COURT FILE NO.: CRIMJ (P) 1357/21

DATE: 20221121

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent

Ms. M. Stevens, for the Crown / Respondent

• and -

COREY NAESS a.k.a. COREY RAY NAESS Applicant

Mr. I. Kasper, for the Accused / Applicant

HEARD: August 3, 2022 (by Zoom videoconference), and September 26, 2022 (in person)

REASONS FOR DECISION

STRIBOPOULOS J.

Introduction

[1] Mr. Naess faces charges of importing child pornography and possessing child pornography. The importation charge involves an allegation that Mr. Naess imported a child sex doll. The possession charge concerns images of child pornography that police found on a computer that appears to have belonged to Mr. Naess.

[2] As a case management judge, I heard an application by Mr. Naess claiming that the police breached his section 8 Charter right to be secure against unreasonable search or seizure in several ways during their investigation. As a result, under section 24(2), he seeks an order for the exclusion of evidence, including the child pornography found on the computer.

[3] The Crown opposes the application. Although the Crown concedes a single breach of Mr. Naess's section 8 Charter right occurred, it contests the other constitutional violations he alleges. Ultimately, the Crown submits that the breach it acknowledges does not justify excluding any of the evidence under section 24(2) of the Charter.

[4] These reasons shall proceed in three main parts. The first part will summarize the investigation that culminated in the police arresting and charging Mr. Naess. The second part addresses, in turn, each of the discrete section 8 Charter breaches Mr. Naess alleges and that the Crown contests. Finally, these reasons will consider whether to exclude any of the evidence under section 24(2) of the Charter.

I. The Police Investigation

[5] The facts on this application are, for the most part, not in dispute. A summary of the relevant events surrounding the police investigation culminating in Mr. Naess's arrest and the charges follow.

The CBSA seizes a package and contacts the police

[6] In early May 2019, officers with the Canada Border Services Agency ("CBSA") at the James C. Munro airport in Hamilton inspected a package containing a doll that mimicked the appearance of a toddler and seized it as suspected child pornography.

[7] The shipper was a company in China that had previously shipped six dolls to Canada that the CBSA had also seized as child pornography. The recipient listed on the package was "Cody Niece," with a company name of "Cozy Domain" and an address of "44 Merton Road, Brampton." The phone number listed for the recipient was "905-###-1664."

[8] As a result, the CBSA contacted officers with the Peel Regional Police Internet Child Exploitation ("ICE") Unit, who collected the doll and commenced an investigation.

The doll

[9] The shipper had sent the doll inside a brown cardboard box. Beyond the doll, the box contained a blanket, knitted bottom diaper, and cap, none of which were worn by the doll.

[10] The doll appeared to be silicone. It weighed 35 lbs and measured 2.2 feet in height. The manufacturer had made the doll appear female and mimic the appearance of a toddler. It had hair painted on its head. Although it did not have hip or breast development, it had budding breasts and nipples. Additionally, the vagina and labia were clearly defined and pink in colour. There were, however, no openings constructed into the doll.

Police records checks concerning the recipient's address

[11] As part of the ICE Unit's investigation, on May 3, 2019, Det. Cst. Williamson began querying police databases concerning 44 Merton Road, Brampton, the address listed for the recipient. He found two police occurrences involving that address.

[12] First, one occurrence from 2015 for public mischief and perjury listed Corey Naess as an "other" for this incident. It noted his address as "44 Merton Road (basement), Brampton," his date of birth, and his phone number as 289-###-1664. The last seven digits of that number matched those listed for the package's recipient. Only the area code was different – 289 instead of 905.

[13] Second, another occurrence from 2018. It referred to Corey Naess (with his date of birth) as the complainant in a landlord/tenant dispute at that address. It listed the same telephone number for him referenced in the 2015 occurrence. In addition, the occurrence referred to three other individuals as the "upstairs tenants" involved in the dispute and set out their names and dates of birth. It also noted that Mr. Naess had "a caution entry as a sex offender."

Police records checks concerning Corey Naess

[14] Det. Cst. Williamson then queried various police databases for "Corey Naess," with the date of birth recorded for him in the occurrences involving the Merton Road address. These revealed that Mr. Naess had prior involvement with the Peel Regional Police police and a criminal record with entries from 1982 to 2011.

[15] Amongst his many previous convictions, there were three for sexual assault. Beyond these entries, some of the underlying facts concerning Mr. Naess's prior involvement with the criminal justice system strongly suggested he had a sexual interest in children.

[16] For example, on August 6, 2001, the police arrested Mr. Naess for videotaping the genital areas of children playing at a splash pad. During a search incident to that arrest, police found children's bathing suits in his possession.

[17] Additionally, there were the facts underlying Mr. Naess's convictions for breaching a conditional sentence order and possessing a weapon. These offences occurred on November 25, 2001, when Mr. Naess was subject to a house arrest condition. That day, he was observed walking into a schoolyard in Mississauga for a couple of minutes. At the time of his arrest, police found he had a knife, baton, duct tape, bungee cord, Vaseline and pornographic magazines in his possession.

[18] Finally, while under police surveillance on April 17, 2004, Mr. Naess was observed attending a school in Mississauga and masturbating in a wooded area a short distance from girls aged 10 to 12. As a result, he was arrested and convicted of committing an indecent act.

[19] There were other occurrences involving Mr. Naess that referenced the Merton Road address.

[20] For example, an occurrence from September 19, 2016, listed Mr. Naess as the victim of an assault involving his neighbour. His address was recorded as "44 Merton Road Brampton," with the same phone number noted above.

[21] However, another occurrence from March 6, 2017, listed him as the complainant concerning the theft of an electric bicycle and noted his address as "44 Merton Road (basement) Brampton." In addition, it included his phone number, again, the same number referenced for him above.

[22] There was a further occurrence from August 4, 2018, with Mr. Naess noted as the accused who was charged with operating a motor vehicle while disqualified and engaging in prohibited activity on the premises. Like virtually all the other occurrences, it listed his address as "44 Merton Road, (basement) Brampton ON," with the same phone number.

[23] Constable Losier, also with the ICE Unit, picked up the investigation on May 7, 2019. She conducted further records checks, which included querying the Ministry of Transportation's database for Corey Naess with his date of birth. This search showed that his license was suspended and expired. However, the last address for Mr. Naess, on file with the Ministry of Transportation in 2008, was on Shawnmarr Road in Mississauga.

