was present whether it was unsecured.
[46] following a review of the evidence called, Justice Bryant concluded that the required inference that a neighbor (or unknown person) was the person who shared or downloaded pornographic data through a wireless connection cannot logically be drawn because the existence of a wireless network at the target IP had not been established by the evidence.
[47] Justice Bryant found that the only evidence that a third-party neighbor might have connected to the target IP address to share or download pornographic data is that – it is a possibility. This hypothetical possibility is speculative and insufficient to detract from the reasonable grounds that existed within the confines of the ITO.
[48] As for the failure of the ITO to disclose that possible existence or non-existence of a wireless network associated with the target IP address, and the affiant’s failure to disclose whether the police had conducted an investigation to ascertain the existence or non-existence of such a network, Justice Bryant reviewed the test to be applied as crystallized by the Supreme Court in Araujo, at para 54, as follows:
Again, the test is whether reliable evidence that might be reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing Judge, the application should have been granted at all by the authorizing Judge.
[49] Having reviewed the evidence, Justice Bryant concluded that the Justice could have granted the search warrant based on the record before the authorizing Judge (which evidence was amplified on the application before him).
[50] This same issue was also considered by Justice N. Brown of the British Columbia Supreme Court in Martin Gregory Smith, supra.
[51] In Martin Gregory Smith, the applicant challenged the validity of an ITO, inter alia, on the basis of the affiant’s decision not to inform the issuing Justice that several unencrypted wireless networks had been detected near the applicant’s residence during surveillance. It was submitted that this failure constituted a material non-disclosure sufficient to quash the authorization.
[52] In Martin Gregory Smith, on the hearing of the application, the affiant advised that he had discovered 20 wireless networks outside of the Smith residence, four without encryption. He did not include this information in the ITO as he did not view it as pertinent. The officer explained that he cannot, without physically examining the computer, determine if it is connected to the Internet wireless, or even if the wireless device used in downloading child pornography is located in the residence.
[53] The applicant submitted an unencrypted wireless network could be used by any person within range, such as a neighbor to download and share child pornography. The Court noted “that is not controversial”, however, the “hypothetical neighbor accessing the wireless network to download child pornography does not give the neighbor access to the applicant’s computer drive”.
[54] Having reviewed the evidence, Justice Brown in Martin Gregory Smith concluded that the police were not obligated to conduct a wireless scan to identify the possible existence of wireless networks in the vicinity. They were not obliged to conduct detailed scanning techniques to narrow the scope of any wireless signal they may have detected. They were not obligated to conduct any sniffing, or electronic eavesdropping, certainly not with the authorization of a specific warrant… the courts are not called on to dictate investigative techniques to the police, but to ensure the investigative techniques used respect the Charter, and that all material evidence resulting from the investigation is fully, fairly and frankly disclosed.
[55] Justice Brown held that he did not find that evidence of an encrypted or unencrypted wireless signal “would alter the investigative path in this case or others like it. The only reliable way to establish the likely innocence or guilt of occupants of the location, with or without a wireless network, is to examine the computers, routers and any other electronic storage devices inside the location. An absence of any such absence would indicate to the police another investigative path is required”.
[56] Justice Brown noted the decision in Brzezinski, and held that while the information supporting the applications differ, the reasoning was apposite. The nature of wireless networks remains similar and the police (as in the case at bar) needed more information to determine if the offence in question had been committed by an occupant of the residence the IP address was associated with, and other, more intrusive, electronic investigations would have required obtaining a search warrant as well.
[57] In addition to Brzezinski and Martin Gregory Smith, the Court of Appeal in R. v. McNeill, 2020 ONCA 313, recently noted that the police do no need to link the electronic devices to any specific target, but rather to the offences under investigation. A search warrant is an investigative tool that should be used to unearth as much evidence as constitutionally possible about the suspected offence, rather than just evidence that incriminated a particular target because that can lead to a prosecutorial “tunnel vision” (quoting the Supreme Court in CanadianOxy Chemicals Ltd. V. Canada (Attorney General) 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743 (S.C.C) at paras 15, 24.
[58] In the present case, similar to Brzezinski, I find that the hypothetical possibility that another person might use the target IP address is speculative and insufficient to detract from the reasonable grounds that existed within the confines of the ITO.
[59] Further, similar to Martin Gregory Smith, I find that regardless of the presence of secured or unsecured wireless networks, the police would still have had to either enter the residence to examine the computer, or to examine the network and computers on it remotely with the use of invasive forensic techniques. Both courses of action would require the police to obtain a warrant and the existence of wireless networks would not change the investigatory practices.
[60] I further find that the issues before the trial Judge in the instant case, had already been determined by a Justice of the Superior Court of Ontario and approved of and followed by a Supreme Court of Justice in British Columbia. It is my view that Justice Bryant’s decision in Brzezinski which in my view is determinative of the issue and binding upon her.
Determination of Issues
[62] For the reasons cited in both Brzezinski and Martin Gregory Smith, I find that there are errors in principle as reflected in the Reasons for Decision of the trial Judge that are integral to the trial Judge’s finding that a breach of s.8 occurred. I further find that the Reasons of Decision fail to consider binding precedent that determined an integral issue and that such failure constitutes an error in law.
[63] The appeal be and is hereby allowed and a new trial is ordered.
Justice S.J. Woodley
Date Released: July 28th, 2022