COURT FILE NO.: CR-21-42

DATE: 2023-01-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Kyle Hughes, Defendant

Counsel: Cameron Peters for the Crown Joel Hechter for Mr. Hughes

HEARD: October 3-5, 2022

RULING ON MR. HUGHES' CHARTER S. 8 AND GAROFOLI APPLICATIONS

C. Boswell J.

[1] In an oft-cited, twenty-year old ruling, Justice Moldaver, then of the Court of Appeal for Ontario, observed that children are “at once our most valuable and our most vulnerable assets.” They are, he said, “manifestly incapable of defending themselves” against sexual predators. We owe it to them as a society to protect them from the harm done by those willing to sexually exploit them. See R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 at para. 35.

[2] Two years ago, in another oft-cited ruling, the Chief Justice of Canada made a similar observation. “Children are the future of our country and our communities” he said, who “deserve to enjoy a childhood free of sexual violence.” Sexual offences against children exploit their vulnerability and cause profound harm. See R. v. Friesen, 2020 SCC 9 at paras. 1-5 per Wagner, C.J.C.

[3] The Internet is the new frontier of child sexual exploitation. It offers a means by which users may anonymously trade child sexual abuse materials with others around the globe in mere seconds. The dissemination of child pornography on the Internet is a 24-hour-per day enterprise. It is difficult to detect and investigate. The internet is a large, ethereal and borderless space. Child sexual abuse materials may be traded in a variety of different ways, on a variety of different platforms.

[4] Given the gravity of child sexual exploitation offences, we demand and expect that Canadian law enforcement agencies will do their utmost to detect and bring to justice those exploiting children for their own sexual gratification by trading child pornography on the Internet. They must do so, of course, within the boundaries of the constitution.

[5] Mr. Hughes is charged with possession of child pornography and of making it available to others online. In this application he says that while pursuing the laudable goal of reducing the spread of child pornography online, the police used investigative measures that infringed his constitutional rights. He seeks to exclude most of the evidence upon which the Crown’s case against him rests.

[6] A common means of sharing child pornography, for those so inclined, is across peer-to-peer (“P2P”) networks. P2P networks facilitate the direct sharing of files between users (peers) without the need or use of a centralized server. The transmission of files across such networks is fast and generally discrete.

[7] While it is certainly possible for law enforcement agents to conduct manual surveillance on P2P networks searching for users expressing an interest in child pornography, as an investigative technique such manual labour is neither efficient nor particularly effective given the scope of the undertaking. Instead, law enforcement agencies both within and outside of Canada utilize sophisticated software tools that have been developed to survey P2P networks in an automated manner, looking for individuals trading in files known to contain child sexual abuse materials.

[8] In July 2019, automated software tools used by the Ontario Provincial Police detected an IP address geolocated to Beeton, Ontario expressing an interest in files known to contain child pornography on the BitTorrent P2P network. Using information provided by the automated tools, an OPP officer was able to connect the IP address in issue to Mr. Hughes and to obtain a warrant to search his residence. During the search the police seized a computer from Mr. Hughes’ bedroom. Forensic examination of the computer revealed the presence of child pornography files.

[9] Mr. Hughes challenges the use of the automated software as unconstitutional. He submits that the warrant to search his residence should never have been authorized because it was granted on the basis of unconstitutionally obtained evidence. He seeks an order excluding from his trial any evidence obtained directly or indirectly from the use of the automated tools and from the execution of the search warrant.

[10] The ruling that follows will unfold in three parts. First, I will set out the context to the investigation and the warrant application[^1]. Next, I will address the question of whether the evidence gathered by law enforcement through the use of the impugned automated software tools infringed Mr. Hughes’ constitutional right to be free from unreasonable search and seizure. Finally, I will address the question of whether the warrant to search his residence should be set aside.

I. OVERVIEW

[11] To gain a full appreciation of the issues engaged in this application, some background information is required. In this section, I will provide an overview of the following features of the case:

A. The BitTorrent P2P network and how it generally operates;

B. The Internet Crimes Against Children (“ICAC”) taskforce and the system it has developed to detect and investigate the dissemination of child sexual abuse materials on the Internet (the “ICACCOPS” system);

C. The automated software tools utilized in the investigation into Mr. Hughes’ IP address (the “Roundup Suite” of tools); and

D. The investigation, from initial detection to warrant application.

[12] I will review each feature in turn. Before doing so, however, I will take a moment to outline the evidentiary record that was adduced over the course of the application.

[13] The application proceeded in three stages. The first two stages involved a records application. The last stage involved a Garofoli[^2] hearing and Charter arguments.

[14] The records application was a blend of first party and third party disclosure requests. Mr. Hughes sought, amongst other things, a variety of records relating to the Roundup Suite of tools, including operating versions of the software in use at the time of the investigation, the source codes for the software, and its operating and training manuals.

[15] The records application proceeded in two stages in accordance with the procedure outlined in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411. A substantial amount of evidence was tendered at both stages of the application. Most of that evidence was adduced in public hearings. Some was adduced in ex parte, in camera proceedings given that it involved information over which the Crown asserted investigative privilege. The evidence came mostly from two individuals: Detective Gerhard Goodyear and Giuseppe Versace.

[16] Detective Goodyear is a detective with the Computer Crime Unit of the Indiana County, Pennsylvania Detective Bureau. He has substantial experience in the investigation of the online distribution of child sexual abuse material. He provides training to law enforcement agents on the Roundup Suite of tools. He also assists with the maintenance and upkeep of the ICAC law enforcement system, which I will explain momentarily.

[17] Mr. Versace is a civilian member of the OPP. He is a project leader in the child sexual exploitation unit. He was qualified as an expert in the BitTorrent network and protocol and the use of the Roundup Suite of tools to investigate the dissemination of child pornography on that network.

[18] I have previously released rulings on both the first and second stages of the records application. They are reported, respectively, as 2022 ONSC 2164 and 2022 ONSC 5209.

[19] The Garofoli hearing and Charter arguments proceeded on October 3, 4 and 5, 2022. During the hearing, I permitted some focused cross-examination by defence counsel of OPP Detective Constable Erin Neller, who was the affiant of two sworn Informations to Obtain (“ITOs”) filed in support of applications to obtain a production order seeking subscriber information from Rogers Communications and a warrant to search Mr. Hughes’ residence.[^3] She testified generally about her involvement in the investigation of Mr. Hughes and her use of the Roundup Suite of tools.

[20] The parties agreed that I could rely on all of the evidence adduced during each of the three stages of the application in making this ruling and I have done so.

[21] With that general history of the application complete, I will turn to an overview of some of the technical features of the evidence tendered on the application.

A. THE BITTORENT NETWORK

[22] The BitTorrent network is a P2P network. P2P networks are sometimes described as information technology architectures. They facilitate direct connections between remote digital devices. They allow users across the network to share files with each other, without the need of a central server.

[23] P2P networks were popularized in the early 2000s by programs like Napster and Limewire, which allowed users of those programs to freely exchange music, video and data files across the Internet. Napster was all but shut down relatively quickly as a result of a number of lawsuits alleging copyright infringement. Limewire ran into similar trouble. Nevertheless, P2P networks remain a very popular platform for the free sharing of files amongst users.

[24] P2P networks are generally freely accessible to any Internet user. A user need only download a program file – known as a P2P client program – to access the network and to share files with other users on the network. There are a number of well-known P2P networks in operation today including Gnutella, eDonkey2000, eMule, and the one involved in this instance, the BitTorrent network. A variety of client programs compatible with these networks are available online. Some function on only one specific network, while others function across a number of different networks. Mr. Hughes is alleged to have used a client program known as μTorrent, version 3.5.5 to access the BitTorrent network.

[25] Most P2P client programs operate in a similar way. The user opens the client program, types in the name of a sought-after file in the program’s built-in search engine and waits for results. The BitTorrent network works a little differently. Client programs compatible with the BitTorrent network do not have built-in search capability.[^4] Instead, users must locate “torrent files”, which are available from a number of different online sources.

[26] A torrent file is a small data file that includes instructions that enable a BitTorrent client program to locate and download the data that makes up the file being sought (the “payload file”). So, for instance, if a user is looking for the movie, Jurassic Park, he or she must start by locating a torrent file for that movie. The torrent file contains instructions that enable the client program to download the payload file.

[27] The BitTorrent network operates on somewhat of a hybrid model. Though file transfers on the BitTorrent network do not rely on a centralized server, the network does rely on servers that operate as indices. Indices are computers or servers that essentially operate as matchmakers. They track and match users who are looking for files with users who have those same files available to share. When a user loads a torrent into a client program, that program contacts one or more indices and, ideally, is matched with a number of download candidates.

[28] Torrent files identify the target, or payload file, by hash value rather than name or description. A hash value is a fixed length, alphanumeric value that uniquely identifies data. When data files are uploaded to a network, they are assigned hash values. Those hash values allow devices using the network to distinguish files from each other and to compare the integrity of a downloaded file with the payload file targeted.

[29] The BitTorrent network uses the Secure Hash Algorithm (SHA-1) to identify the torrents and files being shared on the network. Files are broken down into fixed-length pieces. Each piece is assigned a SHA-1 hash value. Breaking the file down into pieces enables faster downloads. For example, if a file is broken down into 100 pieces and a user locates 10 other users on the network willing to share the file, he or she can download 10 pieces from each simultaneously, thereby substantially increasing download speed. A file’s SHA-1 hashes are arranged in a structure that enables the user’s client program to re-assemble the file in the proper order. At the top of the structure is the file’s “infohash”.

