CITATION: R. v. N.G.G. and M.D., 2026 ONSC 3862

COURT FILE NO.: CR-24-40000550-0000

DATE: 2026-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

N.G.G.

• and -

M.D.

Counsel: Leanna Guzzo and Greg Elder, for the Crown Charn Gill, for the Defendant N.G.G. Marco Sciarra and Laura Metcalfe, Amicus Curiae, for the Defendant M.D.

HEARD: August 18, 19, 21, 22, 25, 26, andSeptember 8, 9, 10, and 12, 2025

REasons ON M.D.’s CHARTER APPLICATIONS

Rhinelander, J.

1M.D. is charged with several offences involving child pornography and sexual assaults. The offences are alleged to have occurred between January 1, 2000, to April 11, 2023.

2The Applicant sought to exclude the following evidence pursuant to section 24(2) of the Charter, alleging breaches of his sections 8, 10(a), and 10(b) rights: i) evidence obtained from the March 29, 2023, Production Order seeking the subscriber information from Rogers Communications Canada Inc.; ii) all evidence obtained from the execution of search warrants for the Brantford residence, the Toronto residence, the LG phone seized from the Applicant at the time of his arrest, and a Samsung phone given to police from the Applicant’s friend; and iii) any information obtained from the statement of the Applicant on April 7, 2023, and relied upon by the police in the information to obtain search warrants.

3On September 12, 2025, I determined the police had violated the Applicant’s ss. 8, 10(a), and 10(b) Charter rights by: i) failing to obtain judicial authorization to use the IP address¹ identified in the Cyber Tipline Report; ii) videotaping the Applicant’s use of the toilet several times while in the holding cell; iii) failure to inform the Applicant of the full reasons for his arrest; and iv) failure to provide the Applicant an opportunity to speak with counsel upon being informed of the additional charges.

4Having found the above Charter violations and having considered the Grant² factors, I held as follows:

• Any references to the IP address in the requests for the production order and subsequent search warrants shall be excised.

• Any references or reliance upon the Applicant’s statements in violation of his 10(a) and 10(b) Charter rights shall be excised from the Information to Obtain search warrants for the Toronto residence, the LG phone, and the Samsung phone.

• The evidence from the Production Order to obtain the subscriber information was admissible.

• The evidence obtained from the Brantford³ and Toronto residences was admissible.

• The evidence of the content found on the cell phones seized from the Applicant’s person upon his arrest, and from the device provided to police from the occupant of the Brantford residence was admissible.

Summary

5On February 7, 2023, a Snapchat user uploaded and stored a video of suspected child pornography to their account.

6On March 6, 2023, the National Center for Missing & Exploited Children (NCMEC) received a report from Snapchat about this incident which included the IP address. NCMEC determined the IP address associated to the Snapchat account was outside the U.S. and located in Canada. The report was forwarded to the National Child Exploitation Crime Centre (NCECC) operated by the Royal Canadian Mounted Police in Ottawa.

7The suspected user was believed to be residing in Brantford, Ontario, resulting in the investigative package⁴ being sent to the Brantford Police Service.

8Officers sought and obtained a production order for the subscriber information relying on the IP address set out in the report. A production order was not obtained for the IP address.

9Upon receipt of the subscriber information for the IP address that included the residential address and subscriber name associated to the IP address, police set up surveillance.

10On April 7, 2023, the Applicant was observed entering the residence. At 1:16 p.m., Det. Korda, the officer in charge of the investigation, was satisfied there were sufficient grounds to arrest the Applicant for making child pornography, making child pornography available, possession of child pornography, sexual assault, and sexual interference. He directed officers to arrest the Applicant.

11The Applicant was arrested later that day at approximately 4:30 p.m. for one count of possession of child pornography. He was handcuffed and searched incident to arrest. A cell phone was found in his front left pants pocket and seized.

12The Applicant was read his rights to counsel at approximately 4:31 p.m. and a caution at 4:33 p.m. The Applicant requested to speak to a lawyer. Due to the lack of privacy, the Applicant was not provided an opportunity to speak with counsel at that time.

