COURT FILE NO.: CR-24-10000082-0000

DATE: 20241218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ROBERT COFELL

Pamela Santora, for the Crown

Wesley Dutcher-Walls, for the accused

HEARD: October 1-3, 2024

REASONS FOR JUDGMENT ON PRE-TRIAL APPLICATIONS

VERMETTE J.

[1] The accused, Robert Cofell, stands charged with possessing, accessing and making available child pornography, contrary to subsections 163.1(4), 163.1(4.1) and 163.1(2) of the Criminal Code. His trial is scheduled to start on February 10, 2025.

[2] Two applications are before me. The Crown has brought an application for a ruling that the statement that Mr. Cofell made to the police on January 25, 2023 at 9:36 a.m. (“Statement”) was made voluntarily, and for an order permitting the use of the Statement for the purposes of cross-examination.

[3] Mr. Cofell has brought an application pursuant to sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) for an order excluding the following evidence at trial: (a) all evidence the police obtained through the use of the Child Protection System; (b) all evidence the police obtained through two Bell Canada production orders; (c) all evidence the police obtained from the search of Mr. Cofell’s home on January 25, 2023, including all evidence the police discovered through their examinations of the seized devices; (d) all statements made by Mr. Cofell to the police; and (e) all officer testimony about the categories above.

[4] On November 18, 2024, I granted the Crown’s application and dismissed Mr. Cofell’s application, with reasons to follow. The following are my reasons.

I. BACKGROUND

[5] The evidence before me on the applications included the following:

a. The viva voce evidence of two police officers involved in the investigation, Detective Michael Sabadin, the officer in charge, and Detective Constable (“DC”) Jeff Kidd. Both Detective Sabadin and DC Kidd are members of the Internet Child Exploitation Unit of the Toronto Police Service (“TPS”).

b. Preliminary inquiry transcripts of the evidence given by the same two officers and by the following additional officers: Detective Lesley Zimmer, DC Brendan Alexa, Detective Vijay Shetty, and DC Laura McFatridge. The preliminary inquiry was held on January 23-24, 2024. DC McFatridge was, on consent, examined for discovery purposes at a later date, i.e., on March 5, 2024.

c. Various exhibits, including transcripts of the Statement and two other statements made by Mr. Cofell earlier on January 25, 2023; Detective Sabadin’s Informations to Obtain a Production Order and Information to Obtain a Search Warrant, as well as the associated production orders and search warrant; a forensic examination report; a document on the Child Protection System and Child Rescue Coalition; and various screenshots, photos and transcribed notes.

[6] The following is a summary of the relevant facts based on the evidence before me.

A. Relevant programs, systems and technology

[7] An Internet Protocol address (“IP address”) is like a mailing address in relation to data. IP addresses play a crucial role in the inherent structure of the Internet and are the means by which Internet-connected devices both send and receive data: see R. v. Bykovets, 2024 SCC 6 at para. 69.

[8] IP addresses are linked to Internet service providers (“ISP”) and owned by them. Publicly available online databases allow IP addresses to be geographically located: see R. v. Nguyen, 2017 ONSC 1341 at para. 10 (“Nguyen”).

[9] A Globally Unique Identifier (“GUID”) is a special type of identifier used in software applications to provide a reference number, which is unique.

[10] An IP address is linked to one modem in a physical location, and a GUID is linked to a specific piece of software on a specific device.

[11] Peer-to-peer (“P2P”) networks operate in a way that allows computers to connect for different cooperative endeavours, such as file sharing. Files are stored by individual users and made available directly to other users, without being stored on a third-party platform. Users can obtain all of a file that they are seeking from one other user, or they can obtain parts of the file from many different users to assemble the whole file. P2P networks allow a user to be able to search for content, review search results, and download files using a direct connection to another computer. The identities of users of P2P networks are not apparent to other users. See R. v. El-Halfawi, 2021 ONCJ 462 at para. 22 (“El-Halfawi”).

[12] Gnutella is a decentralized P2P network. When a user types a search term on the system, that term is sent to “ultrapeers”, who are peers who facilitate searching. Ultrapeers forward the search term only to those having files with that search term. The individual peers having the term then respond back to the requesting peer with the name, size and hash value of the file they have, their IP address, their GUID and other information.

[13] Shareaza is an application used to access a P2P network, in this case, the Gnutella network. The default setting of Shareaza, when installed, is to be sharing files. The sharing aspect of Shareaza is an opt-out system, not an opt-in one. Steps have to be taken in order to stop sharing. Each installation or update of a P2P network software like Shareaza creates a new GUID. Thus, a GUID is assigned when the Shareaza software is installed on a computer and each time that it is reinstalled (e.g., after being uninstalled).

[14] Shareaza LE is a law enforcement version of the publicly available Shareaza software. Shareaza LE is designed to allow investigators to browse and download directly from a particular single source IP address. Shareaza LE has less functions than the regular version of Shareaza. Among other things, it makes a direct connection with one peer only as opposed to connecting with multiple peers, and it does not allow sharing on the part of law enforcement.

[15] Another tool used by law enforcement is the Child Protection System (“CPS”). As noted by Boswell J. in R. v. Hughes, 2023 ONSC 109 at para. 7 (“Hughes”):

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.

[16] CPS is such a tool. CPS was developed by the Child Rescue Coalition (“CRC”). CRC is a nonprofit organization headquartered in Florida in the United States. CRC has developed technology for law enforcement, including CPS, which is provided free of charge to law enforcement to identify alleged child predators. CPS is used in every state in the United States and in approximately 100 other countries. To gain access to CPS, sworn investigators must attend a training course taught by credentialed instructor. Detective Sabadin has been trained to provide training to other officers with respect to CPS. Trained officers have individual licences to access CPS.

[17] CPS scans P2P networks for known child sexual abuse material (“CSAM”) content. CPS matches content found on P2P networks to CSAM content using the hash values[^1] of such CSAM content. CPS gathers and analyzes the data and presents it to law enforcement. More specifically, CPS presents to investigators a list of GUIDs and IP addresses that CPS has identified as sharing CSAM, which CPS flags as “Child Notable”. The expression “Child Notable” is used, among other things, because the definition of “child pornography” can differ from country to country, and CPS is used in many different countries. Therefore, a Canadian law enforcement officer needs to review files flagged as “Child Notable” to ensure that they meet the Canadian definition of child pornography in the Criminal Code. See Nguyen at para. 31.

[18] CPS only gathers public information made available by the user sharing files over the P2P network: see El-Halfawi at para. 29.

[19] CPS is described as follows in Detective Sabadin’s Information to Obtain a Search Warrant:

(CPS) is a secure Internet based law enforcement database that is accessible to licensed law enforcement officers. The database itself is housed in the United States contains investigative de-confliction information and investigative leads. Law enforcement personnel can contribute data themselves by categorizing unknown files and submitting the relevant hash values. Trained Law enforcement officers can also run law enforcement software to conduct investigations on the Internet. The data generated from the use of certain law enforcement software tools contribute to the database. Other tools such as Internet crawlers or bots, peer to peer crawlers, and other various similar tools used on other networks, gather information over the Internet and can be reported back to the database.

CPS logs all the activity generated by automated crawlers, including IP addresses, dates, times and hash values, where a specific IP address has been identified broadcasting as a download candidate for suspected Child Pornography files on peer to peer networks.

Law enforcement officers can access the CPS database and run queries, such as IP address information, hash value information, usernames, and GUIDS […]. Additionally Law Enforcement officers can launch certain law enforcement software to conduct and manage investigations.

[20] When a query or search is run by the police in CPS using a known IP address, the results of the search will show the information that was previously logged or flagged by CPS with respect to that IP address, i.e., past occurrences where that IP address appeared to have been sharing “Child Notable” materials.

B. Beginning of the investigation and two production orders

[21] As stated above, Detective Sabadin is a trained CPS user. As a result of his settings in CPS, the system identifies for him users whose IP addresses suggest that they are in Toronto.

[22] On September 27, 2022, Detective Sabadin accessed CPS and identified a user of concern based on the information that was presented to him by CPS. CPS provided him with both an IP address (“147 IP Address”) and a GUID. Detective Sabadin initiated an investigation into the 147 IP Address and the GUID. In the course of his investigation, he watched the 147 IP Address and GUID for approximately five weeks. During that time period, he observed approximately 154 files being advertised for download and that could be downloaded by anyone who was connected to the P2P network. Of the 154 files advertised for download, 61 were suspected to be CSAM, based on the information provided by CPS.

[23] Detective Sabadin, using Shareaza LE, downloaded five complete files from the user in question between September 30 and October 18, 2022. Detective Sabadin came to the view that four of the files met the definition of child pornography in the Criminal Code. They were all videos of different lengths (between two minutes and 50 minutes). While the fifth file contained an explicit image, Detective Sabadin could not definitively say that it involved a child under the age of 18.

[24] Detective Sabadin determined that the 147 IP Address belonged to Bell Canada and resolved to Toronto, Ontario.

[25] After downloading the five files, Detective Sabadin sought and obtained a production order for Bell Canada records under section 487.014 of the Criminal Code for the purpose of identifying the subscriber of the 147 IP Address from which he had downloaded the five files. The production order was granted on October 26, 2022 by a Justice of the Peace. The requested records included, among other things, the last known customer name and address of the account holder associated with Bell Canada for the 147 IP Address used on September 30, 2022.

[26] The signed production order was sent to Bell Canada on October 27, 2022. On November 21, 2022, Bell Canada identified a name, Robert Cofell, an address in Toronto, an e-mail address, and other information in response to the production order. Bell Canada advised that the account was still active.

[27] On November 21, 2022, Detective Sabadin conducted various police database checks on the name Robert Cofell. One of the occurrences referred to a driving complaint made by Mr. Cofell. The occurrence mentioned that the report came from an IP address different from the one used for the production order (“217 IP Address”).

[28] On January 16, 2023, Detective Sabadin conducted a search on CPS for the 217 IP Address revealed by the police database checks. The results of the search on CPS showed that the 217 IP Address was associated with a particular GUID between October 29 and November 24, 2019. In relation to that GUID, CPS observed 535 files, 173 of which were flagged as “Child Notable”.

[29] On December 15, 2022, Detective Sabadin identified a user of concern based on what was presented to him by CPS. CPS provided him with an IP address (“243 IP Address”) and two GUIDs.

[30] Detective Sabadin, using Shareaza LE, downloaded nine files from the targeted user. After revieing the files, he came to the view that four of the files met the definition of child pornography in the Criminal Code, but that the remaining five files did not.

[31] Detective Sabadin determined that the 243 IP Address belonged to Bell Canada and resolved to Toronto, Ontario.

[32] Detective Sabadin sought and obtained a production order for Bell Canada records under section 487.014 of the Criminal Code for the purpose of identifying the subscriber of the 243 IP Address from which he had downloaded the nine files. The requested production order for Bell Canada records was granted by a Justice of the Peace on December 22, 2022. The evidence before me is unclear as to the information obtained in response to this production order from Bell Canada, but Detective Sabadin confirmed at the hearing that the 243 IP Address was associated with Mr. Cofell’s address. However, I note that the 243 IP Address and the GUIDs mentioned in the second production order are not referred to in Detective Sabadin’s Information to Obtain a Search Warrant.

C. Search warrant

[33] Detective Sabadin subsequently sought and obtained a search warrant for the address provided by Bell Canada. The search warrant was granted by a Justice of the Peace on January 19, 2023.

[34] The search warrant allowed the data in any digital device seized to be examined for the following:

a. Data relevant to the child pornography offences listed in the warrant, including: (i) images and videos meeting the definition of child pornography in the Criminal Code; (ii) electronic information which shows a history of internet activities, including logs and files that will afford evidence of the offences in issue; (iii) files that may assist in identifying other offenders or other victims who may be providing the suspect with child pornography; and (iv) passwords, passcodes and encryption keys needed to access any of the preceding data.

b. Data relating to: (i) ownership, possession, access, use or control of the devices and/or their data; (ii) the configuration of the device’s systems and programs; (iii) electronic evidence of social media accounts and e-mail addresses.

c. Data relating to Shareaza, the 147 IP Address (presented by CPS on September 27, 2022) and the 217 IP Address (located through police database checks), the GUID presented by CPS on September 27, 2022, modem-related information provided by Bell Canada in response to the first production order, the Bell Canada account information in the name of Robert Cofell, and the five files downloaded by Detective Sabadin between September 30 and October 18, 2022 in relation to the 147 IP Address.

