RULING ON CHARTER APPLICATION

MCVEY J.

Introduction

[1] Pursuant to section 24(2) of the Charter, the Applicant asks me to exclude from evidence a massager seized from his apartment pursuant to a search warrant executed on November 25, 2022. He maintains that on an amplified record, the Information to Obtain (“ITO”) sworn in support of the warrant for his home failed to disclose sufficient grounds for the search, amounting to a breach of section 8 of the Charter.

[2] On November 25, 2024, I dismissed this application with reasons to follow. My reasons are given below. On November 22, 2024, I also dismissed the Applicant’s application for leave to cross-examine the affiant for reasons given orally on November 29, 2024.

[3] Though very serious, the allegations in this case are straightforward. In April 2022, an eleven-year-old complainant advised police that the Applicant had touched him inappropriately when watching him after school. He was unwilling and unable to provide further details at that time. The interviewing officer stopped the interview because the complainant was evidently struggling, and she did not wish to pressure him to speak about the alleged abuse. The police re-interviewed the complainant in October 2022. The complainant was more forthcoming at that time.

[4] The complainant told police that the Applicant had touched his bum and penis repeatedly over his clothing while babysitting him and that on one occasion the Applicant tried to touch him under his clothing by placing his hand up the complainant’s shorts. The complainant further advised police that the Applicant showed him how to use a massager on his penis and that the complainant masturbated with the massager regularly at the Applicant’s home. The Applicant allegedly watched the complainant masturbate with the massager and told the complainant that he “looked good” while doing so and that having sex with the complainant would be like winning the lottery. The complainant also told police that the Applicant later bought him his own sex toy and showed him how to use it.

[5] In November 2022, the police secured a search warrant for the Applicant’s apartment enabling them to seize, among other things, “sex toys, including massagers.” In my view, the corrected ITO discloses ample justification for the search and seizure of those items. As a result, the Applicant has not established a breach of section 8 of the Charter. Even were I wrong, and the ITO rendered deficient because of certain excisions discussed below, I would not have excluded the massager from evidence pursuant to section 24(2) of the Charter.

[6] The complainant also told police that he communicated with the Applicant online while they played video games and that the two texted daily on a messaging platform called Discord. At times, the complainant “spammed” the Applicant with peach and eggplant emojis, symbols that are well-known to represent a bum and penis, respectively. As a result, the police also secured judicial authority to seize electronic devices from the Applicant’s apartment. At the time, however, the police did not seek permission to analyze the devices. In March 2023, the affiant re-applied for a second warrant permitting her to examine the seized electronic devices pursuant to terms and conditions.

[7] Among other things, the Applicant argues that once certain passages are excised from the ITO, it fails to disclose reasonable and probable grounds to believe that the seizure of electronic devices will afford evidence respecting the commission of the offences. At the same time, the Applicant concedes that the warrant to search his apartment is severable as it relates to the intimate items and the electronic devices: see R v Sonne, 2012 ONSC 584; R v Yabarow, 2019 ONSC 3669, at para. 30; R v Grabowski, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434. Given this concession, the fact that the Crown is not seeking to tender any of the evidence recovered from the electronic devices, and my finding on the sufficiency of the ITO as it relates to the intimate items, it is unnecessary for me to address in detail the Applicant’s arguments regarding the adequacy of the ITO as it relates to the seizure of electronic devices.

Excision and amplification

[8] Anyone seeking an ex parte authorization must make full and frank disclosure of material facts from the perspective of both sides. This obligation is a corollary of the privilege of being the only party permitted to tender evidence on an ex parte search warrant application. Where an affiant has not made full and frank disclosure, a reviewing court will correct the ITO through excision and potentially amplification. The reviewing judge will then ask whether the search warrant could have been issued based on the corrected record: R v Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R v Morelli, 2010 SCC 8, at para. 40.

[9] Information that should never have been included in the ITO must always be excised: R v Booth, 2019 ONCA 970, at para. 58. Erroneous information that would otherwise have been appropriate for inclusion had it been presented accurately can sometimes be corrected through amplification. Amplification is always available to an accused where material information is omitted from an ITO that would have undermined a finding of reasonable and probable grounds. The same cannot be said for the Crown. Amplifying an ITO to advance the application is only permitted if the error was made in good faith and was otherwise minor or technical: Booth, at para. 59. Whether an omission can be described as minor or technical will depend on the nature of the error and its significance. If the error cannot be corrected, the erroneous information must be excised: Booth, at para. 63. Amplification cannot be used by the Crown to add information that it could have included but failed to do so: Booth, at para. 66.