[30] Obtaining pieces of a file from multiple sources is called “swarming”. When a user successfully downloads one or more pieces of a file, those pieces become available for other users to download. In that way, each user becomes, simultaneously, a downloader and uploader of pieces of the file. The user becomes a member of the swarm.

B. ICAC and ICACCOPS

[31] ICAC is a joint task force comprised of some 61 co-ordinated task forces across the United States. It was established two decades ago by the U.S. Department of Justice. Its mandate is to combat technology-facilitated child exploitation and Internet crimes against children.

[32] ICAC operates a system, known as the ICAC Child On-line Protection System (“ICACCOPS”) to support law enforcement agencies within and outside of the United States with investigations of online child exploitation. ICACCOPS provides technical support for P2P investigations, as well as investigations into Internet chatrooms and activity on the dark web.

[33] The ICACCOPS servers are located in Pennsylvania.

[34] The assistance provided by ICACCOPS in relation to investigations on the BitTorrent network consists of the Roundup Suite of tools as well as a database of infohashes of known child pornography. That is to say, over the years, ICAC has identified, by infohashes, a significant number of files known to contain child sexual abuse material. They maintain a database of those infohashes for investigative purposes.

C. THE ROUNDUP SUITE OF TOOLS

[35] The Roundup Suite consists of two software tools: Torrential Downpour Receptor (“TDR”) and Torrential Downpour (“TD”). These programs were developed by the University of Massachusetts (Amherst) for law enforcement purposes. Law enforcement agents around the world are provided with access to the software for free, once they obtain a license. Licenses are conditional on training, which is provided by Fox Valley Technical College in Appleton, Wisconsin.

[36] TDR and TD run independently but frequently in conjunction with one another. Both operate through the ICACCOPS portal. For all intents and purposes, both operate in a similar fashion to any other BitTorrent client program. They appear to other users on the network as ordinary users.

Torrential Downpour Receptor

[37] TDR functions in two different ways. It has a passive “listening” function and an active “searching” function. Both operate in an automated manner.

[38] When operating in its passive mode, TDR reaches into the ICACCOPS database and randomly selects an infohash. Recall that the infohashes in the database are associated with files known to contain child sexual abuse material. By loading an infohash from the database, TDR makes itself appear on the network to be a user in possession of that infohash. It waits for other users to contact it seeking that infohash.

[39] Every few minutes or so, TDR will select a different, random infohash from the database and again wait for other users to come looking for the file.

[40] TDR will never actually share any of the content of a file with other users. It will simply identify those other users by IP address and report that information back to the ICACCOPS servers.

[41] There is no evidence that the passive mode of TDR played any role in the investigation into Mr. Hughes’ IP address, so I will say no more about it and instead move on to a description of its search function.

[42] When operating in its search mode, TDR again reaches into the ICACCOPS database and randomly selects an infohash. But instead of waiting for other users to come looking for that file, TDR actively searches for other users on the network who appear to have that file available for download. To do so, TDR will reach out to a variety of indices seeking matches. In other words, TDR will identify itself to a variety of indices as a user looking for the file associated with the infohash.

[43] Should TDR be matched with a user who has the file associated with the infohash, or any parts of the file, that user will become an investigative target. TDR will attempt to make a preliminary connection to the user to determine (1) whether a successful connection can be made[^5]; and (2) whether the target user actually has any pieces of the infohash in issue.

[44] If TDR determines that a successful connection can be made, it will report the target user’s IP address and port number[^6] to the ICACCOPS servers. Using propriety software known as “Maxmind”, the ICACCOPS servers will geolocate the target IP address. Once geolocated, the servers will automatically push the IP address and port, along with the infohash of interest, to any law enforcement agent running TD in the jurisdiction where the IP address is located.

Torrential Downpour

[45] Once an operating TD client program receives a push notification from the ICACCOPS servers, with a target IP and port, it will seek to establish a connection to the target device at that IP address. Again, it will do all of this on an automated basis.

[46] Communications between TD and the target device are conducted through the BitTorrent protocol. Initially some identifying information is exchanged between TD and the target user’s client program. TD is designed to lie about its identity. It does not disclose that it is a law-enforcement program. It proceeds to query the target device about what, if any, pieces it has of the infohash in issue. If the target device reports that it has one or more pieces of the infohash of interest, TD will attempt to download the pieces. It will continue to connect to the target device and attempt to download all of the pieces of the file possessed by the target.

[47] TD generally operates in the same way that any other client program on the BitTorrent network operates. It does not, however, engage in swarming. It conducts single-source downloads only, so that it is clear that any pieces downloaded came from the target device. It also does not share pieces it obtains with other users.

[48] TD does not otherwise conduct any searching of the target device, nor does it leave any artifacts on that device. It keeps a log of all of the particulars of its connection to the target device, save for any information that may disclose the way in which TD identifies itself to other users on the network. That is a closely guarded secret.

D. THE INVESTIGATION

[49] In mid-July 2019, an unknown law enforcement agent operating TDR identified IP address 99.232.162.41 as interested in two infohashes contained in the ICACCOPS database. In theory, that law enforcement agent could have been located anywhere in the world. Investigators utilizing TDR have a fair bit of discretion in terms of configuring its settings, including its search parameters. It is not known who the investigator was behind the copy of TDR that identified IP address 99.232.162.41 as a target.

[50] What is known is that the unknown investigator’s TDR program pushed information about the IP address, port and infohashes of interest to the ICACCOPS server. The server geolocated the IP address to New Tecumseth, Ontario and proceeded to push information about the target (the IP address, port and infohashes of interest) to a copy of TD being operated by DC Neller of the OPP’s Child Exploitation Unit in Orillia, Ontario.

[51] To this point in the investigation, the only human involvement in the investigation was the act of the unknown investigator in initiating his or her TDR program. The process was otherwise entirely automated.

[52] The automated investigation continued. DC Neller’s copy of TD attempted to connect to the device operating at the target IP address and port. TD was successful in connecting to the target device’s BitTorrent client program, which in this instance was μTorrent v. 3.5.5. Between July 18, 2019 at 10:02 p.m. and July 19, 2019 at 10:02 p.m., TD downloaded a number of files from the target device and saved them on DC Neller’s computer.

[53] DC Neller was trained and licensed on TD in June 2018. Since that time she has had the programing running continuously on the computer in her office, though she does not look at it every day. Her practice is to review it periodically to monitor any activity.

[54] It was not until August 1, 2019 that DC Neller first noticed that TD had downloaded files from IP address 99.232.162.41. She logged into the ICACCOPS portal and “claimed” the investigation into that IP address. Claiming the case in the ICACCOPS system is a form of deconfliction. It helps to prevent multiple investigators working the same case.

[55] DC Neller reviewed the logs generated by TD and found that it had successfully downloaded 47 files associated with infohash 4f8553f3a984b40e53c0cfdb0606e9084f447709 and 5 files associated with infohash 04f87d2d5faba1afcf3e03eb37c8b748c6b1c93f. She viewed two files from each of the two infohashes and confirmed that they were child pornography.

[56] DC Neller proceeded to conduct her own Maxmind geolocation inquiry and learned that the target IP address resolved to Beeton, Ontario and was assigned to Rogers Communications. On August 6, 2019 she obtained a production order requiring Rogers to provide subscriber information for the target IP address.

[57] On August 7, 2019, Rogers advised that the target IP address was assigned to Athena Hughes, whose address was 20 McGinty Court in Beeton. Police occurrence reports relating to that address provided DC Neller with information that Ms. Hughes had a spouse and two sons, including the accused. A search of Ministry of Transportation (“MTO”) records revealed that 20 McGinty Court was the registered address of each of Ms. Hughes, her husband and her sons.

[58] Using the files acquired by TD and the information she had received from Rogers and the MTO, DC Neller authored a warrant application, including an Information to Obtain sworn August 29, 2019.

[59] The warrant was granted. It was executed on September 5, 2019 at roughly 1 p.m. The accused was naked and in bed when a female officer entered his room. A computer was seized from his room. Subsequent forensic examination of its hard drive revealed that it had an installed copy of μTorrent v. 3.5.5 as well as copies of the files downloaded by DC Neller’s copy of TD between July 18 and 19, 2019.

II. THE CONSTITUTIONAL ISSUE

A. THE ISSUE STATED

[60] As I described at the outset of this ruling, Mr. Hughes seeks to exclude from his trial, evidence of child pornography that the police obtained from a computer alleged to be his. The police obtained the evidence in two ways. First, DC Neller used TD software to download a number of files from a device alleged to have been Mr. Hughes’ computer, over 24 hours between July 18 and 19, 2019. Second, the police obtained and executed a search warrant at Mr. Hughes’ home and seized a computer from his bedroom. They allege that they located files containing child pornography when the computer was forensically examined.

[61] Mr. Hughes argues that the use of the Roundup Suite of tools that led to the downloading of files from his computer on July 18-19, 2019 was unconstitutional. He says that the manner in which the software worked amounted to a search and infringed his right to be free from unreasonable search and seizure, as guaranteed by s. 8 of the Charter. He contends that it is necessary to exclude the evidence obtained unconstitutionally in order to maintain public confidence in the administration of justice.

[62] Mr. Hughes further argues that unconstitutionally obtained evidence must be excised from the ITO filed by DC Neller in support of her application for a warrant to search his residence. When that evidence is excised, there is insufficient evidence left, he says, to support the granting of the warrant. The warrant should, in the circumstances, be found to have been invalid. In the result, the search of Mr. Hughes’ residence was, he submits, unconstitutional. Again, evidence obtained as a result of that unconstitutional search should, he argues, be excluded from his trial in order to maintain public confidence in the administration of justice.

[63] Clearly, the first issue to contend with is whether the investigative use of the Roundup Suite of tools infringed Mr. Hughes’ constitutional right to be free from unreasonable search and seizure.

