Reasons for Judgment
Court File No.: CR-24-30000193
Date: 2025-01-16
Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
Christopher Daniels
Appearances:
Devin Harm, for the Crown
Boris Bytensky, for the Defendant
Heard: October 23-28, 2024
Dineen J.
Introduction
[1] The defendant, Mr. Daniels, is charged with 17 counts of child luring by means of telecommunication contrary to s. 172.1 of the Criminal Code. The charges relate to chats using the Skype app that appear to have taken place between 2016 and 2018. These chats were discovered on a hard drive seized from the defendant’s residence pursuant to a search warrant on August 4, 2021.
[2] The search warrant was issued after the Toronto Police received a report that on January 26, 2021, child pornography had been shared over the internet by a computer using an IP address used by the internet service provider Rogers in Toronto and that the police ultimately determined had been used on that date from a residence at which the defendant lived with two other persons.
[3] Evidence associated with the child pornography offences was located in the basement in a bedroom that appeared to be the defendant’s. A subsequent examination of a laptop computer in the bedroom led to child pornography charges which were ultimately stayed for a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms on September 27, 2024.
[4] The evidence underlying the child luring charges in this proceeding was found when the officer in charge was, pursuant to the warrant, reviewing a hard drive that was also located in the defendant’s room and that appeared to have been extracted from a computer.
[5] The defendant has applied for the exclusion of this evidence, alleging breaches of his s. 8 and 10(b) rights. This case was tried before me without a jury as a blended voir dire.
[6] The defence alleges three independent breaches of s. 8. First, the defence submits that in light of the Supreme Court of Canada’s decision in R. v. Bykovets, 2024 SCC 6, the defendant’s rights were violated when the police obtained and made use of his IP address without prior judicial authorization. Second, the defence submits that at least some of the chats that form the basis of the Crown’s case were discovered in the course of a search that went beyond the scope of what the warrant legitimately authorized. Finally, the defence argues that after the resolution of the child pornography charges, the seized evidence was no longer lawfully detained.
[7] The defence also argues that the defendant’s s. 10(b) right was infringed during the execution of the search warrant and following his arrest in that the informational and implementational components of the section were unreasonably delayed and the defendant was steered to duty counsel despite an expressed wish to speak to counsel of choice.
[8] I will address the alleged Charter violations in chronological order of the underlying events.
The Bykovets Issue
Factual Background
[9] The investigation that resulted in the defendant’s arrest began with a report from the National Center for Missing and Exploited Children, or NCMEC, a body established under American law that receives mandatory reports from companies that provide internet services who become aware of child pornography or other evidence of child exploitation on their systems.
[10] The report in question was from Microsoft and included information that on January 26, 2021, three images suspected to be child pornography were shared over Skype, an application operated by Microsoft. The report included the username said to have uploaded the images – “live.rockstar.thunder” – and the IP address used by that user which appeared to be from Canada.
[11] NCMEC forwarded this report to the National Child Exploitation Crime Centre or NCECC, which is operated by the RCMP as a point of contact for this type of report and whose role includes identifying the appropriate police force to investigate them. The RCMP determined that the IP address in question was operated by Rogers. It confirmed this with the company and determined that on the date in question the IP address was in use in Toronto.
[12] The report was accordingly forwarded to the Toronto Police Service and assigned to D.C. Tamas. She prepared an MLAT application to seek more information about the Skype user responsible for uploading the images, and on April 20, 2021 she obtained a production order to obtain the subscriber information for the IP address from Rogers. This was the first time that judicial authorization was sought with respect to the IP address in question or information relating to it.
[13] D.C. Tamas testified that the police’s practices have changed following the release of the Supreme Court of Canada’s decision in Bykovets on March 1 of this year. Her actions were in line with the practice at the time, but had the investigation taken place post-Bykovets she would have sought a transition data production order at the outset before making any use of the IP address.