Police records checks concerning the names on the package

[24] Constable Losier then conducted various searches for the names associated with the package. However, Internet searches, including of social media sites, did not return any results for "Cody Niece" or "Cozy Domain." Nor were there any Ministry of Transportation records for someone named "Cody Niece." Finally, Internet search results for the company in China that purportedly shipped the package revealed that it was a financial company that sold intelligence tools.

Police records checks concerning the other persons associated with the address

[25] Constable Losier also conducted various database queries for the other three residents of 44 Merton Road in Brampton, referred to in the 2018 occurrence involving a landlord and tenant dispute as the "upstairs tenants."

[26] None of the three had criminal records. However, one resident had an outstanding charge for possessing stolen property. Police records indicated he had lived at "44 Merton Road, upper floor" until May 3, 2019, when he changed addresses.

The home at 44 Merton Road in Brampton

[27] On May 7, 2019, two police officers with the ICE Unit attended 44 Merton Road, Brampton, to make observations of the residence from the street. The number "44" was clearly visible above the garage door.

[28] The officers observed a two-story semi-detached home with one unit on the top floor and another on the bottom (basement). The door to the upper floor unit faced west, whereas the basement unit's door faced south.

[29] The officers observed two vehicles parked in the driveway at that address. One of the vehicles did not have license plates on it, whereas the other did. Police determined that the vehicle with license plates was registered to yet another man (whose identity is irrelevant to this summary). Police checks revealed that that man did not have a criminal record. However, "44 Merton Road, Brampton" was listed as the address associated with his driver's license.

Discussion concerning conducting a controlled delivery

[30] At the preliminary inquiry, Det. Cst. Williamson testified that as the investigation remained ongoing, there were discussions amongst officers in the ICE Unit about carrying out a controlled delivery of the doll to see who would sign for the package at the address.

[31] Det. Cst. Williamson also testified that, on May 7, 2019, after he briefed Cst. Losier concerning specific investigative steps he had taken, it was his understanding that Cst. Losier would draft a warrant to seek authorization to conduct a controlled delivery of the doll at 44 Merton Road.

[32] However, for reasons that remain unexplained, Cst. Losier only drafted an application for a conventional search warrant.

The Information to Obtain a Search Warrant (ITO)

[33] On May 8, 2019, Cst. Losier applied for a warrant to search "44 Merton Road, Brampton, ON" for a list of things that could connect someone at that address to the doll and afford evidence of the offence of importing child pornography.

[34] That included seeking authority to search electronic devices found at the residence for any "receipts, bills or documents outlining the purchase of the child silicone doll," "screenshots or photos of the online order, reference number, tracking number, doll or website associated with the doll."

[35] Constable Losier set out her grounds for seeking a search warrant in the ITO. In doing so, she detailed what the police had learned during their investigation, providing a somewhat more detailed summary of the information set out above. However, the ITO did not mention that the police planned to carry out a controlled delivery of the doll before they executed the search warrant they were seeking.

The issuance of the search warrant and the Justice of the Peace's modification of the address

[36] Later that same day, Justice of the Peace D. Florence issued the search warrant. However, she did not sign off on the draft search warrant as submitted by the police. Although Cst. Losier had sought authority to search "44 Merton Road, Brampton, ON," immediately next to that typewritten address on the face of the search warrant, the Justice of the Peace printed the following: "BASEMENT APT ENTERED THROUGH SOUTH FACING Exterior Door." The search warrant authorized the police to enter and search the premises between 6:00 a.m. and 9:00 p.m. on May 9, 2019.

The controlled delivery

[37] On May 8, 2019, Det. Cst. Williamson prepared an Operational Plan to carry out a controlled delivery of the doll and then execute the search warrant at the address. The plan contemplated an undercover police officer, posing as a UPS driver, delivering the package to the address. If someone accepted delivery, other officers would immediately attend the residence to execute the search warrant once the undercover officer had left. An Inspector with the Peel Regional Police signed off on the Operational Plan on May 8, 2019.

[38] At 8:30 a.m. on May 9, 2019, Cst. Losier briefed the undercover officer who would pose as the UPS driver delivering the package. She instructed him to attend the residence that morning and knock at the front door. If no one answered, he was then to knock at the side (south-facing) door. Further, he was instructed not to leave the package if no one answered at either of the doors, and he was only to give it to "Cody Niece" or whoever identified themselves as that person. Finally, Cst. Losier showed the undercover officer a photograph of Mr. Naess.

[39] Then, at 9:00 a.m., Cst. Losier and Det. Cst. Williamson briefed the other officers who would be involved in executing the search warrant that day. They went over the Operational Plan with them and explained that Mr. Naess was their "person of interest" and they would either deliver the doll to him or no one. During the briefing, they were told that the search warrant was for "44 Merton Road, basement apartment, entered through the south-facing exterior door." Each of the police officers who participated in the briefing initialled each page of a copy of the search warrant to confirm they had read it.

[40] At 11:08 a.m., the undercover officer posing as the UPS driver approached the front door of 44 Merton Road with the box containing the doll and knocked. Mr. Naess answered. The undercover officer said he had a delivery for "Cody Niece," to which Mr. Naess responded, "Yeah, that's me." Next, Mr. Naess opened the front screen door and took some paperwork from the undercover officer to sign for the package. After doing so, he opened the screen door again, returned the paperwork, and took the box containing the doll from the undercover officer.

[41] While the delivery was unfolding, a second police officer, parked in a vehicle on the street, was taking photographs surreptitiously. The pictures capture Mr. Naess at the front door, opening it, then opening the screen door, signing for the package, and taking delivery of the box containing the doll. Throughout, Mr. Naess remains just inside the front door; he never steps outside. During his preliminary inquiry testimony, the officer with the camera acknowledged that he took these photographs for "evidence-gathering purposes."

The execution of the search warrant

[42] After completion of the controlled delivery, a radio communication alerted the other officers involved that day that Mr. Naess had accepted the delivery at the front door. With that, the police attended the home for the purpose of executing the search warrant.

[43] At 11:23 a.m., Det. Cst. Williamson attended the front door of the residence and knocked. A man (not Mr. Naess) answered. He told the man that police were there to execute a search warrant. As that was happening, Det. Cst. Williamson could see Mr. Naess inside the residence, opening a door that appeared to lead to the garage at the front of the house. At that point, Det. Cst. Williamson entered the home through the front door. He went to the interior door where he had just observed Mr. Naess and opened it. It was the door to the garage. Inside the garage, he found the package containing the doll that the police had delivered to Mr. Naess shortly before.