B. THE GOVERNING PRINCIPLES

[64] Section 8 of the Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search and seizure.

[65] Section 8 must be applied in a purposive way. See Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145. Its purpose is self-evident. It is meant to protect personal privacy from state intrusion. Hence, in R. v. Kang-Brown, 2008 SCC 18 at para. 8, LeBel J. characterized s. 8 as “a shield against unjustified state intrusions on personal privacy.”

[66] A purposive approach requires not only an appreciation of the basic purpose of s. 8, but also an understanding of the importance, in a free and democratic society, of protecting individual privacy. Privacy is the dominant organizing principle of s. 8. See R. v. Tessling, 2004 SCC 67 at para. 19.

[67] In R. v. Spencer, 2014 SCC 43, at para. 15, Cromwell J. described the protection of privacy as “a prerequisite to individual security, self-fulfilment, and autonomy as well as the maintenance of a thriving and democratic society.” And in R. v. Ward, 2012 ONCA 660, at para. 71, Doherty J.A. observed that “personal privacy protects an individual’s ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual’s personal growth and the flourishing of an open and democratic society.”

[68] There is a high social utility, in other words, in protecting personal privacy. It is no surprise, therefore, that the contours of s. 8 protection involve normative determinations. In other words, s. 8 jurisprudence is infused with determinations about what aspects of personal privacy society is keen on protecting.

[69] In Hunter v. Southam – widely regarded as one of the foundational cases of Charter interpretation – LeBel J. held that s. 8 litigation requires “an assessment of whether, in the particular situation, the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

[70] Determining the “public’s interest” is a normative exercise. See Tessling, at para. 42. The means the law has settled upon to identify privacy interests worthy of s. 8 protection is the notion of a “reasonable expectation of privacy”. A reasonable expectation of privacy is an expectation, subjectively held, that is objectively reasonable “from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” See Spencer, para. 18.

[71] Section 8 protects against unreasonable searches. Not every investigative step taken by the police to obtain information about a suspect is a search. Section 8 will only be engaged if the actions of state agents intrude upon an individual’s reasonable expectation of privacy. In the context of this case, whether the automated actions of the ICACCOPS system amounted to a search depends on whether Mr. Hughes had a reasonable expectation of privacy in the information obtained by the state through the use of the system. See Spencer, at para. 16.

[72] The onus is on the claimant – in this case, Mr. Hughes – to establish, on a balance of probabilities, that he had a reasonable expectation of privacy. See R. v. Nolet, 2010 SCC 24, at para. 30.

[73] In R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, the Supreme Court held that a “reasonable expectation of privacy” is to be determined on the basis of the totality of the circumstances. See also R. v. Gomboc, 2010 SCC 55 at para. 18.

[74] The totality of circumstances standard invites the court to consider a broad range of factors. Historically, these factors have generally been grouped into four lines of inquiry:

(a) What was the subject matter of the search?

(b) What was the nature of the claimant’s interest in the subject matter?

(c) Did the claimant have a subjective expectation of privacy in the subject matter? And,

(d) Was the subjective expectation objectively reasonable, having regard to the totality of the circumstances?

See Spencer, at para. 18. See also R. v. Marakah, 2017 SCC 59 at para. 11.

[75] Each line of inquiry has generated its own body of jurisprudence.

(a) The Subject Matter of the Search

[76] Identifying the subject matter of a search is deceptively simple. Appellate courts have repeatedly warned, however, that care must be taken when addressing this question, especially where the search is of electronic data. See Marakah, para. 14.

[77] The subject matter of the search must be defined functionally, having regard to the nature of the privacy interests at stake. The court must consider not only the “nature of the precise information sought, but also…the nature of the information that it reveals.” See Spencer, at para. 26.

[78] One reliable means of determining the subject matter of the search is to ask what were the police really after? See R. v. Ward, 2012 ONCA 660 at para. 67.

(b) The Nature of the Claimant’s Privacy Interest

[79] Identifying the nature of a claimant’s interest in the subject matter of the search is significant to the assessment of the reasonableness of a claimed expectation of privacy. If the claimant has no interest in the subject matter of the search, then he or she will have no standing to assert a s. 8 breach. But even where the claimant has an interest in the subject matter, it is important to identify the nature of the interest because it will ultimately bear on the objective reasonableness of the expectation, from a normative perspective.

[80] Supreme Court jurisprudence identifies three broad categories of privacy interests: territorial, personal and informational. See Spencer, para. 32, Tessling at paras. 21-24, and R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417 at paras. 19-22. Mr. Hughes’ application implicates informational privacy interests.

[81] Informational privacy has three aspects: privacy as secrecy, privacy as control and privacy as anonymity. See Spencer, para. 38. Before moving on, I think it important to note that the approach of s. 8 to privacy interests is content neutral. In other words, “the nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity.” See Spencer, para. 36.

[82] In this application privacy as control and privacy as anonymity are central themes.

[83] The concept of privacy as control is grounded in the concept that information about a person fundamentally belongs to that person, who retains the discretion to communicate the information to others or keep it to himself or herself. See Spencer, para. 40.

[84] The concept of privacy as anonymity reflects an individual’s interest in engaging in public places while at the same time preserving the freedom from identification and surveillance. See Spencer, para. 43.

(c) The Subjective Expectation of Privacy

[85] Once the subject matter of the search and the privacy interest engaged have been identified, the analysis turns to an assessment of the claimant’s subjectively held expectation of privacy and its objective reasonableness.

[86] It has frequently been recognized that establishing a subjective expectation of privacy does not involve a high hurdle. See, for instance, Marakah at para. 22, R. v. Patrick, 2009 SCC 17 at para. 37 and R. v. Jones, 2017 SCC 60 at para. 20. As Côté J. explained in Jones, “overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry.”

[87] Establishing a subjective expectation of privacy requires a minimal evidentiary foundation and it can often be presumed. Again, per Côté J. in Jones, this is because “s. 8’s normative import transcends an individual claimant’s subjective expectations.”

(d) The Objective Reasonableness of the Subjective Expectation of Privacy

[88] Most s. 8 cases turn on the court’s assessment of the reasonableness of the claimant’s subjective expectation of privacy.

[89] The reasonableness of the asserted expectation of privacy is, as I have noted, to be assessed in the totality of the circumstances. The totality of circumstances standard is very flexible. The factors that take on prominence in any given case are contextually driven.

[90] R. v. Plant 1993 70 (SCC), [1993] 3 S.C.R. 281, for instance, was a case involving the monitoring by the police of a suspect’s hydro consumption at a suspected marijuana grow-op. Sopinka J. identified the following factors as particularly prominent in the totality of the circumstances in that case:

• The nature of the information in issue;

• The nature of the relationship between the claimant and the utility company;

• The place where the information was obtained;

• The means by which the information was obtained; and,

• The seriousness of the crime under investigation.

[91] In Tessling, the police flew over properties owned by the accused and used an infra-red camera to record images of the thermal energy radiating from buildings located on the properties in an effort to establish that the buildings housed marijuana grow-ops. Binnie J. identified the following factors, amongst others, as being of particular significance:

• The place where the search occurred;

• Whether the subject matter was in public view;

• Whether the police technique was intrusive in relation to the privacy interest;

• Whether the use of surveillance technology was itself objectively unreasonable; and,

• Whether the infra-read heat profile exposed any intimate details of the accused’s lifestyle or information of a biographical nature.

[92] In Jones, the police obtained text message records involving the accused as a result of a production order delivered to Telus Communications in relation to a co-accused’s phone records. Côté J. considered control over the subject matter and the ability to regulate access to the subject matter to be particularly germane to the reasonableness inquiry.

[93] In Marakah, where the accused asserted a privacy interest in text messages found by the police when they searched the phone of a co-accused, McLachlin C.J.C., referenced the following three factors as particularly important in the totality of circumstances:

• The place to be searched;

• The private nature of the subject matter; and,

• Control over the subject matter.

[94] As the jurisprudence indicates, the particular context of each individual case will inform the factors most significant to the assessment of objective reasonableness.

[95] Having set out the general principals applicable to the s. 8 inquiry, I will take a moment to describe the positions taken by the parties on the application.

C. THE PARTIES’ POSITIONS

The Position of Mr. Hughes

[96] Mr. Hughes’ counsel filed a 100-page factum and supplemented it with oral argument as well as a further factum that followed the release by the Supreme Court of its recent decision in R. v. Ramelson, 2022 SCC 44. I think it fair to say, to his credit, he left no stone unturned in advocating on Mr. Hughes’ behalf. My brief summary will undoubtedly not do justice to the breadth of his argument. My attempt is only to capture its central theme, which is that we should all be rightly concerned – from a personal privacy point of view – about the ability of both domestic and foreign law enforcement agencies to conduct round-the-clock surveillance of our online activities, to identify us by IP address, and to pry into the contents of our computers, all without any judicial oversight whatsoever.

[97] Mr. Hughes contends that the use of the Roundup Suite of tools to conduct surveillance of the BitTorrent network, to identify his IP address, to connect to his computer and to download files from it breached his s. 8 right to be free from unreasonable search and seizure. He claims that the software – and the ICACCOPS system more broadly – is content neutral in its operation and that it violates normatively reasonable expectations of privacy.

[98] Central to Mr. Hughes’ position is the concern for a lack of oversight on the use of the Roundup Suite of tools. Those tools, he submits, conduct broad, unrestrained and unsupervised surveillance of the activities of all users of the BitTorrent network.

[99] There is no oversight, he says, of the files of interest that get added to the ICACCOPS database. No one really knows what files that database contains – not how many, nor what their content is.