D. Execution of the search warrant and detention of Mr. Cofell

[35] The search warrant was executed on January 25, 2023. The police arrived at Mr. Cofell’s residence at approximately 6:15 a.m. Ten officers were part of the team for the execution of the search warrant. Before going to Mr. Cofell’s residence, the police officers had a briefing at the offices of the TPS at 40 College Street. Detective Sabadin did the briefing.

[36] The police did not have any safety concerns before the execution of the search warrant. The police also had no indication, either before or after the execution of the search warrant, that this case involved the use of a cloud storage service. Further, Detective Sabadin stated that he did not have the necessary grounds to arrest Mr. Cofell before the execution of the search warrant.

[37] Mr. Cofell was the only person present in the residence when the police arrived. He was wearing a t-shirt and pajama pants. Mr. Cofell did not change until after his arrest.

[38] There is an audio recording of an exchange between Detective Sabadin and Mr. Cofell starting at 6:17 a.m. and ending at 6:21 a.m. Detective Sabadin informed Mr. Cofell that the police was there to execute a search warrant in relation to child pornography offences. He then stated the following:

So here’s the warrant, if you want to take a look at that. Um, at this time, we’re not, you’re not under arrest. You’re under detention here. It’s very tight area, so we have to kind of limit your movements in here, uh, for our safety and for your safety. However, you still have the same rights as if you were under arrest, so you don’t have to speak to me in regards to these offences right now, you have the right to speak to a lawyer, if you would like.

[39] There was then a discussion about whether Mr. Cofell wanted to speak to a lawyer and he was informed that he could be put in contact with duty counsel. Ultimately, Detective Sabadin told Mr. Cofell not to speak about the investigation until he made a decision as to whether he wanted to speak to a lawyer or not.

[40] At some point, Mr. Cofell stated that he had a question and said: “Um, I’m probably not going to work, right?” Detective Sabadin then confirmed his understanding that Mr. Cofell had to go to work in an hour and stated that the police was probably going to be there for more than an hour. He told Mr. Cofell that he was most likely not going to be going to work and he asked whether there was someone that Mr. Cofell needed to notify. When Mr. Cofell answered in the affirmative, Detective Sabadin said that they could make arrangements for that. Mr. Cofell was ultimately permitted to call his employer.

[41] Mr. Cofell was not physically restrained during his detention.

[42] As set out above, the only reasons provided to Mr. Cofell for his detention was that the area was tight and his movements had to be limited for the safety of everyone involved. Detective Sabadin did not record any reasons for the detention in his notes.

[43] During his testimony, Detective Sabadin gave the following reasons for his decision to detain Mr. Cofell:

a. The apartment was very cluttered, and Mr. Cofell’s movements within the residence had to be restrained. Detective Sabadin acknowledged, however, that this was not a reason for not permitting Mr. Cofell to leave the residence.

b. Safety concerns for Mr. Cofell and potential for self-harm. Detective Sabadin stated that there was an elevated risk of self-harm for the type of offences involved in this case. Detective Sabadin also noted that it was very cold that day and that Mr. Cofell could not just sit outside. However, Detective Sabadin acknowledged that he was not aware of Mr. Cofell’s mental health and that there was no reason to believe that Mr. Cofell was suicidal.

c. Safety concerns with respect to allowing Mr. Cofell to go to work given that his work as a bus driver involved contact with children. However, Detective Sabadin acknowledged that he knew that Mr. Cofell was (or had been) a bus driver prior to the execution of the search warrant, and there was no reason to believe that Mr. Cofell had abused a child.

[44] The evidence of the various officers confirms that not many officers were able to be inside Mr. Cofell’s residence at the same time because there were things everywhere and not enough room to move. Some of the officers were outside of the residence for the majority of the time that they spent there. The property/exhibits officer had to set up outside as there was not enough room inside.

[45] During the execution of the search warrant, Mr. Cofell smoked cigarettes, used the washroom, and was provided with the medications that he had to take.

[46] DC Kidd was the forensic examiner / technical officer assigned to the search warrant. As such, his role during the execution of the warrant included examining “live” devices (i.e., devices that were powered and operating), triaging devices located at the scene, previewing devices, and giving advice to the other officers regarding preservation of evidence.

[47] During the execution of the search warrant, DC Kidd took a look at, or “previewed”, four external hard drives, one phone and two drives that were in a desktop. There was only one user account on the computer. At 7:13 a.m., in the course of his preview of the drives located in the desktop, DC Kidd discovered what he suspected to be CSAM. He informed Detective Sabadin of what he had found, and Detective Sabadin came and looked at it. Detective Sabadin arrested Mr. Cofell shortly thereafter. DC Kidd stopped the on-scene previewing of devices at that time. Ultimately, ten devices were seized. The devices that were seized were brought to the police laboratory for examination there.

E. Arrest of Mr. Cofell

[48] At 7:15 a.m., Detective Sabadin placed Mr. Cofell under arrest for possession of child pornography (x2), accessing child pornography (x2) and distributing child pornography (x3).

[49] Detective Sabadin turned on the audio recording system when he placed Mr. Cofell under arrest. Detective Sabadin informed Mr. Cofell of his right to retain and instruct counsel. Mr. Cofell said that he wanted to call a lawyer and he asked whether he was going to be allowed to make more than one telephone call. Detective Sabadin told him that he was going to be able to make reasonable use of the phone. Detective Sabadin cautioned Mr. Cofell not to say anything in regards to the investigation until Mr. Cofell spoke to a lawyer.

[50] The recording ends as follows:

COFELL: Yeah. Can I put on pants, or no?

SABADIN: So, yeah, we’re gonna, we’re gonna get you some, as much privacy as we can here. We can get you your pants on. We can get you a sweatshirt. You know, you said you had to go to the bathroom.

COFELL: I might have to wait on that.

SABADIN: Okay, no worries, well you’ll be, well you’ll obviously be able to allow to use it at the washrooms and we’ll get you some food when we get there, okay? So I’m gonna turn this off now and then we’ll get that process going okay? It’s 7:18.

[51] Mr. Cofell was given the opportunity to go into the bathroom to get changed.

F. Mr. Cofell’s Statement

[52] At 9:36 a.m., Detective Sabadin and Detective Shetty escorted Mr. Cofell to a “soft interview room” and spoke to him for 57 minutes. Detective Sabadin’s evidence at the preliminary inquiry was that he had asked Mr. Cofell before the interview started whether he had eaten or not, but he could not recall Mr. Cofell’s response. Mr. Cofell was not physically restrained during the interview.

[53] At the beginning of the interview, Mr. Cofell confirmed that he did not have a lawyer but that he had spoken with duty counsel. He also stated that he understood that he had the right to remain silent. The following exchange then took place:

SABADIN: Yeah, yeah. So your right to remain silent, we’re not going to push you to talk to us. We’re going to have a conversation with you. If you choose to be a part of that conversation, that’s entirely up to you. Um, I do ask that you, you know, if you don’t want to say something, then just tell me that, don’t make up stuff, you know what I mean? Um, so, from the moment you opened that door and had contact with us until now, were you treated unfairly at any time?

COFELL: No.

SABADIN: Okay, did anyone promise you or threaten you that you have to talk to us?

COFELL: No.

[54] At some point during the interview, Detective Sabadin said that he understood that there was a stigma attached to the type of offences with which Mr. Cofell was charged. Mr. Cofell then commented that there was a worse stigma “[w]hen somebody actually does that.”

[55] At approximately the mid-point of the interview, the following exchange took place:

COFELL: Sorry man, I’m not yawning at you.

SABADIN: No, I get it.

COFELL: But I haven’t eaten yet so.

SABADIN: I get it. Okay, um, when we’re done here, I’ll see that we get you a sandwich or something, we’ll have something here, so we’ll get you something to eat and something to drink as well.

COFELL: That would be good.

The interview continued. Detective Sabadin repeated later during the interview that they were going to “look into getting you some food” after bringing Mr. Cofell back to his cell.

[56] Later, Detective Shetty said the following:

SHETTY: Yeah, just, just, just a couple of quick things. So one thing that, like Mike mentioned before is just kind of, like, we get to know you. Like, you don’t need to really say too much. The evidence is there, right? It’s digital, and they always say the best way to describe it is, like, you know, when it comes to, like, the file names and the values of them, it’s more accurate than DNA, right? So if they match, and they do, you kind of know, so there’s not really much to say. Like, we know why you’re arrested. You know why you’re arrested, and that is what it is. But our biggest concern, especially, like, the reason why my [unclear] work as offices, you know, we want to make sure that kids are safe.

COFELL: Yes.

SHETTY: Right? And like, we kind of distinguish it when you kind of draw that line down that sand, it’s the question of which side. And not to say that one is better than the other, but one really is, right? Are you someone that takes the opportunity to do things to kids, or are you someone that just watches, right? And what we have to figure out is, which side of the sand do you sit on, right? And…

COFELL: Well, never have I done anything to a child. Never would I do anything to a child. Um, there was many years ago, um, when I stumbled on shit before, years ago. […]

[57] Towards the end of the interview, Mr. Cofell asked many questions of Detective Sabadin regarding the process and next steps. The interview ended as follows:

SABADIN: So yeah. Anything else on your mind?

COFELL: I don’t know, food. And then probably after food I’ll need to use the washroom.

SABADIN: Yeah, for sure.

COFELL: Cause I haven’t had to use it yet, which is really weird.

SABADIN: So when we go back to your cell, we’re still gonna have the audio recorder to, uh, to get there, just so you’re aware. I’m going to turn, uh, try to turn this off now.

[58] The interview ended at approximately 10:30 a.m.

G. Evidence of DC Kidd on technological issues

[59] DC Kidd explained that when devices are found, the evidence on such devices needs to be preserved. Different steps are taken to do so depending on whether the device is “live” or not. Live devices are usually looked at at the scene because the evidence may be lost, for example, if a computer is turned off. There can also be concerns with respect to access to cloud-based storage. In this case, the desktop computer in Mr. Cofell’s residence was not turned on when the police arrived at Mr. Cofell’s residence. The desktop had two internal hard drives, and four external hard drives connected to it through USB cords. Given that the computer was off, the hard drives could be removed and disconnected without any issue.

[60] DC Kidd said that when a warrant is executed, there may be concerns if people are close to devices that the police may want to seize. He also identified a concern with respect to cloud storage, that is, a person can access and delete contents in cloud storage from a device that is not seized by the police. DC Kidd acknowledged that there was no indication – either before or after the execution of the search warrant – that cloud storage was used in this case.

[61] DC Kidd stated that there is minimal jeopardy involved with respect to evidence once devices have been seized and preserved. He said that there was nothing in this investigation that concerned him regarding any jeopardy to the evidence.

[62] When a device is seized, a forensic copy is made. The police conduct its examination on the copy. Various software programs are then used by the police to process and extract data from the forensic copies. They include AXIOM – which is used to extract and process user activity on a device – and LACE – which extracts images and videos. AXIOM is a sorting tool that helps organizing the data. In this case, AXIOM was used to examine the two hard drives located in the desktop.

[63] DC Kidd testified that no steps were taken in this case to narrow the scope of the forensic images that were created. The police took complete forensic images. Further, no steps were taken to narrow the data that AXIOM extracted and organized. According to DC Kidd, it is not possible to narrow the searches at that stage because the police does not know what they have.

[64] After a complete extraction of the data has been done, it is turned over to the officer in charge to conduct their investigation. DC Kidd is not involved in the examination of the contents of the device, except for quality control purposes.

[65] In this case, DC Kidd provided the AXIOM and LACE extractions to Detective Sabadin.

[66] DC Kidd expressed the view that dates and times do not constitute an effective filter to narrow the scope of data extraction when doing an investigation because dates can be changed or they may not be accurate or available.

[67] During the preliminary inquiry, DC Kidd stated that by default, Shareaza uses the download folder on the C drive. In this case, the designated download folder was on the D drive, which was a user-generated change. DC Kidd also stated that during the installation process of Shareaza, it is very clear that it is a file-sharing application and that the user will be sharing and not just downloading. The sharing function is on by default, but it can be turned off or “manipulated” so that it is not sharing at a later point in time. DC Kidd explained that “chunks” of files that are being downloaded are being shared right away and this cannot be stopped during the transfer process. However, once the download is completed, the downloaded file can be moved to a different folder and the sharing would stop at that point. The user can also go into the user interface of the Shareaza program and deselect the sharing option with respect to that folder or the individual file.