[44] Det. Cst. Williamson was followed into the residence through the front door by other police officers. Once inside, they fanned throughout the house and conducted a "safety search" of the entire residence. Beyond Mr. Naess, police discovered four or five other occupants, all on the upper floor.

[45] Inside the home, police discovered two routes for accessing the basement. The most immediate point of access was the side door on the south side of the house. Alternatively, one could access the basement after entering through the front door, passing through a common area, and going down the stairwell.

[46] After the police secured the house and before the search commenced, a police officer entered and took photographs. That included photographing the box containing the doll on the garage floor, the stairwell leading to the basement, and each room in the basement.

[47] Once the house was secure and the photographs completed, the police interviewed the other residents while upstairs. The police also seized the doll from the garage. Additionally, two police officers entered the house, again through the front door, and went to the basement to execute the search warrant. In the basement, they seized various items, including a desktop computer, an external hard drive, a thumb drive, and a cellphone.

[48] A short time later, the police officers who seized the computer began examining it back at the station. While doing so, a police officer discovered an image on the computer that he suspected to be child pornography. At that point, the police stopped searching the electronic devices. They notified Det. Cst. Williamson, who was still at the residence, about what they had found, and he arrested Mr. Naess for possessing child pornography.

A further search warrant

[49] On June 17, 2019, the police obtained a further search warrant that authorized them to search all of the electronic devices they seized from the basement apartment for child pornography.

[50] Ultimately, acting under the authority of that second search warrant, the police located 630 unique images of child pornography on the desktop computer that they seized from the basement of the home. In addition, they found evidence suggesting that the computer belonged to Mr. Naess and that he had conducted Internet browser searches for “lifelike baby dolls,” “silicone dolls,” and “silicone dolls for sex.”

[51] Finally, there was evidence on the computer that Mr. Naess had visited a specific website that sold dolls. Det. Cst. Williamson visited that website. It offered for sale dolls similar to the one police had seized during this investigation and described them as “sex dolls.”

II. The Section 8 Charter Claims

[52] As noted, Mr. Naess advances several different claims concerning how he says the actions of the police during this investigation violated his section 8 Charter right to be secure against unreasonable search or seizure.

The Positions of the Parties

[53] The parties agree that Mr. Naess owns the home at 44 Merton Road, Brampton. Additionally, the uncontested evidence is that he resided in the basement while renting to tenants who lived on the upper floor and that some portions of the home, such as the front entryway on the main floor, were shared amongst the residents.

[54] Accordingly, on this application, there is no dispute between the parties that, under section 8 of the Charter, Mr. Naess had a constitutionally protected reasonable expectation of privacy not only in his basement apartment but also in the common areas of the home he shared with his tenants: see R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at paras. 31-58; R. v. Brewster, 2019 ONCA 942, 383 C.C.C. (3d) 260, at paras. 81-87.

[55] As a result, the parties' competing positions on the application focused on whether the police complied with the reasonableness requirements of section 8 of the Charter during the course of their investigation. For a search or seizure to be reasonable: (i) it must be authorized by law; (ii) the law authorizing it must be reasonable; and (iii) it must be carried out in a reasonable manner: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at para. 23; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 37.

[56] In this case, it was the first requirement that supplied the focus of the parties' submissions concerning the actions of the police. In short, the requirement that any intrusions upon Mr. Naess's reasonable privacy expectations had to be authorized by law to comply with section 8 of the Charter.

[57] Mr. Naess claims that the police violated his section 8 Charter right to be secure against unreasonable search or seizure in several ways. First, he attacks the search warrant on both facial and subfacial grounds. Mr. Naess points to these alleged defects in submitting that the search warrant was invalid and the search carried out under its purported authority was unlawful and, therefore, unconstitutional.

[58] Second, Mr. Naess claims that police violated his section 8 right by carrying out the controlled delivery without prior judicial authorization, thereby unlawfully and unconstitutionally intruding on the reasonable expectation of privacy he enjoyed at his home.

[59] Finally, he claims the police violated his section 8 Charter right by exceeding the lawful authority conferred by the search warrant when they entered the residence through the front door, conducted a “safety search” that included the main floor and searched the garage.

[60] The Crown denies most of the section 8 Charter breaches that Mr. Naess alleges on this application. First, the Crown submits that the search warrant did not suffer from the facial or subfacial defects Mr. Naess claimed and was validly issued.

[61] Second, it contends that the controlled delivery was lawful because it was authorized by the implied license homeowners extend to the public, including the police, to approach a home, knock at the door, and communicate with its occupants. Therefore, it did not occasion an unlawful and, by implication, an unconstitutional intrusion on Mr. Naess's constitutionally protected reasonable privacy expectations in his home.

[62] Further, the Crown contends that the search warrant only confined where the police could search (the basement), not how they were to gain entry to that location. Accordingly, the police did not exceed the lawful authority granted by the search warrant when they entered the residence through its front door on the upper floor.

[63] However, the Crown concedes a single breach of Mr. Naess's section 8 Charter right that he alleges. The Crown acknowledges that the search warrant did not authorize the police to enter and search the garage. As a result, the Crown agrees that the police entry into the garage was unlawful and violated Mr. Naess's section 8 Charter right to be secure against unreasonable search or seizure in that particular location.

[64] With that brief introduction to the issues raised by the application and the parties' mostly competing positions, these reasons move to consider, in turn, each of Mr. Naess's contested section 8 Charter claims.

Was the warrant to search the residence, including the electronic devices located therein for evidence relating to the purchase of the doll, validly issued?

[65] Mr. Naess claims that the ITO failed to disclose reasonable and probable grounds that the doll constituted "child pornography" as defined in section 163.1(1) of the Criminal Code, R.S.C., 1985, c. C-46, and, by implication, that someone had committed the offence of importing child pornography. Further, he claims Cst. Losier misled the issuing justice by indicating the doll was purchased online when she had no basis for making that assertion. And lastly, he claims the ITO failed to establish reasonable grounds to believe that the police would find evidence relating to the importation of the doll on electronic devices they located at the premises.

[66] Given these alleged deficiencies, Mr. Naess submits the Justice of the Peace should not have issued the search warrant, and this court should declare the warrant invalid. And if Cst. Losier deliberately misled the issuing justice; he says that alone justifies the court setting aside the search warrant. In either or both scenarios, the search of Mr. Naess's residence would have been unlawful and violated his section 8 Charter right.

The governing principles

[67] A search or seizure conducted with prior judicial authorization is subject to a presumption of validity. On review, the applicant bears the burden of rebutting that presumption and establishing that there has been non-compliance with the law's requirements: see R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, at para. 19; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83; R. v. Arsenault, 2009 NBCA 29, at para. 5.