[100] The Roundup Suite can, moreover, be configured to sweep the BitTorrent network in search of any type of file, not just child pornography. Three or four men – those with central controlling authority over the ICACCOPS database – can decide to target any type of digital file within their sole discretion. Those three or four men are outside of the jurisdiction of this court. Their ungoverned discretion has the potential, he argues, to “annihilate privacy” on that network.

[101] Mr. Hughes rightly submits that the court must not ask whether users seeking to trade in child pornography have a reasonable expectation of privacy. Section 8 is content neutral. The correct question is whether all users of the BitTorrent network reasonably expect a measure of privacy on the network. He would, of course, answer that question in the affirmative. In his submission, even though the BitTorrent network is a public space, users should still be afforded control over who can come looking for files from their shared folders.

[102] Mr. Hughes places heavy emphasis on the reasoning in R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, especially the dicta of para. 22, where La Forest J. held,

…[I]f the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, [401 U.S. 745 (1971)], put it, at p. 756: "Electronic surveillance is the greatest leveller of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.

[103] The Roundup Suite of tools are, in the submission of the defence, powerful tools of surveillance. All members of society – or at least those using the BitTorrent network – are exposed to the whims of those few law enforcement agents who control the ICACCOPS system. If those tools may arbitrarily be used to identify IP addresses, connect to private computers and download information from them, without any oversight, then privacy on that network no longer has any meaning.

[104] Some jurists have found that there is no reasonable expectation of privacy in an IP address. See, for instance, the decision of Fairburn J., as she then was[^7], in R. v. Nguyen, 2017 ONSC 1341. Mr. Hughes asserts that any such conclusion is wrong. IP addresses, he says, provide identifying information, just as a name, address or date of birth do. An IP address is more than a string of numbers. It is information that narrows the field of investigation to a very small target. It can be the “key that unlocks everything” in the context of an investigation.

[105] Mr. Hughes asserts that the following actions undertaken automatically by the Roundup software individually and cumulatively constituted an encroachment on his reasonable expectation of privacy:

(a) the unauthorized search of his home network conducted by TDR to determine if he was protected by a firewall;

(b) the unauthorized search conducted by TDR of his home computer to determine if he had any pieces of a target infohash for the purpose of uploading that information to the ICACCOPS servers and ultimately so that information might be pushed to a local investigator’s TD program;

(c) The failure to configure TD to alert an investigator before it connected to Mr. Hughes’ computer and began seizing files;

(d) The failure to configure TD to alert an investigator after it connected to Mr. Hughes’ computer and began seizing files;

(e) The seizure of files from Mr. Hughes’ computer without prior judicial authorization; and,

(f) The uploading of information about the investigation of Mr. Hughes’ computer to the ICACCOPS servers, thereby making it available to potentially thousands of investigators worldwide.

[106] Should the court agree with him on the s. 8 issue, Mr. Hughes seeks an order under s. 24(2) excluding any evidence downloaded from his computer by the software. Moreover, as I will address in the next part of this ruling, he seeks to excise any information obtained by TDR and TD from the ITOs filed in support of applications to obtain a production order and a search warrant.

The Position of the Crown

[107] The Crown does not concede a s. 8 breach.

[108] In the Crown’s submission, there is no reasonable expectation of privacy in an IP address nor port data for that matter. They give no information about a person’s biographical core and are essentially meaningless until connected to a person.

[109] Mr. Hughes offered no evidence of his subjective expectation of privacy in his IP address, or his port data, or the files located in his shared folder. In the submission of the Crown, the court should not presume he had such an expectation when he was operating on a public network whose very purpose was to share files with other users.

[110] Even if the court concludes that Mr. Hughes had a subjective expectation of privacy in the subject matter of the purported search, it would not be objectively reasonable. The Crown contends that the very issues being litigated here were dealt with by Justice Fairburn in Nyugen. She held, in that case, that an accused person has no reasonable expectation of privacy in a GUID number. “GUID” is an acronym for Globally Unique Identification. It is a unique number that is assigned to a P2P program client when installed. It is what differentiates users on a P2P network. In that sense it is not different in character to an IP address and Fairburn J. analogized the two. She concluded, at para. 46 of her reasons, that they are “entirely benign until such time as the subscriber information related to an IP address is discovered. Standing on its own, a GUID, like an IP address, does not adversely impact an individual’s reasonable expectation of privacy.”

[111] The Crown argues that this court is obliged to follow Nguyen based on the conventions of comity and stare decisis. See R. v. Sullivan, 2022 SCC 19. Moreover, similar conclusions have been reached in similar circumstances both in Canada and the U.S. See, for instance, R. v. Bykovets, 2022 ABCA 208, [2022] A.J. No. 738 (Alta. C.A.); R. v. Otto, 2019 OSCJ 2473; and People v. Worrell, 59 Misc. 3d 594 (2018), affirmed 170 A.D. 3d 1048 (2019), leave to appeal to the Court of Appeals of New York denied, 33 NY 3d 1075 (2019).

[112] There is, the Crown submits, simply no reasonable expectation of privacy in an IP address or port. Moreover, there can be no reasonable expectation of privacy in information freely shared on a P2P network when the very purpose of participating in the network is to freely share files with other, unknown, users.

[113] The Crown characterizes the defence position as “conspiratorial” and urges the court not to become engaged – as the defence would have it do – in the fevered imaginings associated with conspiracy theories. The case should be decided on the basis of the evidence as to what the software in issue does and how it was utilized in this specific case.

B. ANALYSIS

[114] As the Supreme Court recently observed in R. v. Ramelson, 2022 SCC 44, where privacy on the Internet is concerned, the stakes are high.

[115] The Internet facilitates all manner of behaviour from the “radically transparent” to the “radically disingenuous”. (Ramelson, para. 46). It allows people to act in ways they may not feel comfortable with in any other public forum, largely because of its allure of anonymity. At the same time, it fosters expansive state surveillance and creates significant challenges for “balancing law enforcement with civil liberties, the rule of law, and the repute of the justice system.” (Ramelson, para. 2). As Karakatsanis J. noted, “[t]he mere threat of state intrusion into [Internet spaces] may promote self-censorship, or the abstention from those spaces altogether, with costs to free expression and the exchange of ideas so essential in a vibrant democracy.” (Ramelson, para. 47).

[116] Mr. Hughes’ submissions in this case are deeply rooted in the types of concerns expressed by La Forest J. in Duarte and Karakatsanis J. in Ramelson about the increasing risk of intrusive state surveillance posed by rapidly developing and increasingly sophisticated technology.

[117] Mr. Hughes sounds the alarm about round-the-clock automated surveillance being conducted by both domestic and foreign law enforcement agencies on the BitTorrent network. He is insistent that the surveillance is not limited to the trade in child pornography, but rather content neutral. And he is concerned that the exact nature of the connections made between the Roundup Suite of software and target devices is unclear.

[118] The central question raised by his application – as characterized by Doherty J.A. in R. v. Ward, as above, at para. 87 – is whether Mr. Hughes’ privacy claim, in the totality of the circumstances, must be “recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society.”

[119] To answer that central question, I will focus – as the jurisprudence requires me to do – on whether Mr. Hughes had an objectively reasonable expectation of privacy in the totality of circumstances, with particular emphasis on the following four factors: (a) the subject matter of the search; (b) the nature of Mr. Hughes interest in the subject matter of the search; (c) whether Mr. Hughes had a subjective expectation of privacy in the subject matter of the search; and (d) whether his subjective expectation of privacy was objectively reasonable.

[120] I will consider these factors in turn.

(a) The Subject Matter of the Search

[121] Neither counsel addressed this feature of the case in written or oral argument. Their arguments tended to focus on whether Mr. Hughes had a subjective expectation of privacy and whether it was objectively reasonable.

[122] It may be that counsel’s shared view is that the subject matter of the search is obvious. I am not sure that it is. At any rate, it is important to set out with precision exactly what it is that law enforcement were looking for when they utilized TDR and TD on the occasion in issue.

[123] Ultimately, of course, the goal was to detect and prosecute parties who possess and share child pornography on the Internet. But that broadly stated goal is not sufficiently precise in terms of what the police were after when they engaged TDR and TD.

[124] It seems to me that the automated software – working in tandem – is designed to achieve multiple objectives, all facilitating the ultimate goal. Those objectives are staged.

[125] At the first stage, the software seeks to identify IP addresses and ports of users expressing an interest in one or more files contained in the ICACCOPS database.

[126] At the second stage, the software seeks to determine whether the target user employs a firewall and if it actually has any pieces of the file(s) from the ICACCOPS database.

[127] At the third stage, it seeks to download the file(s) of interest from the target device.

[128] If all three stages are executed successfully, an investigator will review the downloaded files to confirm that they actually contain child sexual abuse materials. If so, the information obtained by the software – the IP address in particluar – will be utilized to obtain a production order requiring the relevant service provider to reveal the subscriber information for that IP address. That information will, in turn, be used to obtain a warrant to search the premises where the subscriber is located with a view to seizing and searching any electronic devices found at that location, which may contain child pornography.

[129] In the result, I find that the subject matter of the search involved (1) Mr. Hughes’ IP address and port number; (2) information about whether he was utilizing a firewall; and (3) files in the shared folder of his μTorrent v. 3.5.5 client program – specifically those files corresponding to an infohash of interest contained in the ICACCOPS database.

[130] I am satisfied that the scope of the purported searches conducted by TDR and TD was limited to files matching the specific infohash values of files found in the ICACCOPS database. In other words, TDR and TD were not conducting random surveillance on users of the BitTorrent network. They were seeking to detect users expressing an interest in files that matched the infohashes of one or more files contained in the ICACCOPS database.