Sufficiency of the ITO sworn in support of the search warrant for the Applicant’s apartment

[10] To secure a search warrant pursuant to s. 487 of the Criminal Code, an affiant must demonstrate a belief based on reasonable and probable grounds that 1) an offence has been committed; 2) the things sought to be seized are in the place to be searched; and 3) those things will afford evidence respecting the commission of the offence.

[11] I will address the arguments advanced by the Applicant on each ground below.

Grounds to believe that an offence has been committed

[12] There are overwhelming grounds set out in the ITO supporting the affiant’s sworn belief that numerous offences had been committed against the complainant. For reasons given below, this remains the case even on an amplified record.

[13] The Applicant maintains that paras. 25 and 27 of the ITO are misleading as currently drafted. Consequently, he asks me to excise certain portions of these paragraphs and amplify them in other ways. Even were I to excise and amplify these passages in the manner sought, the resulting ITO would still disclose powerful grounds for the affiant’s belief that certain crimes had been committed.

[14] The Applicant maintains that the second sentence of para. 25 is misleading because it states that the Applicant used a sex toy on himself in the presence of the complainant for the specific purpose of showing the complainant how to use it. In my view, when the complainant’s allegations are viewed as a whole, as set out in the ITO, one could reasonably infer such a purpose. However, even were I wrong, and I was prepared to excise that entire sentence from the ITO as a result, the corrected ITO would still overwhelmingly support the affiant’s belief that offences had been committed against the complainant. The affiant’s belief that crimes were committed did not depend on whether the Applicant allegedly used the massager in front of the complainant “to show” him how to do so.

[15] The same can be said of the third sentence of para. 25. The Applicant argues that it inaccurately states that both the complainant and the Applicant used the massager every day when the complainant only advised the police that he used it every day. Again, even were I to excise this entire sentence along with the first sentence of para. 25, the remaining contents of the ITO overwhelmingly support the affiant’s belief that offences had been committed. In any event, I am prepared to amplify this sentence by replacing “they” with “he”, referring to the complainant only. In my view, using the pronoun “they” was a minor error made in good faith that did not enhance or advance the application when considering the ITO as a whole.

[16] Finally, the Applicant maintains that para. 27 is misleading in two ways: 1) the affiant suggests that the Applicant engaged in “sex talk” with the complainant when the complainant actually told police that he “spammed” the Applicant with peach and eggplant emojis, not that the Applicant reciprocated; and 2) the last sentence implies that the Applicant touched the complainant under his clothing repeatedly when the complainant told police that the Applicant only tried to do so on one occasion.

[17] Even were I to excise both the first and last sentence of para. 27 entirely, the remaining information in the ITO, even in the absence of the second and third sentences of para. 25, amply supports the affiant’s belief that offences had been committed against the complainant. The corrected ITO sets out that the complainant told police that 1) the Applicant touched him repeatedly on his bum and penis over his clothing; 2) the Applicant showed the complainant how to use a massager on his penis and then repeatedly watched the complainant masturbate with it; and 3) the Applicant purchased the complainant a sex toy and taught him how to use it.

[18] I note that the Applicant asks me to excise the above passages of the ITO and amplify them with what he says is a more accurate rendition of the complainant’s statement. However, as I set out above, amplification is not always available to the Crown. Despite the Applicant inviting me to do so, I cannot and have not simply replaced inaccurate portions of the ITO with a more precise version of the complainant’s statement if doing so enhances the application.

Grounds to believe that items sought will be found at the place to be searched

[19] Among other things, the affiant secured a search warrant for “sex toys, including massagers.” The Applicant challenges the affiant’s belief that these items would be found at the place to be searched on two bases. I will deal with both in turn.

[20] First, the Applicant argues that given the passage of time between the alleged offences and November 2022, when the affiant applied for the search warrant, the affiant could not have reasonably believed that “sex toys, including massagers” would still be at the Applicant’s residence. He maintains that because the Applicant purportedly told the complainant that the massager belonged to the Applicant’s mother, the Applicant had no proprietary interest in the massager, rendering it unlikely that the item would still be at the residence over a year later. The Applicant makes a similar argument regarding the sex toy allegedly purchased by the Applicant for the complainant. The Applicant maintains that because the item belonged to the complainant, and there was no evidence that the Applicant ever used it, the affiant could not have reasonably believed that the sex toy would still be at the apartment.

[21] I reject both arguments. In my view, even when excising certain portions of paras. 25 and 27, as set out above, the contents of the corrected ITO support a reasonable belief that the items sought would be found at the place to be searched. Sex toys and massagers are neither consumables nor contraband, both categories of items that give rise to inherent doubt about whether they will remain in one place for an extended period. Massagers and sex toys of the nature described by the complainant are items that are intended to be kept and re-used. Further, the complainant told police that the Applicant used the massager on at least one occasion. The Applicant allegedly had no difficulty sharing a sexual device with the complainant.