[68] In reviewing the adequacy of either the affidavit to obtain an authorization to intercept private communications or the information to obtain a search warrant, the role of the judge conducting the review is limited. It is not the function of the reviewing judge to rehear the original application. As the Supreme Court of Canada explained in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at para. 68:

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

[Underlining added]

[69] Over the intervening years, the Supreme Court has reaffirmed the approach it established in Garofoli: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Although Garofoli dealt with an authorization to intercept private communications, the same approach applies to challenges aimed at conventional search warrants: see R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at paras. 49-51; R. v. Wiley, 1993 69 (SCC), [1993] 3 S.C.R. 263, at paras. 19-20; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16.

[70] The reviewing judge's circumscribed role does not mean the review is based only on the information before the issuing justice. Instead, it takes place "on the record which was before the authorizing judge as amplified on the review": Garofoli, at para. 68 (underlining added). Amplification ensures that the review is undertaken in context: Araujo, at paras. 53-54. That said, amplification is not without its limits. As the Supreme Court of Canada cautioned in Araujo, at para. 59:

The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests ... amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds ... but had, in good faith, made some minor, technical error in the drafting of their affidavit material.

Amplification evidence, as Morelli stressed at para. 42, "is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds."

[71] Instead, amplification aims to ensure that the review is based only on what should have been before the issuing justice. If the amplified record reveals that false, misleading or unconstitutionally obtained information found its way into the ITO, the reviewing court must excise such information: see Araujo, at paras. 54-58; Grant, at para 50.; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at paras. 33-38; R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, at para. 26. At the same time, if the police made a good faith mistake resulting in some "minor, technical error in the drafting" of the ITO, it should be corrected: see Araujo, at paras. 57-59; Morelli, at para. 43.

[72] Once amplification is complete, with improperly included information removed and corrections for minor, technical drafting errors, the question for the reviewing judge remains relatively narrow. That being, "whether there was reliable evidence that might 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.": Araujo, at para. 54 (underlining in original); see also Morelli, at para. 40.

[73] The reviewing court's deferential role is not without limits. The Court of Appeal has repeatedly recognized that a judge conducting a review has a residual discretion to set aside an authorization or warrant that might otherwise survive amplification. The reviewing judge may do so if satisfied that the police engaged in conduct meant to subvert the integrity of the prior authorization process. For example, a court might exercise that discretion if it finds the police deliberately failed to disclose material information, deceived the issuing justice by making intentionally false or misleading representations, or otherwise acted in bad faith. Conduct of that nature could convince the reviewing judge that it is necessary to set aside the authorization or warrant to protect the integrity of the prior authorization process: see R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused [2017] S.C.C.A. No. 81, at paras. 66-70; R. v. Saikaley, 2017 ONCA 374, 348 C.C.C. (3d) 290, leave to appeal refused [2017] S.C.C.A. No. 284, at paras. 74-75; R. v. Strauss, 2017 ONCA 628, 353 C.C.C. (3d) 304, at para. 25; R. v. Dosanjh, 2022 ONCA 689, at para. 162; R. v. Vivar, 2009 ONCA 433, at para. 2; R. v. Kesselring (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.), at para. 31.

[74] Mindful of these principles, these reasons next turn to consider Mr. Naess's claims attacking the issuance of the search warrant.

The principles applied to the facial validity claim

[75] The Criminal Code defines "child pornography" as including a "visual representation ... the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years": see Criminal Code, s. 163.1(1)(a)(ii) (underlining added).

[76] As explained by the Supreme Court, an objective assessment is required when considering the "dominant characteristic" and "sexual purpose" requirements: see R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 50-51. As Chief Justice McLachlin observed for the majority in Sharpe, at para. 50:

The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region. The same applies to the phrase "for a sexual purpose", which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

[77] Given the circumscribed role of a judge tasked with reviewing whether a search warrant could issue, it is not my function to finally adjudicate whether the doll constituted "child pornography." Instead, my task is more limited, to determine whether the information before the issuing Justice of the Peace provided a basis from which she could reasonably conclude it did.

[78] In that regard, the Justice of the Peace had the following relevant information before her in the ITO:

• The doll was made of silicone and lifelike, mimicking the appearance of a toddler, with hair painted on its head, weighing 35 lbs, and measuring 2.2 feet in height.

• It arrived nude in the box, accompanied by a diaper, knitted cap and blanket.

• The doll did not have hip or breast development. However, it had budding breasts and nipples and a clearly defined vagina and labia painted pink.

• The doll did not have any openings.

[79] Considering all these circumstances cumulatively and viewing them objectively, I am satisfied that the ITO provided a reasonable basis from which the Justice of the Peace could conclude that there were reasonable and probable grounds to believe that the doll constituted "child pornography." In particular, the doll's lifelike appearance, combined with its mostly anatomically correct sexual organs, could reasonably be perceived as intended to cause sexual stimulation to those who harbour a sexual interest in children. In short, all the circumstances provided a more than sufficient basis from which the Justice of the Peace could conclude that this was not a child's toy; but a sex doll of a child and, therefore, "child pornography."

[80] Accordingly, Mr. Naess has not established that the ITO failed to furnish a basis by which the Justice of the Peace could conclude that there were reasonable and probable grounds to believe that someone had committed the offence of importing child pornography. As a result, I reject Mr. Naess's challenge to the facial validity of the search warrant.

The principles applied to the subfacial validity claim

[81] Recall that the search warrant authorized police to search electronic devices located at the premises for "receipts, bills or documents outlining the purchase of the child silicone doll" and "screenshots or photos of the online order, reference number, tracking number, doll or website associated with the doll."

[82] In seeking authority to search electronic devices located at the residence for these items, Cst. Losier expressed her belief, in paragraph 18 of the ITO, that police would likely find these because "The doll was ordered online through an unknown website and exporter (sender) from China."

[83] Mr. Naess claims that Cst. Losier misled the issuing justice because she had no basis for believing that the purchase of the doll occurred through the Internet. In response to that claim, the Crown filed an affidavit from Cst. Losier as part of the amplification process. In that affidavit, she deposed that:

I know from my experience in the Internet Child Exploitation unit prior to writing the Search Warrant, that child sex dolls are only able to be purchased on the Internet. A person cannot attend a store in Canada and purchase a child sex doll as it is Child Pornography.