[131] Mr. Hughes counsel was at pains to characterize the purported searches conducted by TDR and TD as “content neutral”. I understand this characterization to reflect two concepts. First, that the software is not strictly limited to searching for child pornography. It could, in theory, be configured to search for any manner of files, whether legal or illegal in content. Second, even when configured to search only for files located in the ICACCOPS database, that database is not restricted to files that contain known child pornography. The process used to identify files containing child pornography and adding them to the database is not foolproof. Some files that do not contain illegal content get through.

[132] In terms of the first concept, I note that this was a lengthy application, when all three stages are accounted for. Mr. Versace and Detective Goodyear gave extensive evidence, both in direct and cross-examination, about the manner in which TD and TDR function, in the broader context of the ICACCOPS system.

[133] There is no evidence that TDR and TD are used by law enforcement to search for files other than those located in the ICACCOPS database of known child pornography. There is certainly no evidence that the OPP used the software in the investigation in issue to search for files other than specific ones drawn from the ICACCOPS database, namely infohashes 4f8553f3a9840e53c0cfdb060639084f447709 and 04f87d2d5faba1afcf3e03eb37c8b748c6b1c93f.

[134] I do not intend to analyse this case based on searches that might hypothetically be done with the software. The extensive evidence adduced on the application satisfies me that the Roundup Suite of tools are intended to seek out users of the BitTorrent network expressing an interest in files associated with hashvalues contained in the ICACCOPS database of known child pornography. I am satisfied that they are used exclusively for that purpose. I am satisfied that they were used exclusively for that purpose in the investigation of Mr. Hughes.

[135] In terms of the second concept, although Detective Goodyear acknowledged under cross-examination that the ICACCOPS database is “technologically content neutral”, no evidence was adduced that might support the assertion that it is, in practice, content neutral.

[136] The evidence tendered during the application is that the database contains files – identified by their infohash values – of known child pornography. It is a large database. Detective Goodyear conceded that files sometimes get added to it that do not contain material that would meet the definition of child pornography in the U.S. or most (if not all) other jurisdictions. That the occasional file might be added to the database when it does not contain child sexual abuse material does not, in my view, render the database content neutral. It is anything but. Its focus is on child pornography.

[137] Detective Goodyear testified that files added to the database have to be vetted. ICAC employs an algorithm that he said “does most of the heavy lifting” to determine what files contain child pornography. Sometimes the algorithm is unable to make a determination. In those cases, the files of interest will be vetted by human eyes. There are a small number of people who do the vetting. Including him, there are perhaps four altogether. There is no independent oversight, he said, of what gets into the database but there has to be more than “one set of eyes” on a file before it gets added to the database.

[138] I accept that the purpose of the database is to facilitate the objects of the ICACCOPS system. And I accept that the principal goal of that system is to aid law enforcement in the investigation of the distribution of child sexual abuse material on the Internet. In light of that goal, the efficacy of the system would be seriously undermined if the database did not focus on child pornography. If the database were truly content neutral, investigators would frequently be sent on “wild goose chases”. They would regularly be faced with reviewing downloaded files of no investigative interest to an officer tasked with detecting and prosecuting individuals who possess and disseminate child pornography. Thus, instead of facilitating investigations, the database would hamper them by wasting investigators’ time.

[139] In other words, it is strongly in the interests of the ICACCOPS system to maintain a database that strictly focuses on files that are legitimately associated with child sexual abuse material. I am satisfied that the database does so.

[140] In the result, my analysis will proceed on the basis that the subject matter of the purported search in issue in this case included: (1) Mr. Hughes’ IP address and port; (2) information about whether he was utilizing a firewall; and (3) pieces of files having hashvalues matching those located in the ICACCOPS database of known child pornography.

[141] Before moving on from this section, I will address one further issue associated with the search in issue. Specifically, the fact that some of the automated investigation carried out by the Roundup Suite of tools took place beyond the borders of Canada.

[142] The purported search in issue here began when an unknown investigator, whose location is similarly unknown, used a version of TDR to make an initial connection to a device associated with an IP address allegedly linked to Mr. Hughes. It was not until information about Mr. Hughes’ IP and port, along with the hash values of interest, were pushed to DC Neller’s version of TD, that one could be confident that a Canadian law enforcement agent became involved.

[143] One way to approach the analysis would be to treat the information received by DC Neller as a “tip” and to assess the constitutionality of her investigation from that point forward. I do not intend to do so. I appreciate that an argument could be made that the actions of foreign agents taking place outside of the borders of Canada are not subject to constitutional scrutiny by this court. That argument was not advanced by the Crown in this case.

[144] I am approaching the analysis on the basis that the OPP’s investigation depends on an interconnected system (the ICACCOPS system) and utilizes, whether directly or indirectly, the Roundup Suite of tools. I am accordingly proceeding on the basis that the OPP’s investigation began when TDR first connected to a device at Mr. Hughes’ IP address.

(b) Mr. Hughes’ Interest in the Subject Matter of the Search

[145] Mr. Hughes clearly had a direct interest in the subject matter of the search.

[146] Although his mother was technically the subscriber to a Rogers Communications’ Internet plan, it is alleged that his device was utilizing the relevant IP address and port at all material times. The files downloaded by DC Neller’s copy of TD were allegedly downloaded from Mr. Hughes’ device.

[147] The direct interest Mr. Hughes has in the subject matter of the search is enough to give him standing to assert a breach of his s. 8 right. That said, the nature of Mr. Hughes’ privacy interest in the IP address, port and the files in his shared folder is, as Cromwell J. instructed in Spencer, at para. 34, an important factor in assessing the reasonableness of an expectation of privacy.

[148] As I noted earlier, Mr. Hughes’ claim engages informational privacy issues. Spencer instructs that informational privacy includes three aspects: privacy as secrecy; privacy as control; and privacy as anonymity. Mr. Hughes’ assertions here focus on privacy as control and privacy as anonymity.

Privacy as Control

[149] A prominent feature of the totality of circumstances here is that Mr. Hughes was engaged in file sharing on a public P2P network. The sole purpose for the existence of the BitTorrent network is to facilitate file-sharing between peers. The functionality of the system depends on the willingness of its users to make files available for sharing. Those using the network and having files in their shared file folders appreciate that those files may be accessed and downloaded by other users across the world.

[150] Mr. Hughes’ lawyer argued that, notwithstanding the architecture of the BitTorrent network, Mr. Hughes maintained an interest in privacy as control. He likened the circumstances in play to the implied license to knock recognized by Canadian common law.

[151] Our law deems occupants of private residences to grant the public a limited license to approach the door of the residence and knock, provided that the knocker is on legitimate business. The implied license to knock is rooted in the practical realities of living in connected communities. It permits the Girl Guides, for instance, to sell their cookies door-to-door, the local mayoral candidate to try to rustle up votes, and the police to canvas a neighbourhood for witnesses to an offence.

[152] The implied license to knock has its limits. Where the knocker is, for instance, a police officer intent on gathering evidence against the occupant(s) by knocking on the door, the police exceed the authority conferred by the implied license to knock. Their conduct, in the circumstances, will constitute a search. See R. v. Evans, [1996] 2 S.C.R. 8 at para. 13.

[153] Mr. Hughes’ counsel argues that users of the BitTorrent network are like occupants of a residence who grant an implied license to other users of the network to “knock” on their client programs. The police exceed that license, however, when they intent of their “knock” is to gather evidence.

[154] There is some superficial attractiveness to defence counsel’s argument. But in my view, it is not a fair analogy. First, the implied license to knock involves a practical limitation on the high level of territorial privacy associated with personal residences. Operating a program on a public P2P network does not engage the same territorial privacy interest.

[155] Second, as I have said, the sole purpose of the BitTorrent network is the sharing of files. This is not a case of Mr. Hughes, snug in his personal residence, being subject to the prying eyes of the police knocking on his door for an investigative purpose. This is a case of Mr. Hughes joining a network for the purpose of sharing files. He allegedly made those files available to any other user of the network to see and to download. He allegedly openly communicated with anyone else on the network that he had particular files to share and was willing to share them. It just so happened that someone looking for those files was a law enforcement agent.

[156] In my view, the implied license to knock is not a useful analogy. Mr. Hughes exposed the files in his shared folder to any and all other users of the BitTorrent network to see and to download if they so chose. His shared files were in plain view and available for the taking. He can hardly complain if a police officer saw them and took them.

[157] As Binnie J. said in R. v. Tessling, as above, at para. 40, “a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public…”

Privacy as Anonymity

[158] I accept that Mr. Hughes has an interest in privacy as anonymity when he is operating on the Internet, even in the BitTorrent network.

[159] Fairburn J. observed in R. v. Nguyen, as above, at para. 17, that “the normative approach to s. 8 of the Charter demands that, where they choose to, individuals be in a position to operate anonymously on the Internet.”

[160] As Cromwell J. describes it, “[a]nonymity permits individuals to act in public places but to preserve freedom from identification and surveillance.” (Spencer, para. 43). He went on to note:

The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private… (Spencer, para. 46).

[161] Mr. Hughes is alleged to have shared files containing child pornography on the BitTorrent network. If he in fact was doing so, he must have been aware that doing so was part of an illicit trade between like-minded individuals. Anonymity would have been of principal importance to him and others involved in this trade. I accept the importance of anonymity to him, but of course the analysis does not end here.

[162] Mr. Hughes’ claimed privacy interest must be tied to the specific subject matter of the search. Downloading files – whether child pornography or not – from his shared folder, says nothing about his identity. It may provide information about the user’s sexual deviances, but it says nothing about the identity of the user.