[22] I also reject the argument that the complainant “owned” the sex toy and therefore it was unlikely for the Applicant to have kept it. The complainant was approximately ten years old when the Applicant allegedly purchased this item for him. The Applicant allegedly selected, purchased, paid for, collected, and stored the device, all in furtherance of his alleged criminality. One cannot reasonably say that the Applicant did not have a proprietary interest in the item.

[23] Further, an affiant is not required to quantify the chances of finding the evidence sought at the place to be searched. The assessment of reasonable grounds does not depend on mathematical notions of probability: R v Cusick, 2019 ONCA 524. Rather, the question I must ask is whether, “the authorizing justice of the peace, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched”: Cusick, at para. 89.

[24] The excised ITO sets out that the complainant told police that approximately 12-18 months prior to the affiant seeking the warrant, the complainant attended the Applicant’s home regularly; the complainant used a massager on his penis when there; the Applicant showed him how to do so; the Applicant watched the complainant masturbate and told him he “looked good”; the Applicant later purchased the complainant a sex toy; and both the massager and the sex toy were kept at the Applicant’s residence. Considering the above, in my view, the issuing justice reasonably concluded that “sex toys, including massagers” would be found at the Applicant’s apartment.

[25] Of course, as argued by the Applicant, it was altogether possible that the Applicant could have removed either or both items from his apartment since the complainant had last been there. But an affiant need not be certain that evidence will be found. Such a standard is neither feasible nor achievable:

The focus is always to be on the affiant’s belief, and whether it is a reasonably held one, and not whether what is deposed is infallible and destined, without any question, to produce evidence. The affiant must reasonably believe it will; but this is not an exercise in crystal-balling: R v Porter, 2016 ONSC 5589, at para. 33.

[26] See also R v Fuller, 2021 ONCA 411, at para. 8.

[27] The Applicant also argues that the ITO failed to disclose a likelihood that forensic evidence, e.g., bodily fluids and/or DNA, would be recoverable on the devices even were they located at the place to be searched. In my view, this is irrelevant to the sufficiency of the ITO. Massagers or sex toys located in the Applicant’s apartment, if later positively identified by the complainant, would constitute “evidence respecting the commission of the offences” regardless of whether forensic evidence was recovered from them. In other words, the affiant did not have to believe that forensic evidence remained available to secure judicial authority to seize the items. Further, judicial authority to forensically examine those items was not required given that the Applicant possessed no residual privacy interest in them after the police lawfully acquired them: see R v Strong, 2020 ONSC 7528. As a result, the affiant was not required in the ITO to demonstrate a reasonable belief that forensic evidence would later be recovered.

[28] Second, the Applicant argues that the ITO did not sufficiently disclose that the Applicant resided at the place to be searched. I disagree. In the ITO, the affiant described that 1) the complainant’s mother told police that the Applicant lived at the first building on Cooper Street at Metcalfe and the building had awnings; 2) a google street search of that intersection conducted on November 23, 2022, revealed an apartment building at 261 Cooper St. that had a black awning; and 3) as of November 23, 2022, the same day that the affiant submitted her warrant application, the Applicant’s address registered with the Ministry of Transportation of Ontario was 903-261 Cooper Street, Ottawa.

[29] Based on the above, the issuing justice was satisfied that the Applicant still resided at the place to be searched and the affiant had sufficient grounds to believe that a search of that address would afford evidence respecting the commission of the offences. I see no reason to interfere with that reasonable conclusion.

[30] The Applicant argues that the affiant should have included in her ITO the length of time between the date of the warrant application and the date the complainant had last been at the apartment. First, the affiant did include this information. The affiant states in her ITO that the last time the Applicant babysat the complainant was in the summer of 2021. The issuing justice would undoubtedly have been aware that it had been some time since the complainant had last visited the Applicant’s apartment. Second, even if I amplified the ITO to set out the timeline more definitively, I would remain satisfied that the issuing justice, on the amplified record, could have reasonably believed that the Applicant resided at the place to be searched.

Grounds to believe that the items sought will afford evidence respecting the commission of the offences

[31] There is overwhelming evidence set out in the ITO establishing that the sex toys and massagers sought would afford evidence respecting the commission of the offences. Quite frankly, the probative value of such items in the context of this case is self-evident.