[84] With the Crown’s consent, defence counsel cross-examined Cst. Losier during the hearing concerning these aspects of the ITO and her affidavit. She testified that her knowledge of child sex dolls came from a single investigation conducted by two other officers in the ICE Unit in 2016. Cst. Losier testified that she took an interest in that investigation and spoke with the officers involved, which is how she knew child sex dolls are manufactured overseas and purchased over the Internet. During cross-examination, when challenged about the basis for her belief that someone could not purchase such a doll domestically, she testified that one could not walk into a store in Canada and buy a child sex doll. Pressed on why she held that belief, she referenced "common sense."

[85] Ultimately, I accept Cst. Losier's evidence. Although it might have been preferable for her to make explicit in the ITO why she believed whoever ordered the doll from China would have done so using the Internet, her failure to do so is far from fatal to the validity of the search warrant. Even without such an explanation, it would have been readily apparent to the issuing justice that whoever ordered the child sex doll from China, in this day and age, most probably did so using the Internet. As the Supreme Court has noted, "authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious.": Vu, at para. 16 (underlining added). Further, Cst. Losier's failure to state that which was self-evident can hardly be said to reflect a deliberate effort to mislead the Justice of the Peace.

[86] Nor am I of the view that Cst. Losier's affidavit, filed as part of the amplification process, was misleading. That her "experience" involved a single prior investigation in no way detracts from the knowledge she acquired from it. Someone can learn a great deal from a single experience. Accordingly, I cannot accede to the submission that Cst. Losier's affidavit filed at the hearing as part of the amplification process or her testimony before this court was in any way misleading.

[87] As a result, I reject Mr. Naess's claim that the ITO failed to disclose a basis from which the issuing Justice of the Peace could conclude that police were likely to find evidence concerning the purchase of the doll on electronic devices they located in Mr. Naess's basement apartment. Further, the record provides no basis for this court to exercise its residual discretion to set aside the search warrant.

[88] For these reasons, Mr. Naess has failed to demonstrate that the search warrant was invalidly issued or that anything about the circumstances justifies setting it aside.

Did the controlled delivery intrude upon Mr. Naess's reasonable expectation of privacy and violate his section 8 Charter right?

[89] Over 25 years ago, a majority of the Supreme Court of Canada recognized in Evans that the common law, absent a clear expression of intent by the occupier to the contrary, deems the occupier of a dwelling to extend an implied invitation to all members of the public, including the police, to approach the home and knock at the door to facilitate communication with the occupant: at paras. 40-42. Legislation in Ontario essentially codifies the implied invitation to approach and knock: see Trespass to Property Act, R.S.O. 1990, c. T.21, s. 3(2).

[90] In Evans, the police received an anonymous tip that marijuana was being grown inside a house. To substantiate it, they approached the home and knocked at the door in an attempt to smell marijuana, which they did when Mr. Evans opened the door. After that, they immediately arrested Mr. Evans and a second occupant, entered the residence to secure it, and found a room in the basement where marijuana plants were being grown. In concluding that the actions of the police exceeded the implied authority of the invitation to approach a dwelling and knock, writing for the majority, Sopinka J. explained, at para. 16:

In the present case, I am of the view that the actions of the police went beyond the forms of conduct permitted by the implied licence to knock. Although I accept that one objective of the police in approaching the Evans' door was to communicate with the occupants of the dwelling in accordance with the implied licence to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans' door was to attempt to "get a whif [sic] or a smell" of marijuana. As a result, the police approached the Evans' home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.

[Underlining added]

[91] The majority held that by going to the door to secure evidence against an occupant, the police exceeded the authority conferred by the implied license to approach and knock and unlawfully intruded on Mr. Evans's reasonable expectation of privacy at his residence. Because the police lacked lawful authority for this intrusion, they violated Mr. Evans's section 8 Charter right to be secure against unreasonable search or seizure: at paras. 20-21.

[92] The Crown submits that the circumstances, in this case, are distinguishable from what transpired in Evans. Ms. Stevens points out that Evans, and subsequent decisions, acknowledge that the implied invitation to approach, knock, and communicate with an occupant applies to everyone, including the police: see Evans, at para. 13; R. v. Atkinson, 2012 ONCA 380, 110 O.R. (3d) 721, at paras. 45-46. In particular, she emphasizes the observation made by Hill J. in R. v. Van Wyk (1999), 6 M.V.R. (4th) 248 (Ont. S.C.J.), affirmed [2002] O.J. No. 3144 (C.A.), that: "The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s. 8 of the Charter": at para. 33; see also R. v. Desrochers, 2008 ONCA 255, 58 M.V.R. (5th) 16; R. v. LeClaire, 2005 NSCA 165, 208 C.C.C. (3d) 559, leave to appeal refused [2006] S.C.C.A. No. 63, at para. 15.

[93] In this case, Ms. Stevens argues that the controlled delivery police undertook came squarely within the implied invitation to approach and knock to communicate with an occupant. The fact that the communication surrounding the delivery could yield evidence against an occupant, applying the logic of Van Wyk and the cases that have followed it, Ms. Stevens submits, does not take the interaction beyond the scope of the implied invitation. For their attendance at the property to do so, she argues, once at the door, police would need to do something that intrudes on an occupant's reasonable privacy expectation inside their home. By way of example, she points to the police smelling for marihuana in Evans, examining an item inside an enclosed mud room in Atkinson, or otherwise exploiting the opportunity to learn something about the activities taking place inside the home.

[94] The Crown argues that the controlled delivery undertaken by police in this case, involved nothing more than communicating with an occupant at the door of the residence and fell squarely within the implied authority to approach and knock. Therefore, the Crown submits that the controlled delivery did not intrude on Mr. Naess's reasonable expectation of privacy in his home.

[95] After considering all the circumstances, I do not share the Crown's characterization that this is a case of a police officer attending a residence to communicate with an occupant and that the undercover police officer's actions came within the implied invitation to approach and knock. By its very nature, a controlled delivery involves much more than a readily identifiable police officer attending a residence merely to communicate with an occupant, including by asking investigative questions. Although those were the circumstances in Van Wyk, a controlled delivery involves something very different and far more invasive.

[96] The entire point of a controlled delivery is to obtain incriminating evidence against an occupant. Through the ruse of an undercover police officer, posing as a courier or postal worker, delivering a package containing contraband, the police aim to identify the occupant who will accept delivery. In cases where the Crown must prove the identity of the person responsible for importing contraband or conspiring to import or possess it, that evidence can often be crucial to the prosecution's case. No doubt, that is precisely why the police, in this case, surreptitiously positioned an officer on the street in front of Mr. Naess's residence to take photographs as the controlled delivery took place. In other words, the sole purpose for the police to carry out the controlled delivery was to acquire evidence that would implicate Mr. Naess in the importation of the doll.