The Alleged Charter Breach
[14] In Bykovets, the Supreme Court held that a reasonable expectation of privacy attaches not only to the subscriber information associated with an IP address, as had been recognized in R. v. Spencer, 2014 SCC 43, but also to the very IP address itself. The majority held:
IP addresses are not just meaningless numbers. Rather, as the link that connects Internet activity to a specific location, IP addresses may betray deeply personal information — including the identity of the device’s user — without ever triggering a warrant requirement. The specific online activity associated with the state’s search can itself tend to reveal highly private information. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought.
On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
[15] The defence accordingly submits that the defendant’s s. 8 right was breached both when the police obtained the IP address and took investigative steps concerning it without prior authorization. Mr. Bytensky acknowledges that the police acted reasonably in accordance with what was understood to be the law at the time but submits that this is relevant to s. 24(2) rather than to the issue of whether a breach has been established.
[16] With respect to the initial provision of the IP address in the NCMEC report, the Crown submits that the Canadian authorities were essentially a passive recipient of this information and that receiving what amounts to a tip from a foreign law enforcement service is not a state action engaging the Charter. The Crown relies on R. v. Leger, 2024 NBKB 72 and R. v. Prys ABCJ 166 in support of this submission. Similar conclusions were reached in R. v. Pengelly, 2024 SKKB 192 and in a slightly different factual context in R. v. Cofell, 2024 ONSC 7151.
[17] The Crown further submits that the NCMEC report also contained only a “snapshot” of user activity for the IP address relating to the transmission of child pornography, and that no reasonable expectation of privacy on behalf of the defendant attaches to this.
[18] The defence disputes the submission that the Canadian authorities can properly be treated as passively receiving a tip. Mr. Bytensky relies on R. v. Orlandis-Habsburgo, 2017 ONCA 649, in which Doherty J.A. held that the provision of energy consumption data from an energy provider to the police engaged s. 8 notwithstanding that the police did not request this data. In that case, he relied on a pre-existing relationship between the energy provider and the police service in which there was a regular flow of information to the police, some of which was prompted by a police request and some of which was not, in pursuit of their mutual interest in identifying marihuana grow operations. In those circumstances, Doherty J.A. concluded that in the context of such a relationship, the provision of information was not the equivalent of a situation where a member of the public volunteered private information on their own initiative.
[19] I do not see the relationship between NCMEC and NCECC as perfectly analogous to the situation in Orlandis-Habsburgo. On the record before me, NCMEC is not seeking out information at the request of Canadian authorities, the relationship exclusively involves NCMEC forwarding information gathered about potential criminal activity obtained by operation of American law.
[20] However, I have concluded that I need not decide whether the implication of Bykovets, R. v. Lambert, 2023 ONCA 689, and Orlandis-Habsburgo is that the receipt of the IP address in the circumstances of this case amounted to a seizure within the meaning of s. 8. Whether or not this is the case, I find that the police’s reliance on the IP address in seeking further information about its use and location at the relevant time before they sought judicial authorization engaged the defendant’s reasonable expectation of privacy. This conclusion seems to me to be compelled by paragraphs 41-42 of Bykovets. The police were attempting to connect the IP address to the location where it originated in order to link it to specific user activity, the very privacy-engaging use relied upon by the majority in Bykovets. D.C. Tamas acknowledged that the practice about this has changed in response to that decision and that prior judicial authorization is now sought before any such steps are taken.
[21] No criticism can reasonably be levelled at the police for their treatment of the NCMEC report given their reasonable understanding of the state of the law at the time. For this reason, as I will later discuss, I would assign this breach limited weight under s. 24(2), but I accept that a breach is established.
The Right to Counsel Issues
Factual Background
[22] As I have mentioned, the police obtained a warrant to search the defendant’s residence in reliance on the subscriber information received from Rogers. The search warrant was authorized for August 4 between 6:00 a.m. and 9:00 p.m. Nine police officers including D.C. Tamas arrived at the residence and knocked on the door shortly after 6:00 a.m. It was answered by Steven Weeks, another resident of the house. D.C. Tamas said that she was there to execute a search warrant and they entered the residence. Police located Mr. Daniels in the basement and the house’s third resident, Diana Daniels, in an upstairs bedroom. Both were brought to the living room.