H. Examination and review of seized devices by Detective Sabadin

[68] On February 16, 2023, Detective Sabadin examined the contents of seven of the digital devices seized from Mr. Cofell’s residence, for approximately three hours. He spent four minutes on the first device; three minutes on the second device; 16 minutes on the third device, which Detective Sabadin was unable to read; 21 minutes on the fourth device; one hour and 33 minutes on the fifth device; seven minutes on the sixth device; and six minutes on the seventh device, which had nothing on it.

[69] With respect to the LACE-extracted data, Detective Sabadin used the LACE software to review images and videos from the desktop computer seized from Mr. Cofell’s residence and to help him categorize them. Detective Sabadin believes that he reviewed every single image and video on the devices. He said that he turned his mind to the scope of the search warrant when he conducted his LACE data review. He did not have a concern about reviewing every single image and video.

[70] During his review of the LACE-extracted data, Detective Sabadin identified 294 images that he categorized as child pornography, which included 229 duplicates and 65 unique images. He also categorized 45 videos as child pornography, which were all unique. During his review, Detective Sabadin did not locate any of the videos that he downloaded using Shareaza LE as part of his initial investigation.

[71] As stated above, Detective Sabadin also received AXIOM extractions from DC Kidd. It was up to Detective Sabadin to decide what he was going to review with respect to that data. He said that he started with a search for Shareaza. He then went through the AXIOM report and previewed materials. Detective Sabadin explained during his testimony how he would look at the different categories of materials and what was (and was not) of interest to him. He did not review every single file in the extracted data that he received. Based on the scope of the warrant, he believes that he could have reviewed more files than he actually did. At this time, he does not specifically remember which folders he looked at.

[72] During his review, Detective Sabadin also looked at the search terms that were put into the Shareaza software on the desktop that was seized. The search terms included, among other things, “PTHC”, which stands for pre-teen hardcore.

[73] Detective Sabadin’s understanding of the scope of the search warrant was that he could look anywhere on the devices seized. He said that he would look for: (a) CSAM if files had an explicit CSAM name; (b) CSAM where CSAM could be potentially hidden; (c) evidence of ownership and possession; and (d) evidence pertaining to the investigation, e.g., evidence regarding Shareaza.

[74] Detective Sabadin stated that sometimes, people hide files in Word or PDF documents. Because of that, he would go through some of these files. If, after looking at some of these files, he came to the conclusion that there were no hidden files in Word of PDF documents, he would then not continue looking at them.

[75] Detective Sabadin also stated that he does not use dates to filter documents during his review because dates can be modified and not all images and videos have dates attached to them.

[76] Detective Sabadin did not review every single file on the devices that were seized. His notes do not record exactly where he did or did not look on the digital devices that were seized. For most of the devices, his notes only include the tag number for the device, the time at which the device was looked at, and a quick description of what was on the device (e.g., music, movies, adult pornography, etc.). For the two hard drives found in the desktop, Detective Sabadin took some screen captures.

[77] Detective Sabadin did not use to take traditional memo book notes of his LACE review. He relied on the digital data and the report that he generated. He has since changed his practice in this regard. As for his AXIOM review, Detective Sabadin used to rely on screen captures and the reports that he would generate after his review. He has also changed his practice in this regard.

II. DISCUSSION

[78] I will first deal with the Crown’s application and the issue of the voluntariness of the Statement. I will then turn to the issues raised in Mr. Cofell’s application: whether the use of CPS infringes section 8 of the Charter; whether the police failed to comply with the scope of the search warrant, thereby infringing section 8; whether Mr. Cofell’s detention was arbitrary and infringed section 9 of the Charter; and whether evidence should be excluded under section 24(2) of the Charter.

A. Voluntariness

1. General legal principles

[79] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary: see R. v. Beaver, 2022 SCC 54 at para. 45 (“Beaver”).

[80] The confessions rule has two goals: protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes: see R. v. Oickle, 2000 SCC 38 at para. 33 (“Oickle”).

[81] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry. See Beaver at para. 48.

[82] The types of threats or promises that will raise a reasonable doubt as to the voluntariness of a confession are inducements that, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. However, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and their circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement. See Oickle at paras. 57-58 and R. v. Spencer, 2007 SCC 11 at para. 15.

[83] The concept of “oppressive conditions” focuses on the atmosphere of a police interview. The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a prolonged period of time. See Beaver at para. 49 and Oickle at para. 60. Another possible source of oppressive conditions is the police use of non-existent evidence. See Oickle at para. 61. Oppressive conditions can make a suspect want to escape those conditions or could overbear the suspect’s will to the point that they come to doubt their own memory, believe the relentless accusations made by the police, and give an induced confession. See Oickle at para. 58.

[84] The operating mind test requires that the accused possess a limited degree of cognitive ability to understand what they are saying and to comprehend that they are saying it to police officers who can use it to their detriment and as evidence in criminal proceedings. See Oickle at para. 63.

[85] A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three inquiries (threats or promises, oppression and operating mind), this consideration is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. In order for the confessions rule to be triggered, the conduct of the police must be such as to “shock the community”. See Oickle at paras. 65-66.

2. Positions of the parties

[86] The Crown’s position is that the statements made by Mr. Cofell to police were voluntary. The Crown submits that Mr. Cofell was not threatened, ill-treated or otherwise oppressed at any time. The Crown points out that Mr. Cofell was not questioned for a lengthy period of time or in an aggressive manner.

[87] The Crown states that Mr. Cofell was not offered any promises, favours or inducements, or otherwise pressured into giving a statement to police. The Crown submits that there is no evidence of police trickery, and no evidence that Mr. Cofell suffered from any inability that would impact the requirement of an operating mind. The Crown notes that the Statement was given after Mr. Cofell was cautioned and spoke with counsel.

[88] The defence submits that when considering the voluntariness of the Statement, the full timeline of the police’s interaction with Mr. Cofell needs to be considered. The defence’s position is that there are concerns which, cumulatively, prevent the Crown from proving the voluntariness of the Statement beyond a reasonable doubt.

[89] The defence argues that by telling Mr. Cofell that they had very reliable evidence and by asking him to confirm that he was not a hands-on child abuser, the police were inducing Mr. Cofell to make an inculpatory statement for a “lesser” offence. The defence states that statements regarding the reliability of the evidence could create desperation for a detained person. The defence also submits that the concern about inducement is heightened by the statements made by the police that they were not judging Mr. Cofell and regarding the higher stigma attached to hands-on abuse charges. According to the defence, such statements create confusion as to what would not happen should Mr. Cofell admit something.

[90] The defence submits that what would constitute an inducement for Mr. Cofell has to be considered in light of the circumstances in which he was at the time, which were oppressive. The defence points out that Mr. Cofell was told at 7:18 a.m., before he was brought to the police station, that the police would get him some food at the station, but he did not get any food before or during the interview.

[91] In reply, the Crown states that the police did not create any inducement. Nothing was offered during the discussion about stigma and there was nothing apparent to be gained. The Crown submits that there is nothing confusing about statements that the police officers were not judging Mr. Cofell because the Court judges, not police officers. The Crown argues that there were no outward signs of desperation, and any sense of desperation was not created by the officers. The Crown points out that the strength of the case was a reality, and Mr. Cofell was given an opportunity to respond if he wanted to.

3. Analysis

[92] I find that the Crown has proved beyond a reasonable doubt that the Statement was voluntary. Considering all of the circumstances surrounding the making of the Statement, I am satisfied that the Statement is reliable and the police did not do anything that would have unfairly deprived Mr. Cofell of his free choice to speak to the police.

[93] Detectives Sabadin and Shetty did not make any threat, promise or inducement. The discussion about stigma did not create any inducement. As noted in Oickle, the fact that the police may downplay the moral culpability of an offence is not problematic as long as there is no suggestion by the police that a confession would minimize the legal consequences of the accused’s crimes: see Oickle at paras. 74, 77. No such suggestion was made in this case and there was never any quid pro quo offered by the police: see Oickle at para. 57. As for the statements that the police officers were not judging Mr. Cofell, I agree with the Crown’s submission that there is nothing wrong about these statements. It is not the role of the police to judge an accused, morally or otherwise. Further, and in any event, Detective Sabadin acknowledged early in the interview that there was stigma attached to the type of offences with which Mr. Cofell was charged. In my view, no confusion was created by these statements, and the Statement does not reflect any confusion on the part of Mr. Cofell.

[94] The statements that the police had very reliable evidence – including digital evidence located on Mr. Cofell’s devices – reflected the police officers’ view of the case, which was supported by facts. These statements did not involve any quid pro quo offer by the police. I also agree with the Crown that there is no indication of desperation on the part of Mr. Cofell, and that any sense of desperation flowing from what the police found prior to the Statement would have been self-generated by Mr. Cofell and not created by anything said or done by Detectives Sabadin and Shetty.

[95] As for the atmosphere of the interview, it was not oppressive. The interview took place after Mr. Cofell had the opportunity to speak to duty counsel, it was not very long and the police officers were not aggressive. The interview was conversational in nature and the officers were respectful to Mr. Cofell. Mr. Cofell asked many questions of the officers, which shows that he was not intimidated. The fact that the police did not give food to Mr. Cofell until after the interview, more than three hours after they left Mr. Cofell’s residence early in the morning, raises some concerns. However, Mr. Cofell did not ask for food during the interview. In the middle of the interview, Mr. Cofell pointed out that he had not eaten yet, but he did not ask for anything. In response to Detective Sabadin’s statement that they would get him something to eat when they were done, Mr. Cofell responded: “That would be good.” Mr. Cofell arguably asked for food at the very end of the interview, after being told twice that he would be getting food after the interview. At that time, Mr. Cofell mentioned food after being asked if there was “[a]nything else on [his] mind”. His response was: “I don’t know, food.” This does not reflect any time-sensitivity or great discomfort. I also note that Mr. Cofell did not ask for food before, even though he was comfortable enough to ask about other things. Thus, there is no basis to conclude that the lack of food overbore Mr. Cofell’s will to the point that he gave an induced statement or that he was deprived of his free choice to speak or not to the police.

[96] In my view, the concerns identified by the defence, even when taken together, are very far from being strong enough to raise a reasonable doubt about whether the will of Mr. Cofell was overborne. See Oickle at para. 57.

[97] In addition to finding that there were no threats, promises, inducements or oppressive conditions, I conclude that Mr. Cofell had an operating mind when he made the Statement – he understood what was going on – and that there was no use of trickery by the police to obtain the Statement. I also note that the Statement was given after Mr. Cofell was cautioned and spoke with duty counsel.

[98] Accordingly, I find beyond a reasonable doubt that the Statement was made voluntarily and, as a result, the Statement can be used at trial for the purpose of cross-examination.

B. Section 8 – Use of CPS

[99] The defence argues that any use of CPS constitutes a search because it constitutes the use of a law enforcement tool to connect online activity to IP addresses. In support of this argument, the defence relies heavily on the decision of the Supreme Court of Canada in Bykovets, which was released on March 1, 2024.

[100] In order to put the analysis of this argument into context, it is necessary to discuss briefly the Bykovets decision, as well as decisions that have applied and interpreted Bykovets after its release. I will also review briefly some decisions that dealt with CPS or similar tools prior to Bykovets.

1. Decision of the Supreme Court of Canada in Bykovets

[101] In Bykovets, the police were investigating fraudulent online purchases from a liquor store. The police contacted Moneris, the third-party processing company that managed the store’s online sales, to obtain the IP addresses used for the transactions, and Moneris voluntarily identified two. Police then obtained a production order compelling the IP addresses’ ISP to disclose the subscriber information.

[102] The majority of the Supreme Court of Canada found that there was a reasonable expectation of privacy in an IP address and that a request by the state for an IP address constituted a search (emphasis added): see Bykovets at paras. 14, 30, 92.

[103] The majority stated that the normative standard applied to reasonable expectations of privacy demands that courts take a broad, functional approach to the subject matter of the search and focus on its potential to reveal personal or biographical core information: see Bykovets at para. 7. The majority found that the subject matter of the search was the information that the IP addresses could reveal about specific Internet users, including their online activity and, ultimately, their identity: see Bykovets at paras. 28, 41, 43.