[97] As such, when the undercover police officer walked onto Mr. Naess's property, approached and knocked at the front door to carry out the subterfuge of having him accept delivery of the package as another police officer took photographs, the police conduct inescapably fell within the Evans's holding. As the majority in Evans noted, "occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them.": at para. 16. As a result, it is impossible to characterize the controlled delivery that occurred in this case as anything other than "agents of the state approach[ing] a dwelling with the intention of gathering evidence against the occupant": Evans, at para. 16 (underlining added).

[98] Accordingly, it is not at all surprising that the Saskatchewan Court of Appeal and a judge of this court have previously held that controlled deliveries exceed the scope of the implied invitation, intrude on an occupant's reasonable expectation of privacy, and engage the reasonableness requirements of section 8 of the Charter: see R. v. Moyles, 2019 SKCA 72, [2019] 12 W.W.R. 416, at paras. 49-54; R. v. Chernysh, 2016 ONSC 6716, at paras. 37-38. Tellingly, the Crown could not point to a single case that has come to the opposite conclusion where police used the controlled-delivery investigative technique to target the occupant of a residence.

[99] By carrying out a controlled delivery of the package containing the doll, the police exceeded the bounds of the implied invitation to knock. In addition, although the police contemplated seeking judicial authorization to carry out the controlled delivery, for reasons that went unexplained, they failed to apply for a general warrant under section 487.01 of the Criminal Code that could have cloaked them with the legal authority to do so. As a result, the undercover police officer who carried out the controlled delivery became a trespasser when he walked onto the property and remained one when he approached and knocked at the door.

[100] Consequently, the intrusion on the reasonable expectation of privacy Mr. Naess enjoyed at his home occasioned by the controlled delivery lacked legal authority and violated his section 8 Charter right to be secure against unreasonable search or seizure.

Did the police violate section 8 of the Charter by exceeding the authority conferred by the search warrant?

[101] Recall that the police sought a warrant to search "44 Merton Road, Brampton, ON." However, the Justice of the Peace modified the address on the face of the draft warrant that Cst. Losier submitted for approval. Immediately next to the typewritten address on the search warrant, "44 Merton Road, Brampton, ON," she printed the following: "BASEMENT APT ENTERED THROUGH SOUTH FACING Exterior Door."

[102] The reason why the Justice of the Peace modified the address is readily apparent. First, the ITO established that Mr. Naess was the occupant most likely responsible for importing the doll. Further, almost all the recent records referenced in the ITO indicated that Mr. Naess lived in the basement at 44 Merton Road and that other people lived on the main floor, the "upstairs tenants." Finally, the ITO detailed the observations of two police officers who had attended the address. They described one unit on the upper floor and another in the basement, with the door to the upper floor unit facing west and the door to the basement unit facing south.

[103] Given all this, undoubtedly mindful of the upstairs tenants' privacy interests, people who were most likely innocent of any wrongdoing, the Justice of the Peace understandably modified the address on the draft search warrant. She only authorized the police to search the basement unit. And, no doubt, because the ITO indicated that it had a separate entrance, the Justice of the Peace was careful to describe its exterior south-facing door.

[104] The Crown submits that although the warrant authorized police to search the basement, it was within their discretion to decide how to gain access to that unit. On this view, the reference to the south-facing exterior door was only meant to describe the apartment and not direct how police were to gain entry to it. With respect, that submission is not persuasive.

[105] The Court of Appeal has recognized that: "An adequate description of the place to be searched is a fundamental component of a search warrant.": R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 48. That requirement is especially critical when the police seek authority to search a unit in a house or building containing multiple residences. As the Court of Appeal observed in Ting, at para. 51:

With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling.

[106] Although the ITO did just that, the address specified in the draft search warrant did not. Accordingly, the Justice of the Peace, acting on what the ITO revealed and a lack of the required specificity in the address listed in the draft warrant, modified the address to make crystal clear which unit the police were authorized to search and how they were to access it. By doing so, the Justice of the Peace, acting as required in her judicial role, rightly endeavoured to safeguard the privacy rights of the upstairs tenants.

[107] In these circumstances, the police lacked any discretion to choose a different means of entry. To conclude otherwise would needlessly imperil the privacy rights of innocent persons living in houses or buildings containing more than one residential unit. Therefore, if a search warrant specifies that the police are authorized to search a particular unit within a house or building containing more than one unit and describes the door by which they are to gain access, the police cannot treat such a judicial direction merely as a suggestion. Instead, when a search warrant does that, it constrains the legal authority of the police. If they fail to respect such limitations, they act unlawfully. That is in keeping with the overarching obligation on the police, imposed by statute, the common law, and the Charter, to "exercise restraint when executing search warrants": R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 20.

[108] In retrospect, as the police discovered after entering, we now know that inside this particular house, neither a closed nor locked door separated the upstairs and downstairs units. But hindsight can play no role in assessing the reasonableness of the police's actions: see Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at para. 27; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 100, Binnie J., concurring.

[109] To be sure, when police enter an apartment in a house or building with more than one unit only to discover that what appeared like separate units from the outside are not, it may prove reasonably necessary for them to take further steps in the interests of police or public safety. Depending on the circumstances, a safety search of those areas of the house or building that are readily accessible to the unit that police are authorized to search might be justified: see R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41.

[110] And should the police wish to search those areas for contraband or evidence, they would undoubtedly need to apply for a search warrant and subject their grounds to prior judicial scrutiny unless exigent circumstances make it impracticable to obtain one: see Criminal Code, ss. 487(1) and 487.11. Absent exigent circumstances, the police might choose to rely on section 487.1 of the Criminal Code, which permits them to seek search warrants by telephone. However, these observations are purely obiter because none of that happened here.

[111] Instead, in direct contravention of what the search warrant authorized, the police entered the house through its front door, conducted a “safety search” of the entire residence, and searched the garage. By doing so, they unlawfully intruded on Mr. Naess’s reasonable expectation of privacy in the home’s common areas (as well as the privacy rights of the upstairs tenants). As a result, the police violated Mr. Naess’s section 8 Charter right to be secure against unreasonable search or seizure.

III. The Exclusion of Evidence

[112] The police breached Mr. Naess's section 8 Charter right to be secure against unreasonable search or seizure in three distinct ways, including: (1) by carrying out a controlled delivery without prior judicial authorization; (2) by entering the house through the front door, when the warrant only authorized them to do so through the south-facing exterior door, and conducting a “safety search” of the entire house; and (3) as, the Crown concedes, by entering and searching the garage without legal authority.