[163] Similarly, the IP address and port give other users no information about Mr. Hughes’ identity. Granted, it is information the police may use to conduct further investigations that may identify Mr. Hughes. But untethered to subscriber information, it says nothing about Mr. Hughes’ identity.

[164] I agree with the comments of Fairburn J., in Nyugen, where she said, at paras. 40-41:

40. The subject matter of the alleged search here is a long 30 plus digit number that is detached from subscriber information. It tells us nothing about a particular individual. In this sense, it is exactly like an IP address.

41. As for Mr. Nguyen’s interest in the GUID it is minimal. As above, the GUID is merely the number that allows traffic to and from the shared folder on a user’s computer. It is automatically assigned when the software is downloaded to the computer and, I find, of no specific interest to the user.

[165] On a more general level, it has often been observed that informational privacy protects a biographical core of information. For instance, in R. v. Plant, as above, at para. 20, Sopinka J. described the constitutional protection given to informational privacy as follows:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

[166] In my view, information about Mr. Hughes’ purported IP address and port say nothing about his biographical core. They do not tell the police where the IP address is being used nor who is using it. An IP address on its own does not, without more, communicate confidential information about its user. See R. v. Bykovets, 2022 ABCA 208, [2022] A.J. No. 738 at paras. 20-21.

[167] Information revealing that the user of that IP address has an interest in child pornography, is information that goes to the biographical core of the user, but again, so long as the user remains anonymous, his or her informational privacy remains by and large intact.

[168] In summary, I am satisfied that Mr. Hughes has a direct interest in the subject matter of the purported search. But from a privacy perspective, I find that interest to be, at best, very modest.

(c) Mr. Hughes’ Subjective Expectation of Privacy

[169] Mr. Hughes did not testify during any stage of the application. He asks that the court infer or presume that he had a subjective expectation of privacy.

[170] It is somewhat of a big ask in the circumstances of this case.

[171] I have repeatedly emphasized that the whole point of the BitTorrent P2P network was to share files. Any other user of the BitTorrent network could access information about Mr. Hughes’ IP address using a freely available client program compatible with that network. And any other user of the BitTorrent network could access and download the files in his shared folder. I agree with the observations of North J. in R. v. El-Halfawi, 2021 ONCJ 462, where he said, at para. 87,

There is no reasonable basis to conclude that there was an intention to keep files in the shared folders of the two computers private. To the contrary, by installing and using P2P file sharing software, there was an expectation by the user of these computers that the files in the shared folders would be shared with other users of the P2P network.

[172] Justice North’s comments echo those of Fairburn J. in Nguyen where she said, at para. 42:

The applicant did not testify about his subjective expectation in the GUID; it is difficult to imagine one. While identifying a GUID and IP address permits the police to focus in on a user to determine if his or her shared folder contains child pornography, it is just that, a shared folder on a P2P network. The whole purpose of the network is to share with other anonymous users around the world. The information is there for the taking and giving. The user chooses to be on a P2P network and chooses what files to make available for download. He or she also knows that a program, which he or she has downloaded from the Internet, facilitates all of this activity on the P2P network. In these circumstances, it is difficult to imagine how the individual might have a subjective expectation of privacy in the GUID behind the program facilitating the activity consciously undertaken.

[173] Having said all of that, I remain mindful that the subjective expectation of privacy analysis should not focus too strenuously on the specific expectations of the individual claimant. Again, this is because the inquiry is normative in nature.

[174] While I think that Mr. Hughes’ subjective expectation of privacy in all the circumstances is dubious, I am prepared to accept, for the sake of argument, that if he was trading in child pornography on the Internet, he had a subjective expectation that he was doing so anonymously. All that is to say, while I think his assertion of a subjective expectation of privacy is weak, I do not consider this aspect of the analysis to be determinative.

[175] Instead, I consider the next aspect of the inquiry to be determinative, as it so often is.

(d) Objective Reasonableness

[176] Whether Mr. Hughes’ subjective expectation of privacy is objectively reasonable turns on a consideration of the totality of the circumstances. Of those circumstances, I consider the following to be the most prominent in the context of this case:

• the place of the search;

• control over the subject matter of the search;

• Mr. Hughes’ ability to regulate access to the subject matter of the search; and,

• whether the use of surveillance technology in this instance is itself objectionally unreasonable.

[177] In light of the Crown’s position, I must address, straight out of the gate, the assertion that I am bound to follow the Fairburn J.’s determination, in Nguyen, that, standing on its own, an IP address does not trigger a reasonable expectation of privacy. (Nguyen, para. 36).

[178] At the time Nguyen was released, Fairburn J. was a judge of coordinate jurisdiction. The Supreme Court directed, in Sullivan, that courts should, in adherence to the principle of judicial comity and the doctrine of stare decisis, follow prior decisions of courts of coordinate jurisdiction on issues of law unless: (1) the rationale of an earlier decision has been undermined by subsequent appellate decisions; (2) the earlier decision was reached per incuriam (i.e. through carelessness or by inadvertence); or (3) the earlier decision was not fully considered, for instance where it has been taken in exigent circumstances. (Sullivan, para. 75).

[179] Defence counsel argues that I need not follow the decision in Nguyen because it was reached per incuriam. Specifically, he contends that Fairburn J. misread Spencer and extended it beyond its plain meaning.

[180] The issue in Spencer was whether the failure on the part of the police to seek prior judicial authorization to obtain subscriber information about an IP address from a service provider breached Mr. Spencer’s s. 8 right. The court found that it did. Cromwell J. held that linking the identity of a person to their use of the Internet must be recognized as giving rise to a reasonable expectation of privacy. Subscriber information tends to link particular kinds of information to identifiable individuals.

[181] The court in Spencer was not asked to decide, nor did it directly decide, that there is no objectively reasonable expectation of privacy in an IP address, standing alone. To this extent, I agree with the position advanced by defence counsel. Indeed, in my second ruling on the O’Connor application, I addressed the Crown’s assertion that Spencer had conclusively determined that there is no reasonable expectation of privacy in an IP address, standing alone. I indicated then, at para. 114, that I did not share the Crown’s interpretation of Spencer, which was informed by the Nguyen decision.

[182] On further consideration, I have been persuaded by the Crown that while Cromwell J. did not directly hold that a reasonable expectation of privacy does not exist in a bare IP address, his ruling, properly interpreted, implies as much.

[183] In the result, my view is that Fairburn J.’s interpretation of Spencer is a correct one. A finding that a reasonable expectation of privacy arises at the moment the police seek to connect an IP address to a subscriber, implies that it has not arisen prior to that time.

[184] The Alberta Court of Appeal came to the same conclusion in Bykovets.

[185] I am satisfied that I am obliged to follow that conclusion by the horizontal convention of precedent, if not the vertical convention.

[186] Even if I were not obliged to follow that conclusion, I would reach it on my own consideration of the circumstances of this case.

[187] Like others, I find that the IP address, standing alone or taken together with the port number, offers no insight or information into any private or core biographical detail about an individual. It is just a random number.

[188] Moreover, whether that IP address is protected by a firewall may tell investigators something about the technology being utilized by the user of the IP address, but again it provides no information about any personal or core biographical information about an individual.

[189] On the other hand, accessing files in the shared folder of a user’s BitTorrent client program does tend to reveal information about the user. It may reveal the user’s sexual preferences, his or her taste in music, art, or literature. And those tastes may lead to other inferences.

[190] Having said that, at the time TDR and TD connected to the device operating on the target IP address in this case, the identify of the user of that IP address was unknown. Mr. Hughes’ informational privacy interest at that point remained relatively intact.

[191] The objective reasonableness of any subjective expectation of privacy Mr. Hughes may have had in his IP address, his firewall status, and the content of his shared folder are irretrievably undermined, however, when the issues of place, control and access are considered. Those concepts overlap in the circumstances here.

[192] The “place” in this instance, is the BitTorrent network. Users of that network choose to operate on it for the purpose of sharing files. They know it is a public network. They know their IP address and port information are available to other users to access. That information is critical to control the sharing of information across the network. Moreover, they choose what to put (or leave) in their shared folder for other users to access. They knowingly expose that information to the public, or at least that segment of the public using the BitTorrent network. TDR and TD access only what everyone else accessing the BitTorrent network anywhere in the world could access.

[193] As Fairburn J. held in Nguyen, at para. 46,

…[A] person who chooses to operate on a P2P network is making information available to other users on the network…Just like the user knows he can obtain information from another’s shared folder, he knows that another inhabitant of the world…may obtain information from his shared folder. He has made a conscious decision to make his shared folder open to others on the P2P network.

[194] I agree. Others have as well, both in Canada and the U.S. See, for instance, R. v. El-Halfawi, as above and R. v. Bykovets, as above.

[195] In People v. Worrell, as above, the Appellate Division of the Supreme Court of New York assessed Mr. Worrell’s argument that the warrantless use of software tools by a New York City police detective to download files from his shared folder on a P2P network constituted an unlawful search. The prosecutor tendered evidence that the files downloaded by the detective were accessible to anyone who had downloaded P2P software for free off of the Internet. “Despite any subjective expectation the defendant may have held regarding the privacy of his files”, the appellate court said, “an individual does not have an objectively reasonable expectation of privacy in computer files stored in such a broadly accessible manner on the network, the very purpose of which is to permit such sharing of files between users.”

[196] The Supreme Court recognized in Jones, as above, that in the context of informational privacy, all information about a person is fundamentally his or hers to communicate or retain as he or she sees fit. When a person, like Mr. Hughes, makes a conscious choice to make available to the world of BitTorrent users, the files contained in his shared folder, he has made a meaningful choice to abandon his privacy interest in the subject matter of those files. Said another way, the user exercises control over who will get access to the content of their shared folder. And in leaving files in a shared folder on the BitTorrent, the user has exercised his or her discretion in favour of granting unfettered access to any and all users of the network.