[23] At 6:28 a.m., D.C. Tamas began audio recording and explained to the three people in the house that they were executing a criminal search warrant, provided them with a copy, and asked them to stay in the living room while the police searched the house. She read them a primary caution but did not inform them of their right to counsel. D.C. Tamas testified that she did not realize until later that she had not provided the right to counsel and that she simply forgot to do this because she was distracted by other events including Mr. Weeks expressing great dissatisfaction with the police’s presence.
[24] At 6:35 a.m., D.C. Alexa informed D.C. Tamas that he had found relevant evidence in the basement. She accompanied him downstairs and was shown a document with usernames and passwords including one associated with the account that had uploaded the child pornography. She concluded that she now had grounds to arrest the defendant who had been found in the basement and who appeared to be its primary occupant. She did so at 6:38 a.m. She informed him of his right to counsel and repeated the information at 6:40 a.m.
[25] D.C. Tamas read the right to counsel directly from her memo book with one exception: she did not ask him if he wanted to call a lawyer “now.” She testified that this was because she was of the view that she would not be able to facilitate an immediate call. She cited a number of reasons for this. These included that the other residents of the house appeared to be actively looking for contact information for a lawyer which they had not yet found, that the police did not have a cell phone with them that they could give him to use, and that they would not have been able to provide him with privacy at the house. In addition, she had called for a wagon to bring the defendant to the police station and did not know when it might arrive. At this time, Covid protocols meant that arrestees were not brought to the station in ordinary police cars.
[26] The wagon did not arrive at the house until 7:45 a.m. During the intervening time, police officers took statements from Mr. Weeks and Ms. Daniels and continued to search the basement for more evidence. D.C. Tamas made sure she had contact information for counsel of choice whom she planned to call from the police station. The defendant sat in the living room waiting and no effort was made to facilitate the implementation of his right to counsel.
[27] The defendant was booked and paraded before the booking Sergeant between 8:26 and 8:41 a.m. At that time, D.C. Tamas phoned the number Mr. Weeks had provided to her at the scene for a lawyer named Allen Sobcuff. She reached his voicemail which directed callers to phone another number, which she then did. There was no answer and no voicemail at the second number. D.C. Tamas then decided to call duty counsel. She did not speak to the defendant first to ascertain whether he wanted to speak to duty counsel, to speak to a different lawyer, or to wait and try Mr. Sobcuff’s number again.
[28] The call to duty counsel was placed at 8:53 a.m. and the defendant subsequently spoke to duty counsel. At the start of his police interview at 9:49 a.m., the following exchange took place:
DC Tamas: ...we did find a lawyer. Like I got a name for your... we called that lawyer for you, but he is not picking up his phone and I couldn’t leave a voicemail for him.
The Applicant: Oh.
DC Tamas: So that’s why I called duty counsel.
The Applicant: Yea, she is going to phone, I don’t know who my uncle phoned, but she’s going to phone the other gentleman I was describing. My uncle probably called someone different. I don’t know who he would have called ... but duty counsel is going to phone the gentleman I was talking to you about. Okay, perfect.... Maybe they have a better.... One of them is bound to answer. Right now, it’s just duty counsel.
DC Firth: Okay, so at this point you have spoken to duty counsel though, right?
The Applicant: Yeah, I just talked to them.
DC Firth: I don’t want to know what your conversation was, but are you satisfied with any advice that she’s given you at this point? Yeah? So, I’m just going to go backwards a little bit there…
[29] The Crown is not tendering the resulting statement in evidence.