[32] After excising and amplifying portions of paras. 25 and 27, as set out above, the corrected ITO still discloses that the complainant advised police that the Applicant taught him how to use a massager on his penis and that the Applicant watched the complainant masturbate with the massager regularly and told him that he “looked good” while doing so. A massager found at the Applicant’s apartment later positively identified by the complainant would obviously afford evidence respecting the commission of the offences. Evidence need not be dispositive of an issue in the case or support only one inference to constitute evidence of this nature.

[33] The corrected ITO also includes that the complainant told police that the Applicant purchased him a sex toy and explained to him how to use it. Therefore, a sex toy found in the Applicant’s apartment meeting the description given by the complainant would constitute corroborative evidence of making sexually explicit material available to a child and would potentially enhance the complainant’s credibility and reliability, generally.

[34] The Applicant argues that a “sex toy” or a “massager” found in the Applicant’s apartment would not afford evidence respecting the commission of the offences unless it met the specific description provided by the complainant; therefore, the search warrant was overbroad because it authorized the seizure of items that did not necessarily meet the more detailed description given by the complainant.

[35] I reject this argument. The complainant was approximately eleven years old when he spoke to police. He was relating to police events that allegedly occurred approximately a year to a year and a half prior to his statement and describing items with which an eleven-year-old child would typically have little to no familiarity. While the complainant described the massager to the police as a “massage gun” that was “shaped like a gun”, in my view, the issuing justice did not have to limit the scope of the warrant to massagers meeting that specific description. This could easily result in the loss of probative evidence should the eleven-year-old complainant have been slightly mistaken regarding the description of the item used to allegedly abuse him.

[36] In any event, even were I wrong, and the warrant overbroad, I would have come nowhere close to excluding the evidence pursuant to section 24(2) of the Charter. The extent or nature of the search conducted of the Applicant’s apartment would not have been any different had the warrant only permitted the seizure of massagers that “looked like a gun” or a sex toy capable of “receiving a penis”. The police would have looked in all the same areas of the Applicant’s apartment, and during their search they would have been permitted to seize other items not listed in the warrant if they reasonably believed that those items had been used in the commission of the offences or would otherwise afford evidence respecting the commission of the offences: section 489(1) of the Criminal Code. Any such breach would have 1) emanated entirely from good faith; 2) had virtually no impact on the accused, and 3) resulted in physical, non-conscriptive evidence.

Electronic Devices

[37] Given the Applicant’s concession that the warrant is severable as it relates to the electronic devices and the intimate items, I need not address in detail the Applicant’s arguments regarding the sufficiency of the grounds sworn in support of seizing electronic devices. Nonetheless, I will make some relatively brief comments.

[38] The Applicant launched two main arguments in this area: 1) the affiant made inaccurate statements at para. 27 of the ITO relating to the alleged communications between the complainant and the Applicant; and 2) given the passage of time between the alleged communications and the date the warrant was sought the issuing justice could not have reasonably believed that evidence would have remained accessible on the devices.

[39] First, I agree that para. 27 overstates the Applicant’s purported participation in sexualized communications with the complainant. The affiant states that the complainant and the Applicant spoke over text regularly about “sex talk” and that the two would send eggplant and peach emojis back and forth. This does not accurately reflect the complainant’s statement to police. The complainant told police that he and the Applicant would speak about “who they liked and stuff” and that the complainant would at times spam the Applicant with “peaches and eggplants” on Discord.

[40] In my view, the affiant should not have described the above as “sex talk” that occurred regularly between the complainant and the Applicant. That was an overstatement unsupported by the complainant’s statement to the police. The Applicant asks me to amplify para. 27 with a more accurate description of the alleged communications. Notwithstanding that invitation, I am not inclined to amplify the ITO in these circumstances. Though I find that the error was made in good faith, I am not satisfied that it is “minor or technical.” The nature of the Applicant’s alleged communications with the complainant, specifically whether they were sexual in nature, is not a peripheral or minor issue. The affiant should have been more careful in this area of her ITO. In my view, the first two lines of para. 27 should be excised.

[41] The question that remains is whether a warrant authorizing the seizure of electronic devices could have been issued based on the corrected ITO. In my view, the amplified ITO discloses ample grounds for the seizure of electronic devices. The corrected ITO sets out that 1) the complainant’s mother told police that the Applicant gave her son money through online gaming; 2) the complainant told police that he and the Applicant texted one another daily using Discord; 3) the complainant told police that the Applicant touched his bum and penis over his clothing regularly; and 4) the complainant told police that the Applicant taught him how to use a massager on his penis and later purchased the complainant a sex toy and showed him how to use it. The corrected ITO also discloses that the Applicant allegedly engaged in other grooming behaviours, like purchasing the complainant gifts and speaking to the complainant about sexual activity that the Applicant allegedly engaged in with another child. In the above circumstances, I completely reject the argument that the police had no basis to examine the online or text-based communications that purportedly took place between the complainant and the Applicant simply because the corrected ITO did not disclose evidence that the communications were explicitly sexual.