[104] With respect to the issue of whether the claimant’s subjective expectation of privacy was reasonable, the majority repeated that the question, in all cases, is “whether in a 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.” See Bykovets at paras. 44-45. While the majority recognized that this determination must be made in the totality of circumstances, the majority’s analysis focused on three factors: the claimant’s control over the subject matter, the place of the search and the private nature of the subject matter. After a lengthy discussion, the majority concluded that IP addresses should attract a reasonable expectation of privacy.

[105] A review of the majority’s decision in Bykovets reveals that the majority was concerned about the information in the possession of third-party private corporations, the “immense informational power” possessed by these third parties as a result of the mass of data concentrated in their hands, and their role as “intermediaries” between the individual and the state. See, e.g., Bykovets at paras. 75-79. This is illustrated by the majority’s statement at paragraph 89 that “judicial oversight removes the decision to disclose information – and how much to disclose – from private corporations and returns it to the purview of the Charter.” This is further confirmed by comments made by the minority: see, e.g., Bykovets at para. 132.

[106] I note that the present case does not fall within this type of scenario. Mr. Cofell’s IP address was directly and publicly available on the Gnutella network. CPS did not obtain Mr. Cofell’s IP address from a third party or from Mr. Cofell in the context of a transaction, the use of a website operated by CPS, or otherwise.

[107] In addition, this case does not involve a request by the state to a third party for an IP address. Despite the general nature of the comments made by the majority, such comments must be interpreted in light of the case that was before the Court and the specific disposition made by the majority, i.e., that “the request by the state for an IP address is a search under s. 8 of the Charter.” [Emphasis added.] See Bykovets at para. 92. That the ruling in Bykovets is limited to the fact scenario that was before the Court was made clear by the minority who stated the following at para. 135:

I mention in passing that if a third‑party website were to spontaneously provide information without being asked, the reasonable expectation of privacy analysis — which is always guided by “the totality of the circumstances” — could well be different (cf. Reeves, at para. 46). That, however, is an issue for another day in a case where the situation actually arises on the facts.

2. Subsequent decisions that applied Bykovets

[108] The decision in Bykovets was released on March 1, 2024. Since then, it has been considered in a few cases involving allegations related to child pornography. I discuss briefly five decisions below.

[109] In R. v. Leger, 2024 NBKB 72 (“Leger”) (decided on April 17, 2024), the United Kingdom’s National Crime Agency provided information to the Royal Canadian Mounted Police (“RCMP”) that included an IP address. The information provided by the National Crime Agency was described as akin to “a credible and reliable tip”: see Leger at para. 52. Hamou J. found that while navigating online, the accused exposed himself to the investigations of authorities of other countries, including the United Kingdom’s National Crime Agency, which are not subject to the Charter. Hamou J. also found that section 8 and the principles set out in Bykovets were not engaged in Leger. She stated the following at para. 45:

The facts of this case do not engage section 8 of the Charter, or the principles set out in R v Bykovets. The RCMP did not take investigative steps or seek out information to identify the IP address ultimately linked to Leger. Rather the UK NCA provided the RCMP a username, TOX ID, and IP address located in Canada used for sharing and discussing child exploitation material on a particular date. There was no search conducted by the RCMP to obtain Leger’s IP address.

[110] In R. v. Prys, 2024 ABCJ 166 (“Prys”) (decided on July 29, 2024), the accused’s IP address was voluntarily provided by Dropbox to the National Center for Missing and Exploited Children (“NCMEC”), described as “an American Federal Law Agency”. NCMEC subsequently provided the IP address to police in Alberta. The accused’s IP address was never requested by Canadian authorities.

[111] As in Leger, Daniel J. found that section 8 and the principles set out in Bykovets were not engaged in the case before him. He stated the following at para. 12:

From all of the above, I find that s 8 of the Charter has no application to the mandated reporting of detected instances of online child sexual abuse activity in a foreign jurisdiction, including the voluntary reporting of IP addresses associated with such activity. When NCMEC forwards an IP address to police in Canada without a request by law enforcement, this is simply a means of reporting a crime so that police may then obtain the appropriate judicial authorizations to investigate suspected child sexual exploitation in their jurisdiction. As per the Alberta Court of Appeal in R v King, 2021 ABCA 271, I find that when information is provided to the police by a third party without an active request, the police are entitled to receive and review it, and there is no search or seizure by the state which engages s 8 of the Charter.

[112] In R. v. Currie, 2024 BCPC 175 (“Currie”) (decided on August 26, 2024), the police accessed CPS to identify computer users in the region believed to be involved in uploading and downloading child pornography files over P2P networks. The decision in Currie is very critical of the majority’s reasoning in Bykovets. The judge stated the following at paras. 15-17 regarding cases involving P2P networks:

[…] Additionally, it is difficult to rationalize, how, based on the court’s jurisprudence, there is a reasonable expectation of privacy in a digital identifier that is being used in a peer-to-peer program. Surely, its’ [sic] very use is intended for public, not private purposes. […]

Despite claiming awareness of the “insidious nature of much online crime including child pornography or child luring” (par. 11), the 5/4 majority of the court believes in this case that requiring police obtain prior judicial authorization for an IP address is not onerous. This additional step in investigations, in my respectful view, seems to make little sense when investigators in P2P child pornography investigations already have the IP address, and at least prior to Bykovets did nothing more with it than seek the user’s identity by way of the process established in Spencer. Moreover, the majority, in my view fails to understand that there is no single repository of IP addresses that child abuse investigators can go to in order to obtain these numeric identifiers. Rather, investigators utilize publicly available programs to identify the ISP that owns the IP address of interest. Without this step, child abuse investigators would have no ability to inform a judicial officer where they needed to search in order to be provided with the IP address.

The concerning result of shielding IP addresses in the way envisioned by the court in Bykovets is that, arguably the use of such programs to determine the owner of an address already in investigators’ hands could constitute a breach of s. 8. That issue was not raised by the defendant in the case before me, and is an argument that will have to be addressed on another day. I hope, too, the high court will explain why an IP address, which is displayed outwardly and publicly, and suspected to be involved in the distribution of child pornography by a computer system operated in the US is worthy of Canadian Charter of Rights protection.

[113] The judge stated that while he disagreed with the majority’s approach in Bykovets, he was bound to follow it. He concluded that the police breached the accused’s section 8 rights when they obtained the IP address without first obtaining judicial authorization. See Currie at para. 18. However, the judge found that the evidence obtained in breach of the accused’s rights was not to be excluded under section 24(2).

[114] R. v. Pengelly, 2024 SKKB 192 (“Pengelly”) (released on November 1, 2024) deals with a “CyberTipline Report” received by the police. The report, which included an IP address, originated with the NCMEC, described as “a private, non-profit U.S. corporation”. NCMEC forwarded the report to the RCMP. Bergbusch J. distinguished Bykovets on the basis that in Pengelly, the police did not take any steps to obtain the IP address allegedly used to upload or download child pornography. Instead, the IP address was provided to the police in Canada by a third party, NCMEC: see Pengelly at para. 54. Bergbusch J. stated the following at para. 57:

As noted above, NCMEC is a private, non-profit U.S. corporation that works with electronic service providers and law enforcement agencies to reduce online sexual abuse images. NCMEC’s voluntary assistance in detecting child pornography offences does not engage Charter protections. [The Regina Police Service]’s receipt of the complaint from NCMEC did not engage Mr. Pengelly’s reasonable expectation of privacy guaranteed in s. 8.

[115] R. v. Cagoco, (decided on November 1, 2024) (“Cagoco”), a decision of Churchill J. of the Provincial Court of British Columbia (File No. 44265-1), is another child pornography case. In that case, Google Inc. reported to the NCMEC that the user of a Google Drive account had uploaded six video files of suspected child pornography through a specific IP address. NCMEC forwarded the information provided by Google Inc. to the RCMP. Google Inc. had provided the information voluntarily and pursuant to its own initiative.

[116] As in Pengelly, Churchill J. concluded in Cagoco that section 8 was not engaged. He explained as follows:

I am persuaded that in order to constitute a search that engages s. 8 of the Charter there must be some state action such as an investigative step or a request for information. The unchallenged evidence in this case is that the entirety of the information provided by Google was provided voluntarily and undertaken at the initiative of Google. As there was no state action I conclude that there was no search and, therefore, s. 8 is not engaged.

[117] A review of the cases discussed above reveals that, in most of the cases, the reasoning of the majority in Bykovets was found not to apply to situations where the police did not make a request to obtain an IP address and was voluntarily provided with an IP address by a third party.

3. Decisions dealing with CPS or similar tools decided before Bykovets

[118] I now turn to some decisions decided before Bykovets that dealt with CPS or a similar tool. The parties referred the court to three such decisions: Nguyen, El-Halfawi and Hughes.

[119] The facts in Nguyen are very similar to the facts in the instant case. The police used CPS and Shareaza LE. The accused argued that the discovery of the GUID by CPS without prior judicial approval breached his section 8 rights. Fairburn J. (as she then was) concluded that there was no reasonable expectation of privacy in a GUID. She stated that a GUID was similar to an IP address which, based on R. v. Spencer, 2014 SCC 43 (“Spencer”), did not trigger a reasonable expectation of privacy at that time. See Nguyen at paras. 35-37, 40, 43, 45-47. Fairburn J. also stated the following at para. 46:

In the end, I conclude that a person who chooses to operate on a P2P network is making information available to other users on the network. It is the very foundational premise upon which P2P networks operate. Just like the user knows he can obtain information from another’s shared folder, he knows that another inhabitant of the world, also operating on the same P2P network, 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. […]

4. Positions of the parties

i. Position of the defence

[124] The defence’s position is that any use of CPS constitutes a search. The defence argues that using law enforcement tools to connect online activity to IP addresses constitutes a search requiring judicial authorization, and that the police’s use of CPS is an unreasonable warrantless search.

[125] According to the defence, this Court must re-evaluate the precedents that exist regarding CPS following the ruling of the Supreme Court of Canada in Bykovets that Internet users have a reasonable expectation of privacy in their IP addresses. The defence submits that the Supreme Court’s recognition of the privacy interest in IP addresses shows the unconstitutionality of CPS as a warrantless dragnet that police use for selecting and targeting CSAM suspects. The defence argues that for section 8 purposes, no distinction should be drawn between a request for information by the police of a third party and the passive receipt of information.

[126] The defence states that CPS invades Internet users’ expectation of privacy by connecting sensitive information to an Internet user’s IP address and beginning the process of de-anonymization. The defence submits that CPS is an unreasonable warrantless search because it combines the ability to “track” or conduct long-term observation of IP addresses with the possibility of false positives, i.e., of tying an IP address to legal Internet content, including highly sensitive material like legal adult pornography.

[127] The defence argues that the use of CPS is subject to the Charter because it is a tool that is adopted, operated and developed by the TPS for targeting Internet users in Toronto. The defence states that the Crown’s argument based on extraterritoriality is not borne out by the facts of this case.

[128] The defence submits that Mr. Cofell presumptively has a reasonable expectation of privacy in his IP address and that the Crown has not met its burden to prove that he waived it by sharing CSAM because the Crown has not proved that Mr. Cofell was intentionally sharing CSAM in the first place. With respect to the fact that Mr. Cofell did not give evidence on the application, the defence relies on R. v. Jones, 2017 SCC 60 (“Jones”) and argues that Mr. Cofell is in a “catch 22” situation and could incriminate himself on some of the counts if he were to give evidence regarding his intention to share files or not.

[129] The defence submits that the subsequent judicial authorizations in the investigation could not have issued without the crucial information – the IP address and GUID – that the police obtained unconstitutionally using CPS.

ii. Position of the Crown

[130] The Crown’s position is that there was no search or seizure conducted by the police in this case. The Crown submits that section 8 does not apply in the circumstances of this case, and that Bykovets has no bearing because the investigative steps taken by the police in this case are readily distinguishable from the circumstances in Bykovets. While the Supreme Court found in Bykovets that a request by the state for an IP address is a search under section 8, the positive action of a request by the police is missing in this case. The Crown notes that the IP addresses in this case were collected from public view by the CPS system and that the body that operates CPS, i.e., CRC, is not a state actor.