13The Applicant was then transported to the detachment by a different officer. During the booking process, the Applicant reiterated his wish to exercise his right to retain and instruct counsel. He did not know a lawyer and was therefore willing to obtain his legal advice from duty counsel.

14The first and only attempt to contact counsel was at 5:01p.m. A voicemail was left for duty counsel, and the Applicant was placed in a holding cell pending a callback.

15Duty counsel returned the call at 5:05 p.m. The Applicant was brought from the holding cell, placed in a private room, and then returned to the cell. An officer testified it takes approximately one minute to transport an individual from the holding cells to the private phone booth. This entire process, which included the time the Applicant spoke to counsel, was no more than three minutes. Therefore, the Applicant would have spoken to duty counsel for approximately one minute.

16Det. Korda, who was on a day off, attended the station to commence work to obtain a search warrant for the Brantford residence in anticipation of the Applicant’s arrest. He was informed of the Applicant’s arrest at 4:26 p.m. While preparing that search warrant, Det. Korda had no contact with the Applicant.

17At approximately 11:58 p.m., Det. Korda commenced an interview with the Applicant, which was audio and video recorded. The statement lasted less than an hour and ended at approximately 12:50 a.m. on April 8, 2023. During this time, the search warrant for the Brantford residence was granted.

18After preliminary introductions, Det. Korda advised the Applicant he was under arrest for one count of possession of child pornography, one count of make child pornography, one count of make child pornography available, one count of sexual assault, and one count of sexual interference. This was the first time the Applicant was informed he was under arrest for five offences and not simply the one count of possession of child pornography.

19Det. Korda was unaware the Applicant had only been arrested on one count. The Applicant, now faced greater jeopardy, was not provided further rights to counsel, or an opportunity to seek further legal advice.

20The holding cell where the Applicant was held at the police station had a concrete/cement bench with a thin blue mattress pad, a metal sink, and a toilet. A video camera located directly across from the cell monitored and captured all activities in the cell.

21The Applicant was provided a large blanket for use in the cell when he was processed. Upon being placed in the cell, the officer advised there was a camera that would record him while in the cell. The officer pointed to where the camera was installed. The Applicant was not provided any instructions regarding the use of a privacy screen or if the camera would not record if he used the toilet.

22From the time the Applicant was placed in the cell until he was removed to be interviewed by Det. Korda, a period of almost seven hours passed. The Applicant is captured on video recordings with audio, urinating four times and defecating on three occasions. When not using the toilet, he is visible on the concrete slab wrapped in the blanket.

23In subsequent days after the Applicant’s arrest, officers obtained search warrants for the Toronto residence, a cell phone seized from his person upon arrest, and a cell phone provided to police by the Applicant’s friend who resided in the Brantford residence.

24A voluntariness voir dire brought by the Crown and a Charter motion alleging violations of the Applicant’s section 10(a) and 10(b) rights were heard together. After hearing evidence, the Crown abandoned its application to introduce the Applicant’s statement and conceded these Charter violations. In doing so, the Crown invited the Court to excise any content from the Applicant’s utterances relied upon by police to obtain subsequent search warrants. With the excised content, the Crown was satisfied sufficient grounds remained for the issuance of the search warrants.

25The Applicant alleged two separate section 8 Charter violations which are identified as follows:

i. The receipt and use of the IP address for further investigation in the absence of prior judicial authorization: the Bykovets issue; and

ii. Monitoring and videotaping the Applicant’s use of the toilet: the Mok⁵ issue.

26During oral argument, the Applicant raised a third s. 8 violation relating to his privacy rights. Police obtained information from Ontario Works without a judicial authorization and included that information in the information to obtain a warrant.

27The Applicant sought to rely on the conceded violations and the cumulative effect if further Charter violations were found when considering an appropriate remedy under s.24(2).

28The Applicant argued the cumulative effect of the alleged Charter violations should result in the exclusion of all evidence obtained from the Production Order and subsequent search warrants.