Findings
[30] The defence contends that these events gave rise to four independent breaches of s. 10(b):
- The initial delay to inform the defendant of his right to counsel upon detention;
- The failure to ask if he wanted to call a lawyer “now” upon arrest;
- The lengthy delay in implementing the right to counsel that resulted from the wait to transport the defendant to the police station; and
- Insufficient attention to the right to contact counsel of choice.
[31] The Crown concedes all of these breaches except for the third, while making arguments in mitigation that I will consider in the context of s. 24(2).
[32] I am satisfied that all four breaches are established. After he was belatedly advised of his right to counsel, the defendant waited in the living room for more than an hour while under arrest with no ability to access legal advice. I find that this was an unnecessary and unjustified delay, that a private phone call could have been arranged at the residence, and that efforts should have been made to facilitate this when the police were facing an open-ended and potentially lengthy delay before the defendant could be brought to the police station.
[33] I appreciate the Crown’s submission that in cases of this type, electronic evidence might be hidden on very small devices that could be well-concealed in rooms that had seemingly been cleared, and that the use of electronic-sniffing dogs is sometimes employed. But I heard no evidence that this was to be done during the execution of this particular warrant and I cannot see any reason that the police could not have concluded their search of some small room that could be used to provide the defendant with a phone and privacy to contact counsel. There is nothing in the record that would lead me to conclude that the police intended to freeze all rooms in the residence for an extended period of time to scour the house for additional electronic evidence.
[34] The Crown relies on the decision of Garton J. in R. v. Francis, 2023 ONSC 1095 as authority for the proposition that an opportunity to consult with counsel at the scene of the execution of a residential search warrant is not realistic. In that case, the warrant was executed by the ETF and the defendant had a significant criminal record of drug trafficking, an activity known to be connected to the possession of weapons. In those specific circumstances, Garton J. found that “Mr. Francis could not have been left alone in a room because of the risk that he could escape, tamper with evidence, or have access to weapons.” I see no reason to believe that those dangers were present in this case.
[35] I accordingly accept that the defendant’s right was breached as alleged.
Whether the Search of the 2016-18 Skype Chats Required an Additional Warrant
Factual Background
[36] The police’s forensic examiner on the case, D.C. Kidd, testified that during the execution of the warrant, he seized two devices from what appeared to be the defendant’s bedroom in the basement. The first was a laptop that was set up at the foot of the bed and the second was an internal laptop hard drive that had been removed from its computer but that could be connected to a computer through a USB port.
[37] D.C. Kidd created mirror copies of both the hard drive found inside a laptop and the second internal hard drive. The police used a tool called Axiom to extract data from the mirrored devices and to look for relevant evidence on the hard drives.
[38] The Skype chats that are the foundation of the Crown’s case were located by D.C. Tamas. Before discovering them, she examined the hard drive found inside the laptop that had been found open in the bedroom and discovered child pornography, including the images that were the subject of the NCMEC report.
[39] The Skype chats were found on the other hard drive that had been apparently removed from a laptop before its seizure. D.C. Tamas testified that she examined all of the chats to see if the images from the NCMEC report were saved in another form as part of the chats. This could permit her to either identify the victim depicted in the images or find another offender who might have supplied the images to the defendant.
[40] D.C. Tamas testified that she was not looking for the luring evidence but simply came across it while looking for evidence relevant to the child pornography investigation. She was unable to say what date she found the first evidence of luring or which chat she discovered first, but she sought the preservation of data from Microsoft as part of the luring investigation on October 28, 2021 and prepared the additional charges on November 25 of that year.
[41] She located a total of 17 different chats in which a Skype user she believed to be the defendant engaged with someone who identified themself as a girl under 18 and invited sexual interactions, the majority of which involve him asking them to watch him masturbate but some of which involve him soliciting nudity from his interlocutor. All of these chats took place between 2016 and 2018 using a different Skype username than the one that uploaded the child pornography in 2021.