[131] The Crown submits that receiving reports of a crime does not engage the rights under section 8, and that failure to insist on state action as the backbone of section 8 protection would lead to untenable results. The Crown states that the police should not ignore publicly available information.

[132] The Crown argues that the receipt of information lawfully obtained in the United States and passed on to Canadian police is not a search or seizure under section 8 of the Charter. The Crown states that disclosure of information between law enforcements agencies is not a search. The Crown further states that to the extent that a search was conducted, it was done by the CPS system itself, searching the public Gnutella network for users making known child pornography available to the public.

[133] In the alternative, if the Court finds that there was a search or seizure by state actors, the Crown submits that there is no objectively reasonable expectation of privacy in the IP address and GUID contained in CPS. The Crown states that Mr. Cofell could not reasonably have expected that his Internet activity would remain private when his IP address and GUID were available to any person, anywhere in the world, who accessed the public Gnutella network.

[134] The Crown submits that Bykovets is of little assistance in addressing whether a reasonable expectation of privacy attaches to the IP address or GUID collected by CPS in this matter because it does not address a circumstance where the IP address is made available to public view by the user. The Crown argues that it would be an error of law to assume that a reasonable expectation of informational privacy exists in this case without a proper analysis of the circumstances and legal considerations that apply to this matter.

[135] With respect to the inquiry regarding whether there is a reasonable expectation of privacy, the Crown states that the subject matter of the search was the IP address and GUID associated to the user who was making available material identified as child pornography by CPS. The Crown concedes that Mr. Cofell has a direct interest in the IP address and GUID since they are associated with his online activities.

[136] The Crown argues that a subjective expectation of privacy cannot be automatically inferred or presumed when it comes to an individual involved in P2P file sharing because such an individual is knowingly broadcasting their IP address to every other network user, together with an invitation to access the data located on their computer. The Crown states that given what is known about file sharing networks, this case calls out for some kind of evidentiary foundation as people are presumed to intend the natural consequences of their actions. The Crown points out that there is no evidence establishing any kind of subjective expectation of privacy in this case. The Crown’s position is that Jones does not apply in this case because if Mr. Cofell were to give evidence that he did not intend to share files, this would be an exculpatory statement.

[137] As for the issue of whether there is an objectively reasonable expectation of privacy, the Crown notes that an IP address is not owned by a user, but is a random set of numbers assigned by an ISP. The Crown states that while Mr. Cofell had no control over his IP address, he had control over how it was shared with other users. In this case, Mr. Cofell made a deliberate choice to participate in file sharing and to offer other computer users on the Gnutella network the opportunity to access files on his computer and, with it, to learn his IP address. The Gnutella network is publicly accessible to anyone with a computer and access to the Internet. The Crown submits that this is distinguishable from the situation in Bykovets where the IP address was not available to the public and the police had to seek out the IP address from a third party. According to the Crown, it would not be reasonable in the circumstances of this case to believe that Mr. Cofell was not sharing his IP address information on the network.

[138] The Crown submits that there is nothing about the relationship between anonymous computer users accessing a P2P network that would suggest that they should enjoy any expectation of privacy. The Crown also submits that accessing the CPS platform does not involve an intrusive investigative technique. The Crown notes that CPS passively scans file sharing networks to identify users who are offering to share a subset of specific files that have been identified, based on their hash value, as “Child Notable”. CPS can only identify files that a user chooses to share. According to the Crown, to suggest that police are not permitted to engage with CPS would call into question the ability of law enforcement to use Google to conduct an open-source search of the Internet.

[139] The Crown argues that to claim that Bykovets stands for the proposition that there is a reasonable expectation of privacy in an IP address in all circumstances would negate the entire body of precedent that requires courts to look at the circumstances of each case to determine whether there is a reasonable expectation of privacy. The Crown submits that this Court should conclude that the overall normative balance supports the conclusion that Mr. Cofell had no objectively reasonable expectation of privacy in the IP address or GUID broadcast on the Gnutella network.

[140] The Crown states that to the extent that any action of an extraterritorial agent constitutes a search in this case, they are not governed by the Charter and thus no breach has occurred upon which to base an excision from the informations to obtain. The Crown points out that the use of CPS to obtain IP addresses and to access the shared folder of a user on a P2P network without judicial authorization is lawful in the United States. The Crown submits that Canadian police are free to accept information from foreign police or agencies without engaging or infringing the Charter.

5. Analysis

[141] In my view, the receipt of information from CPS does not constitute state action that engages section 8 of the Charter. Further, and in any event, I find that Mr. Cofell did not have a reasonable expectation of privacy in his IP address and GUID in the particular circumstances of this case. Given these conclusions, I do not need to address the Crown’s argument based on extraterritoriality.

i. No state action

[142] A search or seizure can only come under section 8 scrutiny if it was performed by a person who was part of government or performing a specific government function, or if the person can be considered a state agent: see R. v. Buhay, 2003 SCC 30 at para. 25 (“Buhay”). Thus, a person who has relevant information about criminal conduct is legally entitled to communicate this information to the police, without section 8 being engaged. See Buhay at para. 30; R. v. Gomboc, 2010 SCC 55 at para. 41; R. v. Coles, 2012 SCC 53 at para. 73; R. v. Marakah, 2017 SCC 59 at para. 50 (“Marakah”); R. v. Reeves, 2018 SCC 56 at paras. 43, 45; R. v. Molyneaux, 2020 PECA 2 at paras. 51-57; R. v. King, 2021 ABCA 271 at paras. 12, 16; R. v. Lambert, 2023 ONCA 689 at paras. 58-59 (“Lambert”); and Pengelly at para. 57.

[143] In this case, CPS “saw” an IP address that appeared to be sharing “Child Notable” materials on the Gnutella P2P network, and CPS flagged it in its database. This was not state action.

[144] CPS was developed and is run by CRC, a nonprofit organization headquartered in Florida. CPS is used in approximately 100 countries. CRC is not a state actor in this country. It cannot be assimilated to the government, nor can its activities be ascribed to those of the government. While CRC’s work in preventing crime may overlap with the government’s interest, CRC is not a government agent. CPS would have done what it did – i.e., it would have scanned the Gnutella network for “Child Notable” materials – independently of the involvement of the TPS and Detective Sabadin. The “search” or “collection” of Mr. Cofell’s IP address would have occurred without the intervention of the police, and it occurred without any instructions or directions from the police. See Buhay at paras. 28-30.

[145] As the Supreme Court of Canada stated in Buhay at para. 30:

Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated […].

[146] There was no case-specific intervention by the police in this case prior to the receipt of the information regarding Mr. Cofell’s IP address. Further, the fact that Detective Sabadin subsequently ran searches in CPS using an IP address that he discovered during his investigation does not make CPS a state agent. The information accessed in CPS when running a search is information that is already in the database, i.e., past flags or logs. Thus, the information had already been gathered by CPS and was already available to the police before the search was run. A search in CPS does not direct CPS to do anything going forward and it does not change how CPS performs its activities. In my view, arguing that the police running a search in CPS has the effect of making CPS a state agent is like arguing that the police running a Google search has the effect of making Google a state agent. Using the search functions of CPS or Google does not change how they operate and does not make them “target” anyone.

[147] As a non-state actor voluntarily participating in the detection of crimes, CPS was entitled to make information available to the police regarding its discovery of child pornography on a P2P network and what it “saw” on the P2P network. The information available on CPS is lawfully obtained. CPS only gathers public information available over P2P networks. CPS did not take anything from Mr. Cofell and bring it to the police. Rather, the only information logged on CPS to which the police have access is what CPS “saw” on the P2P network. The provision of this information to the police did not engage section 8 of the Charter. See the cases referred to in paragraph 142 above.

[148] In my view, CPS’s information to the police that “the person at this IP address is offering child pornography” is similar to an informer’s information to the police that “the person at this address is selling cocaine”. The receipt of the informer’s information by the police does not constitute a search, and neither does the receipt of information from CPS, even though the information on CPS is gathered using an automated system.

[149] Accordingly, I conclude that CPS’s gathering of information with respect to IP addresses that appear to be sharing suspected CSAM does not constitute state action for the purpose of section 8 of the Charter, and that the police’s receipt of information from CPS does not engage section 8 of the Charter.

ii. No reasonable expectation of privacy

[150] Even if the use of CPS constituted state action, I would find that the police’s use of CPS in this case did not engage section 8 for another reason, i.e., because Mr. Cofell did not have a reasonable expectation of privacy in his IP address and GUID in the particular circumstances of this case.

[151] As noted by the Supreme Court of Canada in Marakah at paragraph 30, the question of whether an accused had a reasonable expectation of privacy “always comes back to what the individual, in all of the circumstances, should reasonably have expected.” Not every communication occurring through an electronic medium will attract a reasonable expectation of privacy, and different facts may lead to a different result. With respect to the same type of information, a reasonable expectation of privacy may exist on a spectrum or in a hierarchy of places. See Marakah at paras. 29, 55.

[152] Given this approach, the finding in Bykovets that the accused had a reasonable expectation of privacy in his IP address in the circumstances of that case is not determinative. For instance, the analysis as to whether someone has a reasonable expectation of privacy in an IP address would be different in a situation where a person put a big sign with their IP address on it on their front lawn. Thus, I disagree with the judge’s conclusion in Currie that the majority’s reasoning in Bykovets necessarily applies to a situation where the police obtained an IP address without making a request for it and in circumstances where the IP address was publicly available. Given that the circumstances of the present case are quite different from the circumstances in Bykovets, it is necessary to conduct a section 8 analysis.

[153] Section 8 of the Charter is a personal right that protects people, not places. To assert a section 8 claim, an accused must first establish that they have a reasonable expectation of privacy over the subject matter of the search. Once the subject matter of the search is properly identified, the court looks to: (i) whether the accused has a direct interest in that subject matter; (ii) whether the accused has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether the accused’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances. If the accused cannot demonstrate a reasonable expectation of privacy, then there is no search and seizure within the meaning of section 8. See R. v. Dosanjh, 2022 ONCA 689 at paras. 113-114 (“Dosanjh”).

[154] A court identifying the subject matter of a search must not do so narrowly in terms of the physical acts involved or the physical space invaded, but, rather, by reference to the nature of the privacy interests potentially compromised by the state action: see Marakah at para. 15 and Bykovets at para. 38. Defining the subject matter of the search necessitates a functional approach, one that requires an inquiry into not only the information sought, but also the nature of the information that it reveals. The real question for determination is “what the police were really after”. See Bykovets at para. 34 and Dosanjh at para. 115.

[155] In an application under section 8 of the Charter, applicants are entitled to rely on the Crown’s theory and ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against them in lieu of tendering evidence probative of those same facts in the voir dire. Where the facts alleged by the Crown, if taken to be true, would establish certain elements of the applicant’s section 8 claim, applicants need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. See Jones at paras. 8-9, 15-19, 32.

[156] Further, in the absence of the claimant’s testimony or admission at the voir dire, a subjective expectation of privacy can be presumed or inferred in the circumstances: see Jones at para. 21.

[157] A number of factors may assist in determining whether it was reasonable to expect privacy in different circumstances, including the following factors: (a) the place where the search occurred; (b) control over the subject matter; (c) whether the subject matter was in public view; (d) whether the subject matter had been abandoned; (e) whether the information was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality; (f) whether the police technique was intrusive in relation to the privacy interest; (g) whether the use of the evidence-gathering technique was itself objectively unreasonable; and (h) the private nature of the subject matter, i.e., whether the information exposed any intimate details of the applicant’s lifestyle, or information of a biographic nature. See R. v. Patrick, 2009 17 at para. 27, R. v. Tessling, 2004 SCC 67 at para. 32 (“Tessling”) and Marakah at para. 24.

[158] Before turning to the section 8 analysis, I wish to address the defence’s argument that Mr. Cofell presumptively has a reasonable expectation of privacy in his IP address and that the Crown has not met its burden to prove that he waived it by sharing CSAM because the Crown has not proved that Mr. Cofell was intentionally sharing CSAM in the first place. The defence relies on the Court of Appeal’s decision in R. v. Wills, 1992 CanLII 2780 (Ont. C.A.) (“Wills”) in support of this argument.