29It was agreed by all parties that if the IP address obtained from the Cyber Tipline Report and used as a further investigative step without judicial authorization was found to violate the Applicant’s reasonable expectation of privacy, it must be excised from the Production Order of March 29, 2023. In which case, the Production Order and subsequent warrants would not contain sufficient information to have issued, resulting in warrantless searches, and the necessity to proceed to a s.24(2) analysis.

30A section 10(b) motion involving the co-accused, N.G.G., was heard together with this application. It was agreed that all evidence heard on the blended voluntariness and Charter applications of both accused was admissible for my consideration on these applications.

Sections 10(a) and 10(b)

31The Crown conceded, very fairly, that the BPS violated the Applicant’s right to counsel by failing to inform him of all charges he faced when initially arrested, and subsequently failed to provide him with an opportunity to seek legal advice when informed of the additional charges which included making child pornography, making child pornography available, sexual assault, and sexual interference.

32Det. Korda determined grounds existed to arrest the Applicant on the five offences set out above. He informed Staff Sergeant Davies to relay to officers conducting surveillance that the Applicant was arrestable for the five offences. P.C. Fenton arrested the Applicant on a single count of possession of child pornography. Det. Korda was unaware the Applicant had not been arrested on all five counts when he spoke to the Applicant. He appeared genuinely surprised when it was suggested that the Applicant had only been arrested on one count.

33While speaking to an officer collecting information for the bail package and again when interviewed by Det. Korda, the Applicant provided information that connected him to the Toronto residence. This information was subsequently included in the application for the Toronto residence search warrant.

34Having acknowledged and conceded the Charter violations, the Crown withdrew its application to have the Applicant’s statement adduced at trial. Furthermore, the Crown made submissions that any reliance on the utterances of the Applicant should be excised from the applications for the subsequent search warrants, specifically for the Toronto residence, the phone seized from the Applicant, and the phone turned over to police by the Applicant’s friend.

35This was not a systemic or deliberate disregard of the Applicant’s rights to counsel but appeared to be a miscommunication between the different officers relaying information. Having considered the Grant factors, the appropriate remedy was to exclude the utterances and statement of the Applicant and excise any references to information relied upon in the subsequent search warrants for the Toronto residence and the cell phone turned over by his friend.

36The Crown argued the subsequent warrants could still have issued with these proposed excisions. I agreed.

37Initially the Applicant withdrew his Charter application on this issue upon confirmation of the Crown abandoning its application to adduce his statement at trial and the excision of any references to the information obtained from the Applicant from the subsequent search warrants. After further consideration, the Applicant asked the Court to consider this breach when considering the section 24(2) analysis relating to all Charter violations I may find. I will come back to this issue when considering the s.24(2) analysis.

Section 8: Videotaping in Holding Cell

38Following his arrest, the Applicant was audio and videotaped using the toilet several times while in a holding cell at the Brantford Police station.

39Over the past decade, several police services in Ontario, including the Ontario Provincial Police, Toronto Police Services, York Police Services, and Peel Regional Police, have updated their policies and implemented measures to ensure that detainees have privacy when using the toilet: R v. Mok, 2014 ONSC 64, affirmed 2015 ONCA 608; R. v. Persaud, 2017 ONCJ 799; R v. Busch, 2021 ONCJ 716; R. v. Orenchuk, 2014 ONCJ 650; R. v. Griffin, 2015 ONSC 927. The Brantford Police Service has not.

40Courts have recognized persons in custody have a reasonable expectation of privacy and the videotaping of toilet use in cells is a warrantless search. Courts are cognizant security needs are necessary but can be affected with minimal intrusions on the dignity and bodily integrity of detainees. To mitigate such intrusions, police have been cautioned to inform persons detained of the existence of video recording of the entire cell, including the toilet area, and provide or instruct the individuals of the availability of privacy protection should they ask for it. To avoid a violation, there needs to be some restrictions in place to obstruct or interfere with the view. Factors courts have considered in determining whether there has been a breach include a posted notice that the area is subject to surveillance, the location of the cameras, whether the individual was offered a privacy shield/sheet/gown, and technical changes that pixelate or blur the toilet area in a cell.