[197] On a broader level, Mr. Hughes challenges the surveillance activities of the Roundup Suite of tools as inherently objectionable based on their capacity to intrude on personal privacy without any oversight.

[198] Lawyers, academics, jurists and the general public alike are rightly concerned about the reach and intrusion that sophisticated and automated surveillance techniques present to the notion of privacy in this country. We must always be alert to the incremental erosion of the rights that are so important to a flourishing democracy.

[199] Having said that, each case must be examined on its own merits. Decisions must not be made on the basis of prejudice or a fear about “Big Brother” watching us that is not grounded in evidence. Not every use of automated technology amounts to unrestrained intrusion into our private lives.

[200] I started this ruling by observing that child sexual abuse is a grave offence. We expect and demand that our law enforcement agencies will do everything they can – within constitutional boundaries – to curb the spread of child pornography.

[201] The police must be reasonably expected to use sophisticated software tools to detect and investigate those who spread child pornography through technologically sophisticated means on the Internet. If they do not, they may as well throw up their hands in despair.

[202] The technology used here is a type of surveillance. But it is a very specific, targeted type. It is not random or arbitrary. It is not content neutral. It targets only those users of the BitTorrent network who express an interest in files known to contain child pornography. There is nothing inherently objectionable about that.

[203] By way of summary then, I find that:

(a) The subject matter of the purported search in this case includes: (i) Mr. Hughes’ IP address; (ii) his firewall status; and (iii) the content of his shared file folder, to the extent that it matched the infohashes of known child sexual abuse material in the ICACCOPS database;

(b) Mr. Hughes had a direct interest in the subject matter of the purported search, sufficient to support his standing to advance his s. 8 claim. From a privacy point of view, however, his interest in the subject matter of the search was modest at best;

(c) Mr. Hughes had a dubious, but arguable, subjective expectation of privacy; and,

(d) To the extent that Mr. Hughes had a subjective expectation of privacy, it was not objectively reasonable having regard to his conscious choice to expose the subject matter of the search to the public on a network whose raison d’etre is the free sharing of that type of information.

[204] For all of the foregoing reasons, I conclude that, in the totality of circumstances, Mr. Hughes did not have a reasonable expectation of privacy in the subject matter of the purported search in issue here. In the result, the purported search is not actually a search within the meaning of s. 8 and thus the s. 8 right was not engaged.

[205] Having concluded that the information obtained by the OPP through the application of the TDR and TD software was not obtained in an unconstitutional manner, I am now in a position to consider Mr. Hughes’ challenges to the production order and the warrant that authorized the search of his residence.

III. THE WARRANT ISSUE

A. THE APPLICATION

[206] On September 5, 2019 OPP officers executed a warrant to search Mr. Hughes’ residence in Beeton, Ontario. The warrant was granted on the strength of the ITO of DC Neller sworn August 29, 2019.

[207] The principal evidence relied upon by DC Neller came from two sources:

(a) Evidence gathered through the use of TDR and TD, including a target IP address and port, as well as pieces of two files identified by infohash numbers I have referred to above. DC Neller swore that she reviewed the files downloaded from the device operating at the target IP address and confirmed that they contained child pornography; and,

(b) Subscriber information associated with the target IP address which DC Neller obtained from Rogers Communications in response to a production order issued by a justice of the peace on August 6, 2019. Rogers provided information that the subscriber of the target IP address was Athena Hughes, with a residential address of 20 McGinty Court in Beeton. DC Neller conducted further investigations of the address, including surveillance, to determine the occupants of the residence, which included Mr. Hughes.

[208] The application before the court was initiated by a Notice of Application dated September 20, 2022 served and filed by counsel to Mr. Hughes. The relief sought in the Notice of Application was (1) leave to cross-examine DC Neller in her capacity as the affiant of the ITOs to obtain the production order and the search warrant; and (2) an order excluding from evidence at Mr. Hughes’ trial any evidence derived from the deployment of the Roundup Suite of tools.

[209] My interpretation of the application is that Mr. Hughes is challenging the validity of both the production order and the search warrant. The following analysis proceeds on that basis.

B. THE GOVERNING PRINCIPLES

[210] The warrant was sought and granted under s. 487(1) of the Criminal Code. Before a warrant may be granted under that section, the issuing justice must be satisfied that there are reasonable grounds to believe that an offence has been committed and that evidence of that offence is to be found in the place to be searched. These requirements are the minimum standard for compliance with s. 8 of the Charter. See R. v. Morelli, 2010 SCC 8, at para. 39.

[211] The production order was sought and granted under s. 487.014 of the Criminal Code. The preconditions to the granting of a production order mirror those of the granting of a search warrant under s. 487(1). Specifically, the issuing justice must be satisfied that there are reasonable grounds to believe that an office has been or will be committed, that the document or data being sought is in the person’s control, and that it will afford evidence of the commission of the named offence. See R. v. Vice Media Canada Inc., 2017 ONCA 231 at para. 28, aff’d 2018 SCC 53.

[212] The “reasonable grounds” requirement imports a credibly based probability standard. That standard requires more than suspicion but demands less than a balance of probabilities. See R. v. Herta, 2018 ONCA 927, at para. 20.

[213] A judicially authorized warrant is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether, on the basis of the sworn evidence filed, the issuing judge could (not should) have granted the warrant. See R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at para. 56, where Sopinka J. outlined the test as follows:

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.

[214] The same test applies whether the authorization in issue is a warrant or a production order. See R. v. Patel, 2021 ONSC 4303 at paras. 35-40.

[215] The onus is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the authorization in issue. To discharge that onus, the applicant must generally attack the preconditions to the authorization. In other words, the applicant must undermine the existence of reasonable grounds. If the applicant fails to undermine those grounds, a conclusion will usually follow that the issuing justice could have authorized the warrant or production order, as the case may be.

[216] That said, as Justice Doherty observed in R. v. Sivrattan, 2017 ONCA 23, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis on which to issue the warrant.”

[217] The analytical approach a reviewing judge should take to the sufficiency of an ITO was described by Fairburn J.A., as she then was, in R. v. Herta, as above, at para. 21. She instructed that the reviewing judge must take a common sense and holistic approach and added that the ultimate question is whether the issuing justice could have found that the ITO, in its redacted form, and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that an offence had occurred and that evidence of it could be found at the place to be searched.

[218] The reviewing judge does not necessarily limit his or her consideration to the ITO that was before the issuing justice. Erroneous or unconstitutionally obtained evidence must be excised from the original ITO. At the same time, the reviewing judge may consider, within limits, additional evidence adduced during the voir dire to correct minor errors in the ITO. As Fish, J. instructed in R. v. Morelli, as above, at para. 41:

The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (R. v Araujo, (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[219] The standard against which alleged errors or omissions in the ITO are tested is the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, at para. 122.

[220] As Watt J.A. summed it up in R. v. Paryniuk, 2017 ONCA 87 at para. 67, “[w]hen the dust settles after excision and amplification…there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.”

C. THE PARTIES’ POSITIONS

The Position of Mr. Hughes

[221] Mr. Hughes’ challenge to the issuance of the production order and warrant is grounded in two assertions. First, he argues that any evidence obtained – directly or indirectly – from the use of the Roundup Suite of tools must be excised from the ITOs filed with the applications to obtain the production order and the search warrant because it was obtained in a manner that infringed his constitutional rights. Following such excision, he argues, the authorizations are facially invalid.

[222] Second, he asserts that DC Neller was “woefully inadequate” to be an affiant in the circumstances of this case. The reliability of the evidence provided by DC Neller rested, in large measure, on the notion that she knew what she was talking about when she provided details of the information gathered by the Roundup Suite of tools. Her evidence on cross-examination during the Garofoli hearing, however, supports a conclusion that she has extremely limited knowledge of how TD and TDR work. She did not know, for instance: how the tools work together; that TDR had a search feature; that someone outside of Ontario was running TDR, which passed Mr. Hughes’ IP address along to her; or how her copy of TD was configured. Moreover, she has never used the BitTorrent network and does not know how it works.

[223] It was, Mr. Hughes submits, DC Neller’s job to explain how the software works to the issuing justices. She should have, but failed, to alert the issuing justices to the following material facts:

• there is a global network of computers running TDR that are making contact with computers in Ontario. TDR computers could be anywhere in the world;

• an unknown copy of TDR determined if there was a firewall involved and how many pieces were on the target computer and sent that information through servers in Pennsylvania to the copy of TD on DC Neller’s computer in Orillia;

• the process is automatic and requires no human intervention, resulting in the seizure of files without any oversight; and,

• no one knows what percentage of files in the ICACCOPS database actually contain child pornography. In the result, targetted files may not always contain child pornography.

[224] In Mr. Hughes’ submission, DC Neller was just not up to the task. This was a case of institutional negligence. DC Neller urged the issuing justices to believe that the content of her ITO was true, when in fact she herself knew too little about the software to know if what she was saying was true.

[225] Mr. Hughes further submits that DC Neller was negligent in the manner in which she conducted surveillance of Mr. Hughes’ residence in Beeton. Although she attended at the property on two occasions, she failed to assess whether there was an open network emanating from Mr. Hughes’ residence. She was aware that open networks can be used by neighbours and others to connect to the Internet but failed to rule out that possibility here. All she had to do was check her cell phone to see if there was a nearby, unsecured network. She failed to do so.

[226] In the submission of Mr. Hughes’ counsel, the ITO should be set aside if for no other purpose than to make it clear to the OPP that they have to take ITOs seriously. The evidence here, he says, suggests that they do not appear to understand that care is required.