[113] To remedy these constitutional violations, Mr. Naess seeks an order excluding most of the evidence against him, which includes: evidence that he accepted and signed for the package containing the doll and the photographs of him doing so; evidence that police located the box containing the doll in the garage of his home; and Mr. Naess's statements at the time of and after the search warrant's execution. Additionally, Mr. Naess seeks to exclude all the evidence police acquired by searching the house, for example, their observations, the photographs, and the items seized. This includes the computer that police later found contained 630 images of unique child pornography and evidence concerning its use to visit a website where one can purchase the same doll.

[114] The starting point for determining whether to exclude evidence under section 24(2) is to decide whether it was "obtained in a manner" that violated the claimant's Charter rights: see R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 78 (concisely summarizing the governing principles). That requires consideration of "the entire chain of events" involving the Charter violation and discovery of the evidence: R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at para. 55. Evidence can qualify if a breach and the impugned evidence "form part of the same transaction or course of conduct": R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38. The connection between the violation and the evidence may be "temporal, contextual, causal or a combination of the three": R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, quoting R. v. Plaha (2004), 2004 21043 (ON CA), 189 O.A.C. 376 (C.A.), at para. 45. As a result, although a causal connection will suffice, it is unnecessary: see Strachan, at paras. 51-56; Mack, at para. 38; Wittwer, at para. 21. Finally, the connection between the breach and the evidence can become too remote or tenuous such that it would not be fair to characterize the evidence as having been "obtained in a manner" that violated the Charter: see, e.g. R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463.

[115] In light of these principles and all the circumstances of this case, Mr. Naess has established the required connection between the section 8 Charter breaches and the evidence he seeks to have excluded. With some of the evidence, the link is causal. Additionally, there are strong temporal and contextual connections between all the Charter breaches and the evidence.

[116] The breach involving the controlled delivery had a direct causal connection to the police obtaining the evidence concerning Mr. Naess accepting delivery of the doll. Similarly, the breach occasioned by the garage search led directly to the police locating the box containing the doll and photographing it in that location. Moreover, Mr. Naess's statements to the police occurred during that same timeframe. Further, the police searched the basement and seized the computer shortly after they breached Mr. Naess's section 8 Charter right. That seizure occurred after police, all without judicial authorization, entered the residence through its front door, conducted a "safety search" of the entire home, and searched the garage.

[117] Although the police ultimately obtained a second warrant to search the computer for child pornography, that does not render the connection between the Charter breaches and the evidence located on the computer seized by police too remote or tenuous so as to sever the relationship. That is because all the violations and the acquisition of the evidence formed part of the very same transaction – the search of Mr. Naess's home on May 9, 2019.

[118] Therefore, the impugned evidence was obtained in a manner that violated Mr. Naess's section 8 Charter right to be secure against unreasonable search or seizure and is eligible to be considered for exclusion under section 24(2) of the Charter.

[119] The decision whether to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires the court to consider "all the circumstances" of the case. To do so, the court must assess and balance the effect of admitting the evidence on the long-term repute of the administration of justice, having regard to the three lines of inquiry recognized by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71, 85-86 [Grant 2009].

The seriousness of the Charter-infringing state conduct

[120] The first line of inquiry requires the court to assess the state conduct that led to a Charter violation and situate it along a "spectrum" or "scale of culpability": see Grant 2009, at para. 74; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 143; Tim, at para. 82. The Supreme Court of Canada provided a helpful summary of the considerations that should inform that assessment in Tim, at para. 82:

At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern.

[121] When assessed in light of these considerations, the Charter breaches, in this case, deserve placement at the more blameworthy end of the scale.

[122] To be sure, the evidence falls short of establishing that police set out with the intention of violating Mr. Naess's Charter rights. Instead, possibly due to inadequate legal training or confusion concerning the implications of the holding in Evans, despite considering seeking judicial authorization for the controlled delivery, for some unexplained reason, the police decided against it. And when they went ahead with it, they did so at the residence's front door because the shipping label did not address the package to the basement apartment.

[123] After that, given that Mr. Naess answered the front door to take delivery of the doll, Det. Cst. Williamson decided to execute the search warrant at that door to "follow the evidence." He offered that same justification for entering and searching the garage. In doing so, he and his colleagues entirely disregarded the search warrant's clear direction concerning how they were to gain entry to the residence and the limitations it imposed on where they were permitted to search. By deciding to enter through the front door, conducting a “safety search” of the entire residence and then searching inside the garage, the police compounded their initial negligent Charter breach involving the controlled delivery with what I can only describe as deliberate breaches.

[124] Ultimately, the police favoured doing what they concluded was more sensible rather than respecting the clear limits on their authority found in the search warrant. That counsels strongly in favour of exclusion. As the Supreme Court explained in Grant 2009, the more "severe or deliberate" the police conduct that resulted in a Charter violation, "the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law": at para. 72.

[125] Further, even assuming, for the sake of this analysis, that Det. Cst. Williamson honestly believed that he could "follow the evidence" despite what the search warrant authorized; this would not significantly mitigate the seriousness of the resulting breaches. The Supreme Court of Canada observed in Grant 2009, at para. 75, that "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith." More recently, it instructed in Le that "the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards”: at para. 143.

[126] For these reasons, in all the circumstances, the section 8 Charter breaches fall at the more blameworthy end of the culpability spectrum. That conclusion weighs heavily, on its own, in favour of excluding the evidence.

The impact of the breaches on Mr. Naess's Charter-protected interests

[127] Under this line of inquiry, the court must evaluate the extent to which the Charter breaches "actually undermined the interests protected by the right infringed": Grant 2009, at para. 76.

[128] In undertaking that assessment, the court must "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests": Grant 2009, at para. 77. It must situate the impacts along a spectrum, which may vary from "fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed": Tim, at para. 90; see also Grant 2009, at para. 76.

[129] The more impactful the breach is on the constitutionally protected interest, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant 2009, at para. 76.

[130] The section 8 Charter breaches implicated Mr. Naess's reasonable expectation of privacy in his residence and computer. Justice Fish's observation, on behalf of a majority of the Supreme Court, deserves mention here, that "it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer": Morelli, at para. 105; see also Paterson, at para. 46.

[131] Nevertheless, some of the circumstances in this case significantly lessen the impact of the breaches.