[42] D.C. Tamas testified that she searched all the chats on this hard drive and found these 17 independently chat-by-chat. She never looked specifically for luring evidence, she believed the defendant might have received the images he uploaded in 2021 between 2016-2018 and was looking at the chats for this purpose.
[43] The warrant permitted the search of:
Computer files including but not limited to address/phonebooks, diaries, chat logs, emails that may assist in identifying other offenders who may be providing the suspect with child pornography and/or to whom the suspect is providing child pornography, and/or identifiers of victims of the offences listed in Appendix B
[44] The offences listed in Appendix B were the possession, accessing, and making available child pornography by an unknown person on January 26, 2021.
The Positions of the Parties
[45] The defence submits that the search of the Skype chats disclosing the evidence of luring was outside the scope of the warrant and effectively constituted an independent search for evidence of a completely separate offence. To the extent that D.C. Tamas legitimately stumbled across some evidence of luring while looking for evidence relating to the January 26, 2021 child pornography offences, Mr. Bytensky submits that she should have sought a further warrant to review all of the chats for evidence of luring. He relies on R. v. Jones, 2011 ONCA 632, a case in which a police search of a computer for evidence of fraud resulted in the discovery of child pornography and where the police then broadened the scope of their search to seek more evidence of child pornography without seeking a further warrant. Blair J.A. held for the Court at paragraphs 42-44:
I do not accept that the right to examine the entire contents of a computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint -- even where, as here, the warrant may properly authorize unlimited access to the computer's files and folders in order to accomplish its search objectives. A computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant.
Here, that focus has been accomplished not by limiting access to the contents of the computer but -- as described above -- by framing the type of evidence that may be sought (evidence relating to the e-mail transmissions and to counterfeit images) and the crimes to which that evidence relates (possession of stolen property and forgery). The focus on the type of evidence being sought, as opposed to the type of files that may be examined is helpful, it seems to me, particularly in cases where it may be necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged.
To the extent they are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking.
[46] The defence notes that Jones was cited with approval by the Supreme Court of Canada in R. v. McGregor, 2023 SCC 4, a case in which the police found evidence for an offence not covered by their warrant during a digital search, set the evidence aside, and sought a warrant that would authorize an in-depth analysis of that evidence. Mr. Bytensky submits this is the very process that should have taken place here.
[47] The Crown submits that the search of all of the Skype chats was justified by the warrant and had concurrent purposes of seeking evidence of luring and of the original child pornography offences. Mr. Harm notes that the police witnesses testified that they are trained not to look too narrowly through computer files because metadata can be manipulated and relevant evidence can be missed if officers rely on apparent dates or keywords or file types to limit their search. Given that the investigation began with the uploading of child pornography on Skype, Mr. Harm submits that the police necessarily needed to review all Skype chats.
[48] There is no doubt force in the Crown’s argument. I accept that D.C. Tamas believed that her reading of all of the impugned chats was justified by the warrant and this seems to me to be an understandable interpretation of the warrant. I also accept that, notwithstanding that these Skype chats were employing a different username from the one that uploaded the child pornography, were found on a different hard drive not connected to any computer at the time of seizure, and appeared to be three or more years before the offences listed in the warrant, it was reasonable for her to take a cursory look to see if they might include images that were related to the January 26, 2021 offences and so might assist in locating the victim or other relevant offenders. This is not a case like Jones where there was no imaginable connection between the offence underlying the warrant and the offence unexpectedly discovered in the course of the search.
[49] Nonetheless, I have concluded that the close line-by-line reading of these chats that evidently took place went beyond what was reasonable to search for evidence of the offences listed in the warrant and effectively became a warrantless search for evidence of child luring. D.C. Tamas could not say what evidence of luring she discovered first or precisely when she found it. Accepting that she legitimately discovered some portion of this evidence while doing a search authorized by the original warrant, and accepting that she could at least look through the chats in a cursory way to see if the child pornography she was seeking was present, in my view she should have sought a further warrant before undertaking a close read of these stale-dated chats with no apparent connection to the 2021 offences.