41The BPS does not have a privacy screen/shield policy in place. Nor does it have signage posted or installed in or near the holding cells to remind prisoners they are subject to video recording when using the toilet.

42As in Orenchuk, para. 59, I understand police policy for videotaping persons held in holding cells including their protection and that of officers, however, it has been over a decade since the release of Mok and several other cases on this very issue. I would have thought every police service in Ontario would have initiated and taken precautions to respect the dignity and bodily privacy of individuals held in custody at the police station.

43Although the BPS advised the Applicant the cell area was being videorecorded and pointed in the direction of the camera, no other steps were taken. No signage was posted in the cell; no privacy gown/shield/sheet was offered; no technological blurring or restriction on the recording was in place; and there was no muting of the audio during toilet use.

44A blanket was provided to the Applicant during the booking process, however, given its bulk and size as seen on the recording, it would have been cumbersome to use as a privacy shield in addition to hygiene concerns: Busch, at para. 29.

45The video was played in court. I am satisfied the Applicant was aware of the camera. The videorecording with audio depicts an officer explaining to the Applicant that the entire cell is being videorecorded and pointed in the direction of what is believed to be the camera which would clearly capture the toilet area.

46The Applicant’s mannerisms and behaviour when using the toilet were consistent with an individual aware and cognizant of being watched or recorded. This does not diminish the indignity of both the audio and video recording of his use of the toilet.

47When urinating, the Applicant’s back was to the camera. He can be seen standing in front of the toilet. On no occasion did he lower his pants in the back area. Although his genitalia were not visible, a urine stream can be seen and the sound heard.

48When the Applicant used the toilet for a bowel movement, he ensured his shirt covered his genitalia and kept his lower garments positioned above his knees while seated on the toilet. Again, the fact he took these precautions does not lessen the lack of dignity and humiliation he must have felt. The only reason his genitalia were not visible during his bowel movements was directly attributable to his actions in ensuring his clothing provided coverage. In addition to being videotaped while defecating, there was audio.

49I agree with Duncan, J. in Busch, that “focusing on genital exposure misses the point of the privacy interest involved.”: para. 30. It is the act of using the toilet, especially during defecation, that is an affront to personal human dignity. At para. 31, Duncan, J. commented that “Even couples and partners who have been together for years expect privacy from the other and lock or at least close the bathroom door for such moments.”

50While not as egregious as other cases, I determined the videorecording of the Applicant using the toilet without having adequate measures in place to ensure a reasonable degree of privacy was an infringement of his Charter rights pursuant to section 8.

51The Applicant acknowledged if I found a breach of his Charter rights for the videorecording, it was not sufficient on its own to warrant exclusion of evidence seized but argued the need to consider it in totality with any or all other breaches of his Charter rights I may find.

Section 8: Bykovets issue

52In this case, the NCMEC received a report from Snapchat on March 6, 2023, about a user who had uploaded and stored one video of suspected child pornography to their Snapchat account on February 7, 2023. They determined the user was outside the U.S. and forwarded the report to the NCECC who distributed the report to the local police service where the IP address was believed to be located.

53The BPS commenced an investigation into the user of the Snapchat account relying on the IP address in the report. A production order was obtained for the subscriber information but not for the IP address itself.

54Eleven months after Det. Korda sought and obtained the production order for the subscriber information linked to the IP address identified in the Cyber Tipline report, the Supreme Court of Canada in a split 5-4 decision recognized a reasonable expectation of privacy with respect to IP addresses: Bykovets.

55The Applicant argued his s. 8 right was breached both when the police obtained the IP address and took investigative steps concerning it without prior authorization. Amicus, on behalf of the Applicant, acknowledged that the police acted reasonably in accordance with what was understood to be the law at the time but argued this is relevant to s. 24(2) rather than to the issue of whether a breach has been established.