[159] In my view, this argument is based on a number of erroneous premises. First, in the circumstances of this case, there is no “presumption” that Mr. Cofell has a reasonable expectation of privacy in his IP address. Given that the facts of this case are different than the facts in Bykovets, Mr. Cofell has the burden to establish a reasonable expectation of privacy in the circumstances of this case.

[160] Second, the principles set out in Wills regarding waiver have no application in this case. At no time during the investigation did the police ask Mr. Cofell to waive any rights or to consent to anything. The police did not make any request of Mr. Cofell with respect to his IP address or GUID. The issue of whether Mr. Cofell made “a voluntary and informed decision to permit the intrusion of the investigative process upon his […] constitutionally protected rights” (see Wills) does not arise in this case because Mr. Cofell was never asked to make such a decision during the investigation. Given that the waiver doctrine does not apply in the circumstances of this case, the Crown does not have the burden to prove waiver.

[161] The defence’s argument with respect to waiver appears to be in relation to Mr. Cofell’s settings in Shareaza and whether he had the intention of sharing files. Whether Mr. Cofell made a mistake in choosing his settings in Shareaza and in determining what would be shared or whether he made no such mistake and intentionally shared CSAM is not a waiver issue. Any mistake made by Mr. Cofell was not induced by, or related in any way to, the police or CPS. However, this type of argument can be relevant in determining whether Mr. Cofell had a subjective expectation of privacy in the circumstances of this case and whether the subject matter of the search had been “abandoned”. This is discussed further below.

[162] I now turn to the section 8 analysis in this case.

[163] Subject matter of the search. The first step is to identify the subject matter of the search.

[164] In Bykovets, the majority stated that the subject matter of the search in that case was “an IP address as the key to obtaining more information about a particular Internet user including their online activity and, ultimately, their identity as the source of that information”: see Bykovets at para. 43.

[165] While this description of the subject matter of the search can also be used in the present case, I note that the search in this case, i.e., the use of CPS, is different in nature than the request for an IP address from a private third-party corporation that occurred in Bykovets. Contrary to police officers who make a specific request to a private third party for an IP address, police officers who access CPS often do so before a specific investigation has started, i.e., before they are looking for a specific individual. CPS discloses to the police IP addresses that are suspected of sharing CSAM on a P2P network, which information can trigger the start of an investigation. Further, CPS discloses IP addresses and GUIDs in relation to specific online activity, i.e., the sharing of “Child Notable” materials on a P2P network.

[166] Thus, “what the police were really after” when they accessed CPS in this case was the IP addresses and GUIDs of people suspected of sharing CSAM on a P2P network and, through the search function of CPS, the past online activity associated with these IP addresses and GUIDs regarding past sharing of “Child Notable” materials on a P2P network. As in Bykovets, an IP address obtained through the use of CPS is the key to obtaining more information about a particular Internet user, including their online activity and, ultimately, their identity.

[167] Whether the accused has a direct interest in the subject matter of the search. Mr. Cofell has a direct interest in his IP address and GUID and in the online activity associated with them.

[168] Whether the accused has a subjective expectation of privacy in the subject matter of the search. In the absence of the claimant’s testimony or admission at the voir dire, a subjective expectation of privacy can be presumed or inferred: see Jones at para. 21. In my view, it is appropriate in this case to presume that Mr. Cofell had a subjective expectation of privacy in his IP address, GUID, and online activity on the Gnutella P2P network. The real issue in this case is whether any such subjective expectation of privacy was reasonable.

[169] While I am prepared to presume that Mr. Cofell had a subjective expectation of privacy in his IP address, GUID, and online activity on the Gnutella P2P network, I am not prepared to presume, in the absence of any evidence, that Mr. Cofell did not have the intention to share files on the Gnutella P2P network or that he somehow made a mistake in establishing his Shareaza settings. This is not a situation like the one in Jones, where it was held that the accused could rely on any fact that the Crown had alleged or would allege in the prosecution. See Jones at paras. 32-33. Here, the Crown’s theory of the case is that Mr. Cofell intentionally made CSAM available on a P2P network. The defence’s suggestions on this application – that Mr. Cofell did not have such an intention – is the opposite of the Crown’s theory. Thus, the defence cannot rely on the principle set out in Jones, which is an exception to the rule that a Charter applicant bears the burden of persuading the court that their Charter rights have been infringed. See also R. v. McPherson, 2023 ONSC 232 at paras. 56-57 (“McPherson”).

[170] The evidence before me is that during the installation process of Shareaza, it is made very clear that Shareaza is a file-sharing application and that the user will be sharing and not just downloading. There is also evidence that Mr. Cofell changed at least one default setting in Shareaza because the designated download folder in this case was changed to a folder on the D drive. Similar evidence was found to be relevant to the issue of wilful blindness in Spencer: see Spencer at paras. 84-85.

[171] Further, the evidence in this case is that Mr. Cofell’s IP address advertised files for download – which was witnessed by both CPS and Detective Sabadin – for several weeks. In addition, Detective Sabadin, using Shareaza LE, was able to download five complete files from that IP address.

[172] DC Kidd also gave evidence that files that are being downloaded through Shareaza are being shared right away with other users and this sharing cannot be stopped during the transfer process.

[173] I note that in a number of cases, an accused’s settings on a social media account were considered in determining whether an applicant had a subjective and/or reasonable expectation of privacy. See, e.g., McPherson at paras. 56-58, R. v. Patterson, 2018 ONSC 4467 at paras. 9, 15, 18 (“Patterson”) and R. v. Ansah, 2021 ONSC 225 at paras. 147-150 (“Ansah”).

[174] While there is no direct evidence that Mr. Cofell voluntarily abandoned any expectation of privacy in his IP address, GUID and online activity on the Gnutella P2P network, the circumstantial evidence in this case does not support – and certainly does not establish on a balance of probabilities – the defence’s assertion that Mr. Cofell did not have the intention to share files on the Gnutella P2P network.

[175] Whether the accused’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances. In order to determine whether Mr. Cofell had a reasonable expectation of privacy in this case, it is important to engage in a contextual analysis and consider the relevant factors. I discuss the relevant factors below:

a. The place where the search occurred. As stated by the Supreme Court of Canada in Marakah, a reasonable expectation of privacy may exist in a hierarchy of places. Thus, in relation to text messages, a person may have a high expectation of privacy in their own phone, which the persons completely controls, a lesser expectation of privacy in a friend’s phone, which the person expects the friend to control, and no reasonable expectation of privacy at all if the person expects the text message to be displayed to the public. See Marakah at para. 29.

In this case, the search occurred on the Gnutella P2P network, which is a public network over which Mr. Cofell did not have control. The purpose of P2P networks is to allow users of the network to share files. As noted in Nguyen at para. 46, a user of a P2P network can obtain information from another user’s shared folder and “another inhabitant of the world, also operating on the same P2P network, may obtain information from [the user’s] shared folder.”

b. Control over the subject matter. As stated by the majority in Bykovets at paragraph 46, the claimant’s control over the subject matter is not determinative in the informational privacy context. However, in this case, Mr. Cofell made the choice to go onto a P2P network where other users would be able to search for content and download files in his shared folder, and where his IP address would be exposed to other users of the P2P network.

c. Whether the subject matter was in public view. Mr. Cofell’s IP address was in public view in that it could be viewed by other users of the Gnutella P2P network. As noted above, CPS only gathers public information made available by the user sharing files over the P2P network.

d. Whether the subject matter had been abandoned / Whether the information was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality. As stated above, there is no evidence that Mr. Cofell voluntarily “abandoned” his IP address and GUID. However, a person can have no reasonable expectation of privacy in what they knowingly expose to the public or a section of the public because it is unreasonable to expect personal information to remain private in such a situation: see Tessling at para. 40. Further, information obtained in the public domain, where it could be accessed by multiple people or the general public, is less likely to attract a reasonable expectation of privacy: see R. v. J.J., 2022 SCC 28 at para. 60.

The information that CPS obtained about Mr. Cofell’s IP address and GUID was obtained in the “public domain” and was exposed to a section of the public, i.e., the users of the Gnutella network. As noted above, the identities of users of P2P networks are not apparent to other users. The users of P2P networks are not subject to an obligation of confidentiality. By participating in a P2P network with people he had never met before and whose identities were unknown to him, Mr. Cofell opened himself up to the risk that other users of the network were police officers or people who would report his activities to the police. See Ansah at paras. 147-148 and Patterson at para. 27. Individuals do not have a reasonable expectation of privacy in the knowledge that others have: see Lambert at para. 58. Thus, Mr. Cofell could not have a reasonable expectation that anyone on the Gnutella P2P network would keep anything that they saw private.

If Mr. Cofell intended not to share anything through Shareaza – if that is even possible – he did not take the necessary steps to do so. As stated above, the evidence in this case is that he was advertising files for download for several weeks. Given this and that he was using a file-sharing application, any subjective belief or expectation that his IP address would not be accessible to other users of the network is not a reasonable one. See Ansah at paras. 147-150.

e. Whether the police technique was intrusive in relation to the privacy interest / Whether the use of the evidence-gathering technique was itself objectively unreasonable. CPS only gathered information that was publicly available on the Gnutella P2P network. The technique used was not intrusive and not objectively unreasonable.

f. The private nature of the subject matter, i.e., whether the information exposed any intimate details of the applicant’s lifestyle, or information of a biographic nature. As the majority of the Supreme Court of Canada found in Bykovets, online activity can reveal information that goes directly to a user’s biographical core. Thus, “an IP address may betray an intensely private array of information, touching directly on the intimate details of the lifestyle and personal choices of an individual user.” See Bykovets at paras. 60, 63, 70.

[176] In light of the totality of the circumstances of this case, including the factors set out above, I find that Mr. Cofell did not have a reasonable expectation of privacy with respect to his online activity on the Gnutella P2P network, including his IP address and GUID as made available on that network. Mr. Cofell chose to participate in a file-sharing network where any other user of the network could obtain information from his shared folder and where his IP address would be exposed to the other users. Mr. Cofell’s IP address and GUID were publicly available over the network, and the identities of the other users of the network were unknown to Mr. Cofell. Mr. Cofell could not have a reasonable expectation of privacy in the knowledge of the other users of the Gnutella network and what they saw. While the private nature of what an IP address may disclose has been recognized, this is not a situation like in Bykovets where the information regarding the applicant’s IP address was controlled by a corporate third party and was not publicly available.

[177] Accordingly, I conclude that, in the particular circumstances of this case, Mr. Cofell did not have a reasonable expectation of privacy in the subject matter of the search. Therefore, section 8 is not engaged.

C. Section 8 – Failure to comply with the scope of the search warrant

[178] The defence argues a second breach of section 8 of the Charter in relation to the examination of the devices seized at Mr. Cofell’s residence.

1. Positions of the parties

[179] The defence’s position is that the police potentially or likely failed to comply with the few restrictions that were in the judicial authorization to search Mr. Cofell’s devices. The defence states that Detective Sabadin failed to record the details of his examination of Mr. Cofell’s devices and has no independent memory of exactly what he looked at on the devices, why he looked at each item, and whether he determined that he was even permitted to look in the first place.

[180] The defence argues that the case law is replete with warnings that officers should keep careful notes of their searches of digital devices under a search warrant. The defence concedes that the absence of reliable notes from Detective Sabadin does not create a standalone breach of section 8, but submits that this Court can have no confidence in anything Detective Sabadin says regarding his compliance or non-compliance with the search warrant in the absence of an independent recollection of the precise scope of the examination of Mr. Cofell’s digital devices. The defence states that the police’s understanding that they could look anywhere on the devices is not proportional and reasonable. Examples given by the defence with respect to files that the police was not authorized to look at include files that did not have a CSAM-related name – as there was no evidence that Mr. Cofell was hiding CSAM content – and files that were looked at only for the purpose of determining ownership and possession.

[181] The Crown’s position is that officers took reasonable steps to record the process by which they conducted their examination, Detective Sabadin explained his process during his testimony, and there is no evidence that the police failed to remain within the scope of their authorization. The Crown submits that a lack of detailed notes will not constitute a section 8 breach provided that the failure to take detailed notes does not undermine the applicant’s ability to challenge meaningfully the reasonableness of the search. According to the Crown, there is an adequate record in this case upon which this Court can decide whether the examiners remained within the scope of their authorization. The Crown argues that record-keeping is irrelevant if there is no over-searching, and there was no over-searching in this case. Detective Sabadin believed that he could have examined more files than he did.