[50] I appreciate the evidence that metadata including records of dates and times is not necessarily reliable and can be altered. It may well make sense in many situations for the police to cast a broad net in taking a first look through seized computer files for this reason. But the line-by-line reading of all private communications found on an electronic device is an extremely intrusive investigative step and I do not believe it should be too quickly justified by the general theoretical possibility that metadata can be altered or wrong. In this particular case, there is no apparent reason to doubt the dates of the Skype chats in question and nothing in the record to suggest that anyone did doubt them. The conclusion that they were relatively old was consistent with the fact that they were found on what appears to have likely been an old hard drive not in active use and were created using a different Skype user account than the one associated to the 2021 offence.
[51] Accordingly, I accept that the search carried out exceeded the scope of the warrant and amounts to a further breach of s. 8.
Were the Police Entitled to Continue Holding the Electronic Items Seized After the Stay of the Child Pornography Charges?
[52] Finally, the defence notes that the Report to Justice and s. 490 detention order covering the seized electronic evidence permitted the authorities to retain the items until the conclusion of the child pornography proceedings. Mr. Bytensky submits that the police were obliged to obtain a further order to continue to detain the items for the purpose of the separate subsequently-laid luring charges at issue in this trial following the judicial stay of proceedings on the child pornography charges.
[53] The Crown submits that the continuing detention is authorized by s. 489.1(1)(a)(ii):
(1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as practicable,
(a) Return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that:…
(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).
[54] I agree with Mr. Bytensky that on a plain reading of s. 489.1, it does not authorize the unlimited retention of things seized as long as they are needed for any investigation or proceeding without any supervision by the courts. Rather, it requires that a continuing detention for such a purpose be dealt with under s. 490 by means of a report to a justice and orders authorizing any continued detention where such a need is present. While the failure to seek a further order in this case after the disposal of the original charges may be an understandable oversight, I accept that it is a technical breach of the Code provisions.
Should the Seized Evidence Be Excluded Pursuant to s. 24(2)?
[55] No issue was taken with the fact that the evidence in question was sufficiently connected to all of the breaches to engage s. 24(2). In assessing whether the evidence in question should be excluded, I must balance the three factors initially described by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits.
The Seriousness of the Charter-Infringing State Conduct
The s. 8 Violations
[56] I find that the seriousness of the three independent s. 8 violations I have found falls at the low end of the spectrum. The failure to appreciate the expectation of privacy in the use of the defendant’s IP address is a paradigmatic example of a situation where the Charter is violated despite the good faith of the police, whose only fault was not anticipating a subsequent change in the law by the Supreme Court of Canada.
[57] While I have found that D.C. Tamas should have obtained a second warrant to conduct an in-depth search of all of the communications on the second hard drive, I accept that she understandably believed that this was not necessary. I find that this is not a case of a police officer showing an unreasonable ignorance of the scope of her authority. Whether or not her actions fell within the parameters of the warrant seems to me to be an issue on which reasonable disagreement is possible.
[58] The failure to obtain a further detention order for the seized items was clearly an oversight and I do not find it signifies any lack of attention to or respect for the defendant’s Charter-protected interests.
The s. 10(b) Violations
[59] By contrast, I find that the s. 10(b) violations are very serious. I do not conclude that D.C. Tamas intentionally breached the defendant’s right. I accept that she forgot to immediately inform him of his right to counsel upon detention in the context of a busy situation where she was dealing with many demands. I also accept that she was generally trying to follow what she understood to be the correct procedure. However, I am forced to conclude that the four separate s. 10(b) breaches establish an unmistakeable pattern of neglect and unreasonable disregard for that right.