[42] Section 487 permits police to seize items that they reasonable believe will “afford evidence respecting the commission of the offences”. This includes, “anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 15; R v P.W., 2020 ONCA 301, at para. 30. The contents of text-based communications between the complainant and the Applicant would obviously be relevant to the nature and evolution of their relationship and the incident under investigation. Further, police are not required to have evidence of sexually explicit communications before they can seize electronic devices in this context. Evidence of grooming is undoubtedly relevant in the context of child sexual abuse allegations, and the Supreme Court has recognized that grooming can easily occur without sexually explicit communications:

I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics: R v Legare, 2009 SCC 56, at para. 29.

[43] Given the allegations as set out in the corrected ITO, it was no leap of logic for the police to have believed that the communications “would afford evidence respecting the commission of the offences.” A grown man accused of sexually abusing a young child was supposedly texting with the child daily and giving him money via online gaming services. In my view, preventing the police from viewing those messages simply because there was no evidence that the communications were sexual in nature would constitute a profound failure of the criminal justice system and an unjustified, complete preference for the privacy rights of an accused over investigative interests. A warrant is an investigative tool to assist police in ascertaining what happened, who did it, and with what mindset: CanadianOxy, at paras. 21-25. To me, one cannot reasonably say that viewing past communications between an adult man and a child that he was allegedly sexually abusing, grooming, and messaging daily would not further an investigation. The police need not already know the nature or contents of the messages before seeking to look at them. Acquiring that information is the entire point of securing a warrant.

[44] Finally, given the passage of time between the purported communications and the warrant application, the Applicant argued that the police could not have reasonably believed that messages would still be found on the devices. This is a stronger argument. However, the affiant set out in her ITO that computer forensic examiners are, at times, able to recover deleted items from a device. There is no bright line rule regarding the passage of time as it relates to the staleness of grounds, and the Court of Appeal has stressed that the assessment of reasonable grounds does not depend on mathematical notions of probability: see Cusick. Notwithstanding the delay, the issuing justice was satisfied that evidence respecting the commission of the offences would be found on the devices. I see no basis to interfere with that conclusion.

[45] Based on the above, the seizure of the Applicant’s electronic devices did not amount to a breach of section 8 of the Charter.

Residual Discretion

[46] Where an affiant’s failure to make full and frank disclosure reveals “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”, a reviewing Court may set aside a search warrant notwithstanding the presence of reasonable and probable grounds: Booth, at para. 65. In the event I upheld the sufficiency of the corrected ITO, the Applicant asked me to nonetheless quash the warrant pursuant to my residual discretion. For reasons given below, I decline to do so.

[47] The errors found in the affiant’s ITO were nuanced, non-consequential and made in good faith. Further, in numerous passages of her ITO, the affiant includes details that, to some extent, minimize the aggravating nature of the alleged offences. For example, the affiant includes that the complainant told the police that the Applicant did not touch his bum and penis every time they were together, and that the Applicant would stop touching him when asked. The affiant was also careful to include that her initial application for a search warrant had been denied.

[48] While an affiant bears a heavy onus to make full and frank disclosure in an ITO, they are often relying on the notes and investigative reports of other officers and their own recollections of potentially lengthy police interviews with witnesses when transcripts are not yet available. Imperfection does not equal deliberate deception. Defence counsel will often be able to identify subtle inaccuracies between the contents of an ITO and the investigative record before an affiant, as counsel for the Applicant has done here. But imperfections on their own are not proof positive of the type of fraudulent misrepresentation that the Court of Appeal says justifies the quashing of an otherwise valid warrant. The inaccuracies identified in this case come nowhere close to establishing such deception.

Conclusion

[49] The corrected ITO disclosed sufficient grounds to seize both the intimate items and the electronic devices. The Application is dismissed.

McVey J.

Released: December 3, 2024

R. v. Bishop, 2024 ONSC 6697

Case Summary

RULING ON CHARTER APPLICATION

Introduction

Excision and amplification

Sufficiency of the ITO sworn in support of the search warrant for the Applicant’s apartment

Grounds to believe that an offence has been committed

Grounds to believe that items sought will be found at the place to be searched

Grounds to believe that the items sought will afford evidence respecting the commission of the offences

Electronic Devices

Residual Discretion

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 2