[132] First, the police had a warrant that authorized them to search the basement apartment and the computer. As a result, it does not involve impermissible speculation to infer that the police still would have discovered the child pornography and evidence linking Mr. Naess to the doll had they respected the limitations on their authority prescribed by the search warrant. That conclusion undoubtedly lessens the impact of the violations on Mr. Naess's constitutionally protected reasonable expectations of privacy: see Grant 2009, at para. 122; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 70, 72-75; Nolet, at para. 54.

[133] Second, had the police subjected their grounds for wanting to carry out the controlled delivery or search the garage to judicial scrutiny, given the information they possessed, they would have undoubtedly received judicial approval for both intrusions. That finding unquestionably lessens the impact of these breaches on Mr. Naess's reasonable expectation of privacy.

[134] Finally, the police intrusion into the home's common areas was somewhat less impactful because Mr. Naess had a reduced expectation of privacy in the areas of his house that he shared with his tenants.

[135] As a result, the breaches of Mr. Naess's section 8 Charter right had, at most, only a negligible impact on his reasonable expectation of privacy. That conclusion weighs in favour of ruling the evidence acquired admissible.

Society's interest in the adjudication of the case on the merits

[136] Under the third and final line of inquiry, the court must consider society's interest in adjudicating this case on its merits. That requires the court to assess whether it would better serve “the truth-seeking function of the criminal trial process” to admit or exclude the evidence: Grant 2009, at para. 79.

[137] The reliability of the impugned evidence, as well as its importance to the prosecution’s case are important factors to be considered at this stage of the analysis: Grant 2009, at paras. 81, 83. Evidence concerning the controlled delivery, the evidence found on Mr. Naess's computer, including the child pornography, and the use of the computer to visit a website that offered the same doll for sale and described it as a sex doll are all reliable evidence. And, to be sure, excluding all that evidence would undoubtedly deal a near-fatal blow to the prosecution's case against Mr. Naess.

[138] Under the final line of inquiry, these considerations weigh heavily in favour of admitting the evidence.

The final balancing

[139] After considering the three lines of inquiry identified in Grant 2009, which encapsulate "all the circumstances" of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: Grant 2009, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to "mathematical precision": Grant 2009, at para. 140.

[140] In this case, the gravity of the state misconduct occasioning the Charter breaches, especially the decision by police to disregard the clear limits on their authority under the search warrant, strongly favours exclusion. In contrast, the second and the third lines of inquiry point toward admitting the evidence.

[141] However, the first two lines of inquiry need not both favour exclusion for a court to conclude that the admission of the evidence would bring the administration of justice into disrepute. As a majority of the Supreme Court of Canada observed in Le, "It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion": at para. 141.

[142] As a result, as the majority further noted in Le, “it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute”: at para. 141 (emphasis in original).

[143] After carefully considering all the circumstances of this particular case, I am satisfied that the gravity of the section 8 Charter breaches, especially the decision by police to completely ignore the express limits on their authority under the search warrant, requires an order excluding the impugned evidence.

[144] A warrant that authorizes the search of a home confers extraordinary authority on the police. It empowers the police to do what would otherwise constitute trespass. And it necessarily occasions a significant invasion of a resident's cherished expectation of privacy in their home.

[145] Therefore, the police must follow a search warrant's terms fastidiously. When police deliberately disregard the limitations on their authority prescribed in a search warrant, as they did here, their conduct represents a profoundly serious breach of the section 8 Charter rights of those affected. That is the very sort of police misconduct from which courts must disassociate themselves, even in cases where the second and third lines of inquiry under Grant 2009 might otherwise favour admission.

[146] That is especially so in a case like this, where the potential impact of a Charter breach on the rights of entirely innocent persons who are not before the court is not just theoretical. In Grant 2009, the Supreme Court of Canada instructed that courts must remember “that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge”: at para. 75. In contrast, in this case, the decision of the police to disregard the limits imposed by the search warrant occasioned a serious violation of the privacy rights of the upstairs tenants who shared Mr. Naess's home – people who the evidence suggests had nothing at all to do with the criminal wrongdoing police were investigating.

[147] In making that observation, I do not mean to deviate from the jurisprudence in Ontario holding that a claimant cannot rely on the violation of the Charter rights of third parties as an aggravating factor when seeking to exclude evidence under section 24(2): see R. v. Merritt, 2017 ONSC 2245, at paras. 23-28; R. v. Rafferty, 2012 ONSC 703, at paras. 35-38. That conclusion flows directly from the Supreme Court of Canada's seminal decision on standing in R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128.

[148] Unlike in those cases, however, the Charter violating conduct of the police here, by executing the search warrant at the front door and conducting a “safety search” of the entire residence, implicated the reasonable expectations of privacy of Mr. Naess and his upstairs tenants. As a result, no question of standing forecloses this court from considering the breach of the privacy rights of the upstairs tenants in deciding whether the circumstances necessitate the exclusion of the evidence. Moreover, the impact of the violation on the upstairs tenants' privacy rights was readily apparent on the record before this court, such that trial economy considerations do not counsel against considering it in deciding whether to exclude the impugned evidence under section 24(2): see Merritt, at para. 28.

[149] By excluding the evidence, the court dissociates itself from the misconduct of the police. At the same time, it reinforces the community's commitment to the individual rights guaranteed by the Charter. In the short term, to be sure, the consequences are rather unpalatable. As it often does, excluding the evidence will likely assist someone who appears guilty of gravely serious crimes to escape responsibility for their wrongdoing: see R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83; Paterson, at para. 56.

[150] However, in the long run, an order excluding the evidence will better ensure the rights of everyone, including all those entirely innocent people who happen to live in houses or buildings containing more than one residential unit. It will do so by sending a clear message that when police execute a search warrant, they must scrupulously respect its limits on their authority. Undoubtedly, that message will better serve the repute of the administration of justice in the long term.

Conclusion

[151] For these reasons, the court grants Mr. Naess's application and, pursuant to section 24(2) of the Charter, orders the exclusion of the following:

• Evidence that Mr. Naess identified himself as "Cody Niece" and accepted and signed for the package containing the doll and the photographs of him doing so.

• Evidence that police located the box containing the doll in the garage of Mr. Naess's home.

• Evidence of any statements Mr. Naess made during the search of the residence.

• Evidence police acquired by searching the house, including their observations, the photographs, and the items seized (including the computer and its contents).

Signed: J. Stribopoulos

Released: November 21, 2022

COURT FILE NO.: CRIMJ (P) 1357/21

DATE: 20221121

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

– and –

COREY NAESS a.k.a. COREY RAY NAESS

REASONS FOR DECISION

Justice J. Stribopoulos

Released: November 21, 2022