[60] I am particularly concerned about the treatment of the defendant’s right to counsel of choice. It appears to me that D.C. Tamas was very cavalier in moving directly to contacting duty counsel without any consideration of whether the defendant would be content with this and that D.C. Firth appears to have simply ignored the defendant when he made comments that should have alerted the officers to the obvious possibility that he still wanted to speak to counsel of choice despite having been put in contact with duty counsel. While the defendant may have indicated agreement when asked if he was “satisfied with any advice that she’s given you at this point,” I find that the overall effect of his words was to clearly convey that he was actively attempting to contact private counsel and was not satisfied with speaking to, as he put it, “just duty counsel at this point.”
[61] I appreciate D.C. Tamas’s evidence that she wanted to ensure that his police interview was completed as soon as possible so that bail could be addressed but these events took place early in the morning and I cannot accept that there was any urgency that could justify the police conduct.
[62] I find that there was a serious and unreasonable inattention to the requirements of s. 10(b) and that this strongly pulls toward the exclusion of the evidence.
The Impact of the Breach on the Accused’s Charter-Protected Interests
The s. 8 Breaches
[63] While the failure to obtain a further detention order is essentially a technical breach, the other s. 8 violations had a powerful affect on the defendant’s Charter-protected interests. The search of his electronic devices and review of years worth of electronic communications is a major intrusion into his privacy. As the Supreme Court of Canada stated in Morelli: “it is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”
[64] The impact is attenuated by the fact that the police undoubtedly had reasonable grounds to obtain the necessary judicial authorizations to connect the IP address with the defendant’s residence and to carry out the initial search and seizure, the only breach at that point being the failure to anticipate the Bykovets decision. This necessarily affects the extent of the defendant’s legitimate expectation of privacy, though the Crown nonetheless fairly concedes that this factor favours exclusion for any breach arising from the use of the IP address.
[65] The line-by-line review of years of electronic communications that I have found to have gone beyond the legitimate scope of the warrant did involve a powerful and intrusive interference with the defendant’s privacy interest.
[66] This factor overall strongly favours the exclusion of the evidence.
The s. 10(b) Breaches
[67] As a result of the breaches, the defendant spent 10 minutes under detention without awareness of his right to counsel and a period of more than two hours under arrest without access to counsel. I also infer from the record that he wished to speak to counsel of choice. The defence did not lead evidence about when this took place but at 9:49 a.m. at the outset of his police interview it had not.
[68] I conclude that this necessarily would have had a significant effect on the defendant. As Doherty J.A. held in R. v. Rover, 2018 ONCA 745, para 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[69] In weighing the impact of the breach, I take into account the lack of a causal connection between the breach and the discovery of the evidence, which is a factor favouring admission: R. v. Keshavarz, 2022 ONCA 312, para 115. There is also no evidence that any statement made by the defendant following the breach was incriminating and the Crown is not tendering the statement.
[70] I nonetheless must consider the serious impact I infer the substantial delay in accessing both counsel and counsel of choice would have had on the defendant’s security of the person interest protected by s. 10(b). See R. v. Samuels, 2024 ONCA 786; Rover at para 47.
[71] I find that this factor favours the exclusion of the evidence.
Society’s Interest in the Adjudication of the Case on Its Merits
[72] As in most cases, the third Grant factor pulls strongly toward the admission of the evidence. In this case, it does so with maximum strength. The evidence in question is reliable electronic evidence and its exclusion will leave the Crown without a case and defeat entirely society’s powerful interest in a trial on the merits.
The Overall Balancing
[73] Despite the undeniable very strong societal interest in a full trial on the merits of these charges, I conclude that the s. 10(b) violations standing alone would warrant the exclusion of the evidence, though this would be a close call. The s. 8 violations pull far less strongly towards exclusion. Only the breach relating to the scope of the warrant carries substantial weight and the s. 8 breaches collectively could not possibly justify exclusion if they stood alone. However, when all of the breaches are considered in combination, I find that exclusion is necessary.
Disposition
[74] The Application is granted and the evidence discovered on the defendant’s electronic devices is excluded. The defendant is accordingly found not guilty.
Dineen J.
Released: January 16, 2025