[182] The Crown points out that there is very little that would be outside the scope of the search warrant. The Crown does not dispute that Detective Sabadin completed a comprehensive search of the electronic devices, including a review of nearly every single image and video on the digital device. However, the Crown notes that this is clearly contemplated by the judicial authorization given that the search is for images and videos of child pornography, and that the examiner cannot determine whether an image or video meets that definition if they have not looked at it. The Crown states that it is necessary to look at files that do not have an explicit CSAM name because people change file names. The Crown also states that it was necessary to look for evidence of ownership and possession.

2. Analysis

[183] In R. v. Vu, 2013 SCC 60 at para. 70 (“Vu”), the Supreme Court of Canada stated that notes of how a search is conducted should be kept, absent unusual or exigent circumstances. The Supreme Court also stated that “[n]otes are particularly desirable when searches of computers are involved because police may not be able to recall the details of how they proceeded with the search.” However, the Supreme Court did not decide that notes were a constitutional prerequisite.

[184] In contrast, the obligation on an officer to take detailed notes when conducting an examination of an electronic device under the common law power of search incident to arrest is a constitutional imperative: see R. v. Fearon, 2014 SCC 77 at para. 82. In such circumstances, the notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration: ibid. This requirement does not apply in the present case given that the police obtained a search warrant.

[185] Even when the police obtain a warrant based on reasonable and probable grounds, there may be some cases where the failure to take notes of a computer search could give rise to an inference that the police conducted the search unreasonably. One such instance is where the failure to take detailed notes undermines the applicant’s ability to challenge meaningfully the reasonableness of the search. See R. v Villaroman, 2018 ABCA 220 at para. 17 and R. v. Javer, 2024 ONCJ 293 at paras. 63-78.

[186] I pause here to note that this case is not like Vu where the police officer deliberately failed to take notes during the search so he would not have to testify about the details: see Vu at para. 70. Detective Sabadin did take notes in this case. While they were not very detailed, I am satisfied that the lack of details was not for any improper purpose. The lack of details in Detective Sabadin’s notes does not constitute, in itself, a breach of section 8. The question is whether the failure to take detailed notes of the computer searches could give rise to an inference that the police conducted the search unreasonably and/or whether this failure undermined Mr. Cofell’s ability to challenge meaningfully the reasonableness of the search.

[187] The Supreme Court stated the following in Vu at paragraphs 60-61:

The computer searches here were aimed at evidence of ownership and occupation of a dwelling. There is nothing in the record that would assist us in formulating a practical and appropriate search protocol that could have been imposed in this case. Depending on how the computer was used, which police could not have known until they looked at the device, this evidence could have been found almost anywhere in the computer. For example, an address or image of the occupant could have been in a Word document, an Excel file, a tax-filing program, image or video files, various online accounts, etc. Moreover, a search of any one of these types of programs or files would not have assured access to the sought-after information. Finally, the police did not indicate any intention to use sophisticated forensic search methods to scour the device and they made no attempt to do so. In my view, there were no circumstances that pointed to a need for a search protocol to be included in a warrant authorizing the search of computers, should they be found in the residence.

By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.

[188] While this statement was not made in the context of a child pornography case, it generally applies to this case given the breadth of the search warrant and the uncontradicted evidence of the police officers that people sometimes hide child pornography files on electronic devices by changing the file type, the file name, putting it in a Word or PDF document, etc. I agree with the Crown that in light of the breadth of the search warrant, there is very little that would fall outside the scope of the search warrant in this case.

[189] Based on the evidence before me, I am satisfied that the police did not “scour the devices indiscriminately”. I accept Detective Sabadin’s evidence that if he realized in the course of his examination that there was no reason to search a particular file or folder, he did not do so – for instance, after realizing that a particular folder only contained music files. This approach has been approved by the Court of Appeal: see R. v. Jones, 2011 ONCA 632 at paras. 43-44 and R. v. John, 2018 ONCA 702 at para. 23 (“John”). I also find that, given the nature of this case and the contents of the search warrant, it was reasonable in the circumstances to review all the images and videos located on the devices. See John at paras. 20-21, 24.

[190] I do not accept the defence’s argument that the police should not have looked at files that did not have a CSAM-related name because there was no evidence that Mr. Cofell was hiding CSAM content. This suggestion was rejected by the Court of Appeal in John at paras. 20-21, 24. Further, as indicated by Detective Sabadin during his testimony, there was no way for the police to know at the beginning of the investigation whether Mr. Cofell did or did not hide CSAM content on his computer. See also Vu at para. 57. Given the uncontradicted evidence before me that the hiding of files does happen in this kind of cases, the police was justified in looking at files that did not have an explicit CSAM-related name.

[191] I also do not accept the defence’s argument that the police should have somehow limited its review of files relating to the ownership and possession of the devices. The search warrant expressly authorized the examination of data relating to “ownership, possession, access, use or control of the devices and/or their data”. Given that the police did not know what position Mr. Cofell would take on these issues, it was reasonable for them to look for this kind of evidence and not stop after finding a few pieces of relevant evidence. Further, it was possible that in the course of their examination, the police would find not only inculpatory evidence, but exculpatory information as well.

[192] Based on the scope of the search warrant and the evidence before me, including Detective Sabadin’s notes and his testimony, I have concluded that Detective Sabadin’s failure to take detailed notes while searching Mr. Cofell’s electronic devices did not violate Mr. Cofell’s section 8 rights. I find that the failure of Detective Sabadin to make detailed notes does not support an inference that the search was conducted in an unreasonable manner in this case. I also find that the absence of detailed notes did not undermine Mr. Cofell’s ability to challenge meaningfully the reasonableness of the search.

D. Section 9 – Arbitrary detention

[193] The defence argues that the detention of Mr. Cofell during the execution of the search warrant at his home infringed section 9 of the Charter.

1. General legal principles

[194] During the execution of a search warrant, police are entitled to segregate the occupants of the premises to ensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search, and they may give appropriate directions to that end. However, there are limits to these powers. Once the police have ensured that they have accounted for all the occupants and ensured their safety, they must have a basis for any continued detention of any occupant. They are not justified in holding the occupants in a room unless the occupants are being arrested or otherwise being lawfully detained. The occupants may leave or, provided that they are not interfering with the search, they are permitted to stay in and move about the residence. See R. v. McSweeney, 2020 ONCA 2 at paras. 38-39 (“McSweeney”).

[195] Police officers have a limited common law power to detain for investigative purposes. This power is subject to section 9 of the Charter, which provides that everyone has the right not to be arbitrarily detained. A detention is not arbitrary if it is lawful. Police officers may lawfully detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is necessary. The detention must be conducted in a reasonable manner and it should be brief in duration. See R. v. Mann, 2004 SCC 52 at paras. 20, 45, and R. v. Barclay, 2018 ONCA 114 at para. 21 (“Barclay”).

[196] The purpose of an investigative detention is “to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.” See Barclay at para. 29.

[197] The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect or for detaining suspects indefinitely while they carry out their investigation. See R. v. McGuffie, 2016 ONCA 365 at para. 38 (“McGuffie”).

[198] There is no “bright line temporal rule” in determining whether an investigative detention is arbitrary. However, the permitted duration of an investigative detention is not defined by the time reasonably required to further a legitimate investigation. All investigative detentions must be brief because the state interference with the person’s liberty rests on a reasonable suspicion of criminal activity, which is a much lower standard than the reasonable and probable grounds needed for an arrest. See Barclay at paras. 26, 28. The Court of Appeal for Ontario described the permitted duration of an investigative detention as follows in Barclay at paragraph 27:

The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual safety. […]

[199] The permitted duration of an investigative detention is case-specific, but the following factors are relevant considerations: (a) the intrusiveness of the detention; (b) the nature of the suspected criminal offence; (c) the complexity of the investigation; (d) any immediate public or individual safety concerns; (e) the ability of the police to carry out the investigation without continuing the detention of the suspect; (f) the lack of police diligence; and (g) the lack of immediate availability of the required investigative tools. See Barclay at para. 31.

[200] While these factors are relevant and their relative importance will vary from case to case, it is important to remember that all investigative detentions must be brief and that these factors only situate the permitted duration of the detention within the range of what is “brief”. See Barclay at para. 32.

2. Positions of the parties

[201] The defence’s position is that the investigative detention of Mr. Cofell for 58 minutes during the execution of the search warrant at his home was unnecessary, unlawful and arbitrary. The defence points out that Mr. Cofell was “stuck” in his cramped apartment and outnumbered ten-to-one by police officers entering and exiting the space at various times. The defence argues that the police did precisely what it cannot do, i.e., hold Mr. Cofell while searching his home for evidence that might justify his arrest. The defence states that the ancillary power for police to control the scene of a search does not automatically allow for detention of individuals at the scene unless additional and case-specific grounds justify a detention. According to the defence, there was no case-specific grounds justifying a detention in this case.

[202] The defence submits that there was no justification for a one-hour long detention during the search of Mr. Cofell’s home because there were no physical safety concerns, and there was no realistic jeopardy to evidence that police could not have addressed with prudent measures and technical tools at their disposal. The defence points out that the only live device that was seized at the scene was a phone, and that there was no indication that CSAM was stored in the cloud. The defence states that Detective Sabadin’s concerns about self-harm were speculative and not case-specific. The defence also states that the possibility of child sexual abuse by Mr. Cofell while the police was searching his residence is not realistic.

[203] The defence notes that detention needs to be brief and that the relevant factors to consider do not justify a one-hour long detention.

[204] The Crown submits that at the time of his detention at 6:17 a.m., Mr. Cofell was properly the subject of a reasonable suspicion in relation to the offences alleged in the search warrant. The Crown points out that Detective Sabadin informed Mr. Cofell of his rights upon detention and recommended that he remain silent until he had decided whether to speak with counsel. The Crown notes that Mr. Cofell was not searched incident to his detention, he was not questioned, handcuffed or otherwise restrained.

[205] The Crown argues that Detective Sabadin was justified in detaining Mr. Cofell for just under an hour to ensure that the warrant could be executed safely and without any risk of destruction of evidence. The Crown states that the detention of Mr. Cofell did not in any way advance the investigation or prejudice his position at trial.

[206] The Crown’s position is that the detention of Mr. Cofell was brief in the context of this case. The Crown states that Detective Sabadin’s safety concerns were not theoretical. They were based on his experience and the police did not know anything about Mr. Cofell’s mental health. Further, the police had no power to prevent Mr. Cofell from going to work. The Crown also states that there were concerns about preservation of evidence as the police did not know when they arrived at Mr. Cofell’s residence whether there were live devices or whether cloud storage was involved. The Crown points out that Mr. Cofell was not moved (i.e., he stayed in his home), the offences in issue are very serious, and the investigation was complex and involved many devices.

3. Analysis

[207] In my view, the detention of Mr. Cofell was arbitrary. While there were reasonable grounds to suspect in all the circumstances that Mr. Cofell was connected to the crimes that were being investigated, his detention was not necessary.

[208] Detective Sabadin did not articulate any grounds for the detention that were necessary “to allow the police to take investigative steps that [were] readily at hand”. Based on Detective Sabadin’s evidence, his grounds to detain Mr. Cofell did not include any grounds related to the preservation of evidence. In any event, there is no case-specific ground related to the preservation of evidence that would have justified a one-hour detention. In particular, there is no evidence that this case involved any cloud storage or that the police suspected that it did.

[209] The fact that space was very limited in Mr. Cofell’s residence and that Mr. Cofell’s movements within the residence had to be restrained does not in itself justify a detention. Provided that Mr. Cofell did not interfere with the search, he should have been permitted to leave or stay in and move about the residence. While the police had the authority to give directions to Mr. Cofell to prevent the loss or destruction of evidence and to maintain the integrity of the search, they did not have the authority simply to detain him in the residence, without any other grounds. See McSweeney at paras. 38-39.

[210] Detective Sabadin’s concerns for Mr. Cofell’s safety and the risk of self-harm are not based on anything specific related to Mr. Cofell. Detective Sabadin acknowledged that there was no reason to believe that Mr. Cofell was suicidal, that he had no information about Mr. Cofell’s mental health, and that there were no grounds to apprehend Mr. Cofell for mental health reasons. The type of generalized concerns expressed by Detective Sabadin, if accepted without more, would justify a detention in every matter involving child pornography, which cannot be the case.