The Position of the Crown

[227] The Crown’s position, at the risk of oversimplifying it, is that there is no basis to set aside either the production order or the search warrant.

[228] There is no basis to excise evidence as unconstitutional. Provided the evidence generated by TDR and TD remains in the ITOs, there was a more than ample basis to support the issuance of both authorizations.

[229] DC Neller may not have a technically sophisticated understanding of how TDR and TD work, but she is entitled to assume the reliability of the tools she is using. See R. v. Burke, 2013 ONCA 424 at paras. 23-28. The focus of the inquiry is on the officer’s reasonable belief. There is no evidence that the Roundup Suite of tools is unreliable.

[230] Moreover, an affiant need not provide the technical specifications about how the software works. She need only inform the issuing justice of the material issues relating to the software and its use. See R. v. Nguyen, as above, at para. 53.

[231] In terms of the prospect of a wifi interloper hijacking Mr. Hughes’ IP address, there is no evidentiary basis that anything of the sort occurred. It is not a pre-condition to the granting of a search warrant that the affiant establish that the target was using a secure wifi connection. In fact, even if the connection was unsecure, that fact would not undermine DC Neller’s reasonable grounds to believe Mr. Hughes was using the suspect IP address at all material times. See R. v. Dunford, 2022 ONSC 4327 at para. 58.

D. ANALYSIS

[232] Candidly, the main thrust of the Garofoli application was that any evidence obtained through the use of the Roundup Suite of software was obtained unconstitutionally and should, therefore, be excised from the ITOs filed in support of the applications to obtain the production order and warrant.

[233] I have found that the use of the Roundup Suite of tools did not infringe Mr. Hughes’ s. 8 right. The evidence generated through the use of those tools was not, in my view, obtained unconstitutionally. I would not, therefore, excise it from DC Neller’s ITOs.

[234] The result of my conclusions in relation to the Charter application largely eviscerates the Garofoli application.

[235] Mr. Hughes, of course, still takes the position that there were material facts that DC Neller should have told the issuing justices about the way in which TDR and TD operate. But what appears to make those facts material is their tendency to establish, in Mr. Hughes’ view, that there were serious questions about whether the automated investigation conducted by the Roundup Suite of tools was constitutionally compliant. In my view, none of the purportedly material facts omitted by DC Neller were, in fact, material or necessary to include in the ITOs.

DC Neller’s Level of Expertise

[236] DC Neller, I think it fair to say, is not an expert in the design or functionality of TDR or TD. She is not an expert in the design of the BitTorrent network, nor familiar with the intricacies of its functionality.

[237] Crown counsel remarked in closing submissions that we were spoiled in this application by having evidence from Detective Goodyear and Mr. Versace, both of whom are extremely well-versed in both the design and operation of the BitTorrent network and of the functional specifications of TD and TDR. I agree with him. Very few people have their level of knowledge and expertise. I would not expect that every law enforcement officer who uses the Roundup Suite of tools has their level of expertise. Far from it.

[238] Prior to being licensed to use the software, law enforcement officers must be trained in how to use it. DC Neller received her training on it in June 2018. I am satisfied that she understood generally how to utilize it as an investigative tool. There is no evidence that she misused it, or undermined its reliability in any way.

[239] DC Neller testified that she runs the TD program on her office computer 24 hours a day, non-stop. She does not run TDR. She was aware that TD receives target IP addresses from the ICACCOPS servers, but she does not have sufficient training to explain how that technology works. She is not familiar with the search function of TDR and could not speak to how it may have played a role in this investigation.

[240] Notwithstanding DC Neller’s lack of expertise with respect to the BitTorrent network and the Roundup Suite of tools, I am satisfied that she was sufficiently literate with the network and the software tools utilized in the investigation to provide a reasonably accurate and meaningful explanation of them to the issuing justices. And I am satisfied that she had a sufficient understanding of all of the circumstances to form the necessary reasonable grounds to support her application for the production order and the warrant.

[241] I will take a moment to examine the content of her two ITOs.

The Production Order ITO

[242] In the ITO to obtain a production order, DC Neller described how the BitTorrent network generally functions as a P2P network. Based on the evidence provided in these proceedings by Mr. Versace and Detective Goodyear, I find her description to have been generally accurate and helpful.

[243] She went on to describe how TD assists in the investigation of the dissemination of child pornography on the BitTorrent network. She indicated that TD communicates with the ICACCOPS database which identifies IP addresses referencing files of interest to child pornography investigators. Her explanation of how the system works was pretty basic. It was not entirely accurate in the sense that it did not set out exactly how suspect IP addresses are identified and how they end up being pushed to investigators located in the area where the addresses are geolocated to.

[244] That said, I find that DC Neller’s description of the manner in which TD receives IP addresses of interest from the ICACCOPS servers and then attempts to connect to a device associated with the IP address was not misleading. It adequately conveyed the substance of the investigation.

[245] DC Neller then adequately, in my view, explained the interaction between her copy of TD and the suspect device in this case. She referenced the files that her copy of TD downloaded between July 18, 2019 and July 19, 2019. She noted that she personally reviewed the files and confirmed that they contained child pornography. She then described the further investigation she did to geolocate the IP address and to determine that it was assigned to Rogers Communications.

[246] DC Neller concluded the ITO with a summary of her reasonable grounds to believe that an offence had been committed (namely possession of child pornography and making available child pornography), that the documents requested from Rogers would afford evidence of the offence and that the documents being sought were in Rogers’ possession.

The Warrant ITO

[247] The ITO filed in support of the warrant application were largely a duplication of the ITO filed in support of the application for a production order. Where it differed, of course, was that it included the subscriber information obtained by the police as a result of Rogers’ response to the production order.

[248] DC Neller also provided evidence about the investigations she conducted after receiving Rogers’ response. Amongst other things she: (1) conducted surveillance of 20 McGinty Court; (2) conducted a search of an OPP database for occurrence reports associated with that residence and determined the identity of the individuals who may reside there; and (3) queried the MTO database to determine who had vehicles registered to 20 McGinty Court.

[249] Again, she set out her reasonable grounds to believe that an offence had been committed and that evidence of the offence was likely to be found at 20 McGinty Court.

[250] In my view, there was nothing misleading in either ITO. Each was adequate to the task.

[251] I accept that DC Neller did not provide detailed technical evidence about how the Roundup Suite of tools function. But I agree with the observations of Justice Fairburn in Nguyen that she was not required to do so. Any jurist reviewing the ITOs would have understood that the OPP used software tools to identify IP addresses associated with child pornography files on the BitTorrent network. He or she would have understood that DC Neller used a program called Torrential Downpour to connect to a device associated with a suspect IP address, that she downloaded files from that device over a 24-hour period and that, upon review, she confirmed that the files contained child pornography.

[252] Those facts are relatively basic. And they support DC Neller’s reasonable grounds. Those reasonable grounds are, in my view, borne out by the facts as they have been revealed through extensive evidence called on the application.

[253] I do not know if the Hughes family had an unsecured wireless network. Not many people do nowadays. Whether they did or did not is immaterial to DC Neller’s reasonable grounds. The suspect IP address was associated with the 20 McGinty Court address. And it was associated with the possession and distribution of child pornography files on the BitTorrent network. Those facts are sufficient to support DC Neller’s reasonable grounds.

[254] I am not satisfied that Mr. Hughes has successfully undermined any of the statutory grounds that supported the issuance of the production order and warrant. I am further not satisfied that the ITOs were misleading, prepared recklessly, or lacking in full, frank and material disclosure.

[255] There is no basis, in short, to find that either the production order or search warrant were invalid. In my view, there were more than sufficient grounds upon which each could have been issued. In the result, the application is dismissed.

C. Boswell J.

Released: January 6, 2023

[^1]: Mr. Hughes actually challenges both the search warrant and a production order directed to Rogers Communications from which the OPP obtained subscriber information connected to his IP address. Both challenges are based on similar arguments, which I will address together in the final part of this ruling.

[^2]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. A Garofoli application is a defence-initiated review of the sufficiency of the evidentiary record that supported the granting of a judicial authorization or warrant. The goal is to exclude evidence the Crown seeks to tender at trial, on the basis that the evidence filed in support of the authorization or warrant failed to meet the standard required by s. 8 of the Charter. See R. v. Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2017 ONCA 722, at endnote 2.

[^3]: An Information to Obtain is a sworn statement – essentially an affidavit – filed by a police officer (described as an “affiant”), in support of an application to obtain a warrant. It will generally set out the place to be searched, the items to be searched for, the offences the items are said to relate to and the time period in which the search is to be conducted. It will also set out facts intended to establish the existence of the thing to be searched for, that the alleged offence has occurred, and that the thing being searched for will afford evidence of the offence.

[^4]: There is one exception to this general statement. A client program called “Tribbler” has a built-in search function. There is no evidence that Tribbler was used in this case.

[^5]: A successful connection can only be made where the target user’s client program is open and active on the network and where it is not protected by a firewall.

[^6]: A “port” is a virtual point associated with a network connection. Ports are managed by a computer’s operating system. There are 65,536 ports available to operating systems. They allow network traffic to go to specific applications running on the computer. As Mr. Versace analogized it, connecting to an IP address is like calling a car dealership’s service department. Connecting to a port is like asking for “Bob” when someone answers.

[^7]: At the time of the decision in Nguyen, Justice Fairburn was a puisne judge of the Superior Court of Justice. She was subsequently elevated to the Court of Appeal and later named Associate Chief Justice of the Province of Ontario. For the sake of simplicity and without meaning any disrespect, I will refer to her throughout as “Fairburn J.”