[211] Similarly, the safety concerns with respect to allowing Mr. Cofell to go to work given that his work as a bus driver involved contact with children are not based on any evidence or anything specific. The police knew before the execution of the search warrant that Mr. Cofell was a school bus driver as this information is contained in the Information to Obtain a Search Warrant. Despite this knowledge, the police did not take any steps prior to the execution of the search warrant to determine whether there were safety concerns related to children who were in contact with Mr. Cofell. In addition, I agree with the defence that any belief that Mr. Cofell would commit child abuse early on a Wednesday morning while the police was searching his apartment is highly speculative.

[212] Thus, I find that Mr. Cofell’s detention was not necessary in the totality of the circumstances. Further, it was not brief. The relevant factors set out in Barclay (at para. 31) do not support a range of “brief” extending to 58 minutes in this case:

a. Intrusiveness of the detention. The detention was not very intrusive, but it did affect Mr. Cofell’s liberty interest as he was not allowed to leave his residence.

b. Nature of the suspected criminal offence. The suspected offences were very serious.

c. Complexity of the investigation. In my view, at the stage of the execution of the search warrant, the investigation was not complex, especially after the police had entered into the residence and determined what was there.

d. Any immediate public or individual safety concerns. As discussed above, there were no substantiated immediate public or individual safety concerns.

e. Ability of the police to effectively carry out the investigation without continuing the detention of the suspect. The police were able to execute the search warrant and carry out the investigation without detaining Mr. Cofell.

f. Lack of police diligence. This factor is not relevant in this case.

g. Lack of immediate availability of the required investigative tools. This factor is not relevant in this case.

[213] In my view, a 58-minute detention is not, generally speaking, “brief”, and none of the factors above would justify stretching the meaning of “brief”. Further, as stated by the Court of Appeal, “[i]f there are other reasonable means of continuing the investigation without detaining the suspect, the continued detention of the suspect would likely render continued detention unconstitutional.” See Barclay at para. 31. In this case, the police were able to continue the investigation and execute the search warrant without detaining Mr. Cofell.

[214] Accordingly, I conclude that the detention of Mr. Cofell was arbitrary and in violation of section 9 of the Charter.

[215] Given that I have found a breach of section 9, I now turn to the issue of whether any evidence should be excluded under section 24(2) of the Charter.

E. Section 24(2) analysis

1. General applicable principles

[216] There are two components to determining whether evidence must be excluded under section 24(2) of the Charter: the threshold component and the evaluative component. The threshold component asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom.[^2] If the threshold requirement is met, the evaluative component asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. See Beaver at para. 94.

[217] Threshold component. Section 24(2) is engaged only when the accused first establishes that evidence was “obtained in a manner” that breached the Charter. The threshold requirement insists that there be a nexus between the Charter breach and the evidence, absent which section 24(2) has no application. Determining whether evidence was “obtained in a manner” that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. See Beaver at para. 95.

[218] Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of the evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent discovery of the evidence may be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the breach and the impugned evidence will not suffice. See Beaver at para. 96 and R. v. Mack, 2014 SCC 58 at para. 38.

[219] Evaluative component. Under the second component, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society’s interest in the adjudication of the case on its merits. The court’s role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See R. v. Grant, 2009 SCC 32 at paras. 71, 86, 140 (“Grant”). In all cases, the court must assess the long-term repute of the administration of justice: R. v. Côté, 2011 SCC 46 at para. 48 (“Côté”).

[220] Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72.

[221] The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, but admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. For state misconduct to be excused as a good faith infringement of Charter rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law. See Grant at paras. 74-75, R. v. Paterson, 2017 SCC 15 at para. 43, Beaver at para. 120, and R. v. Le, 2019 SCC 34 at para. 147 (“Le”).

[222] The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for the identification of the interests protected by the relevant Charter right and an evaluation of the extent to which the breach actually undermined the interests protected by the right. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76 and Beaver at para. 123.

[223] An assessment of the impact of a Charter breach should consider whether the impugned evidence could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused. See R. v. Sureskumar, 2023 ONCA 705 at para. 28. Similarly, the lack of a causal connection between the Charter breach and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused’s Charter-protected interests: see Beaver at para. 125.

[224] The third factor – society’s interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution’s case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.

[225] The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pulls towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. See McGuffie at para. 63 and Le at paras. 141-142.

2. Positions of the parties

[226] The defence’s position is that the Court should exclude the evidence obtained during the execution of the search warrant at Mr. Cofell’s residence. The defence argues that there is a close temporal connection between the breach of section 9 and the evidence because the breach occurred during the police’s physical discovery and examination of the devices.

[227] The defence submits that the police’s Charter-infringing conduct was serious given that the police needlessly placed Mr. Cofell in an investigative detention that lasted an hour. The defence states that an absence of bad faith is not the same thing as a positive finding of good faith, and that the police’s carelessness and negligence weigh towards exclusion. According to the defence, the failure to record reasons for the detention constitutes serious police misconduct.

[228] The defence argues that the section 9 breach had a significant impact on Mr. Cofell’s Charter-protected interests. The defence points out that during the execution of the search warrant, Mr. Cofell endured an unlawful and unnecessary investigative detention while alone and outnumbered ten-to-one by police in a cramped apartment. This occurred at 6 a.m., in Mr. Cofell’s home, while he was still in his pajamas.

[229] With respect to the third factor, the defence notes that it will rarely tip the balance towards admissibility when, as in this case, the first two factors weigh strongly towards exclusion. The defence submits that the just outcome in this case is to exclude the evidence.

[230] The Crown’s position is that the evidence obtained during the execution of the search warrant at Mr. Cofell’s residence should not be excluded.

[231] The Crown argues that the police was not negligent and operated in good faith. The Crown states that the police treated Mr. Cofell with respect and tried to follow the law at every stage of the investigation.

[232] The Crown concedes that there is a temporal connection between the section 9 breach and the evidence obtained during the execution of the search warrant at Mr. Cofell’s residence, but submits that there is no causal connection and that this should lessen the impact of the breach on Mr. Cofell’s Charter-protected interests under the second factor in the analysis under section 24(2). The Crown also points out that had Mr. Cofell chosen to stay home during the execution of the search warrant, he would not have been able to move freely in his home.

[233] The Crown submits that the exclusion of reliable evidence in this case would bring the administration of justice into disrepute. The Crown points out that the offences alleged in this case are very serious and that the Crown’s case could not continue if the evidence were to be excluded.

3. Application to the facts of this case

[234] I now turn to the application of section 24(2) to the facts of this case with respect to the breach of section 9 of the Charter.

[235] I find that the threshold component under section 24(2) is met and that section 24(2) is engaged. While there is no causal relationship between the section 9 breach and the subsequent discovery of the evidence, I agree with the defence that there is a close temporal connection between the two.

[236] I discuss below the three factors under the evaluative component.

[237] Seriousness of Charter-infringing conduct. While I accept that Detective Sabadin did not act in bad faith and that his concern regarding self-harm may have been based on an unfortunate experience in a prior investigation, it is my view that Detective Sabadin showed ignorance of Charter standards in relation to investigative detentions and was negligent in this regard. As set out above, the grounds that Detective Sabadin provided for Mr. Cofell’s detention do not withstand scrutiny, including the only ground provided at the time of the detention – that it was a tight area and that Mr. Cofell’s movements in the apartment had to be limited for his and the officers’ safety.

[238] While the Charter-infringing conduct in this case was not wilful and deliberate, ignorance of Charter standards must not be rewarded or encouraged. This factor favours the exclusion of the evidence. However, the police conduct is not at the high end on the scale of culpability.

[239] Impact of the breach on the Charter-protected interests of Mr. Cofell. In my view, the impact of the breach on the Charter-protected interests of Mr. Cofell was not significant. While 58 minutes is not a “brief” period, this is not a very long period either in the particular circumstances of this case. Mr. Cofell was at home for the entire period of his detention. The police were lawfully in his apartment to execute a search warrant. Even if Mr. Cofell had not been detained, the police had the authority to give him directions which could limit his movements inside of the apartment during the execution of the search warrant in order to prevent the loss or destruction of evidence and to maintain the integrity of the search: see McSweeney at para. 38. The fact that Mr. Cofell’s apartment was very cluttered and that there was almost no room to move has nothing to do with the police. That was Mr. Cofell’s living environment in which the police had to execute a search warrant safely and properly. The police adjusted their conduct to the environment, with a number of officers staying outside and the property/exhibits officer setting up outside.

[240] The defence complains that Mr. Cofell was not able to leave his apartment. However, as observed by the Court of Appeal in R. v. Scopel-Cessel, 2022 ONCA 316 at para. 45, the notion that Mr. Cofell would have left his apartment is not realistic in the circumstances of this case. The police arrived at Mr. Cofell’s residence at 6:15 a.m. Mr. Cofell was in his pajamas. It was January and it was very cold outside.

[241] I also note that Mr. Cofell was not physically restrained during his detention. He was treated with respect at all times and was allowed to smoke cigarettes, use the washroom, and call his employer. He was also provided with the medications that he had to take. He was advised of his right to counsel and informed that the police were there to execute a search warrant in relation to child pornography offences. Detective Sabadin told him not to speak about the investigation until he had made a decision as to whether he wanted to speak to a lawyer or not.

[242] Further, an important consideration is that the evidence obtained during the execution of the search warrant at Mr. Cofell’s residence would have been obtained even if Mr. Cofell had not been arbitrarily detained. The total lack of causal connection between the section 9 breach and the obtaining of the evidence significantly mitigates the impact of the breach on Mr. Cofell’s Charter-protected interests.

[243] In light of the foregoing, this factor favours the admission of the evidence.

[244] Society’s interest in the adjudication of the case on its merits. The offences alleged in this case are serious. The evidence in issue is reliable and critical to the Crown’s case. As the Supreme Court of Canada stated in Spencer at paragraph 80, “[s]ociety undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children.”

[245] This factor favours the admission of the evidence.

[246] Conclusion under section 24(2) of the Charter. Balancing all the factors, I conclude that the admission of the evidence obtained during the execution of the search warrant at Mr. Cofell’s residence would not bring the administration of justice into disrepute. While the conduct of the police demonstrated ignorance of Charter standards, the impact on Mr. Cofell’s Charter-protected interests was not significant given that the police was lawfully in his apartment to execute a search warrant, the evidence was discoverable and there is no causal connection between the Charter breach and the obtaining of the evidence. Further, the evidence obtained during the execution of the search warrant is reliable and critical to the Crown’s case, the offences are serious and society’s interest in adjudication on the merits is high.

III. CONCLUSION

[247] Accordingly, the Crown’s application is granted and Mr. Cofell’s application is dismissed.

Vermette J.

Released: December 18, 2024

[^1]: A hash value is a number that uniquely identifies the contents of a digital file. It is generated by applying a mathematical algorithm to a file. The hash value of a file will only change if the contents of the file are changed. The chance of two files with different content sharing the same hash value is infinitesimal.

[^2]: This is based on the wording of section 24(2) which provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

I. BACKGROUND

A. Relevant programs, systems and technology

B. Beginning of the investigation and two production orders

C. Search warrant

D. Execution of the search warrant and detention of Mr. Cofell

E. Arrest of Mr. Cofell

F. Mr. Cofell’s Statement

G. Evidence of DC Kidd on technological issues

H. Examination and review of seized devices by Detective Sabadin

II. DISCUSSION

A. Voluntariness

1. General legal principles

2. Positions of the parties

3. Analysis

B. Section 8 – Use of CPS

1. Decision of the Supreme Court of Canada in Bykovets

2. Subsequent decisions that applied Bykovets

3. Decisions dealing with CPS or similar tools decided before Bykovets

4. Positions of the parties

i. Position of the defence

ii. Position of the Crown

5. Analysis

i. No state action

ii. No reasonable expectation of privacy

C. Section 8 – Failure to comply with the scope of the search warrant

1. Positions of the parties

2. Analysis

D. Section 9 – Arbitrary detention

1. General legal principles

2. Positions of the parties

3. Analysis

E. Section 24(2) analysis

1. General applicable principles

2. Positions of the parties

3. Application to the facts of this case

III. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 4

Legislation 2