56The Crown argued s. 8 does not apply in the circumstances of this case. The mere fact that police come into possession of evidence or information that could advance a prosecution does not entail a state search or seizure attracting s. 8 scrutiny. If police did not actually search for or seize the IP addresses, then it is not protected by s. 8 and there is no basis to excise the IP addresses, or any associated information, from the ITOs: R. v. Lambert, 2023 ONCA 689, at para. 48.

57More specifically, the Crown argued the Canadian authorities are essentially a passive recipient of information with respect to the initial provision of the IP address in the NCMEC report, and that receiving what amounts to a tip from a foreign law enforcement service is not a state action engaging the Charter: R. v. Leger, 2024 NBKB 72, para. 45; R. v. Bodden, 2025 ONSC 2970, at paras. 102 – 113. 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.

58Bykovets has no bearing here, as the investigative steps taken are readily distinguishable from the circumstances in that case. As a result, the IP addresses are properly included in the Information to Obtain (“ITO”) and the authorizations are presumptively valid.

59In R. v. Orlandis-Habsburgo, 2017 ONCA 649, the Ontario Court of Appeal distinguished between the passive receipt of information by the police that occurs somewhat unexpectedly, from an arrangement between the police and a private third party to routinely provide private information of suspicious activity. In that case, the Court found 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.

60Whether s.8 applies in a case of passive receipt will depend on whether the applicant retained a reasonable expectation of privacy in relation to what the police took possession of, in this case – the IP address. Bykovets has made clear there is a reasonable expectation in privacy in IP addresses, and it is the first “digital breadcrumb that can lead the state on a trail of an individual’s internet activity. It may betray personal information long before a Spencer⁶ warrant is sought.”: paras. 8 and 41; R. v. Daniels, 2025 ONSC 344, para. 20.

61In Daniels, Dineen J. also considered whether there was an agency relationship between NCMEC and the RCMP like that in Orlandis-Habsburgo. He concluded that there was not. Dineen, J. did not have the benefit of the evidentiary foundation called on this application.

62In R. v. Asantarajah, 2025 ONSC 1377, paras. 84 – 88, Schreck, J. reviews several decisions post Bykovets in similar circumstances where courts found the passive receipt of IP addresses by the police does not engage s. 8. Ultimately, he determined at para. 89 that Lambert made clear the determination of whether s. 8 is engaged is not dependent on who provided or gave what to whom but rather the effect on the individual’s expectation of privacy.

63Contrary to submissions of the Crown, the relationship between NCMEC and the NCECC is not exclusively the forwarding of information from the NCMEC about potential criminal activity obtained by operation of laws in the U.S. and passively received by the NCECC, but rather a mutual relationship.

64Lindsay Burch, a records specialist for the Exploited Children Division at the NCEMC provided evidence on this application that the NCMEC is authorized to share information only with “approved” law enforcement agencies, which the RCMP has been approved. For another country to receive information, they must be vetted by the FBI and/or Interpol, suggesting an application process or at a minimum the necessity to be approved. The RCMP are also authorized to make requests from the NCMEC which are referred to as “technical assistance requests”.

65Ms. Burch has seen requests for information from Canadian law enforcement agencies during her time at NCEMC. When asked specifically if these requests were accompanied by a judicial authorization, she did not remember seeing one. The sharing of the Cyber Tipline reports in this case, was not triggered by a request from a Canadian law enforcement agency, however, this does not eliminate the arrangement between the agencies.

66In Asantarajah, Schreck, J. determined there was a “longstanding formal arrangement between the NCECC, the NCMEC and similar organizations in other countries to share information pertaining to the distribution of child pornography.”: para. 93. I have also determined from the evidentiary record before me the ongoing arrangement between the NCMEC and the NCECC to share information related to the distribution of child pornography.

67Snapchat is a multimedia instant messaging application and service. One of the principal features of Snapchat is that pictures and messages are usually only available for a short time before they become inaccessible to their recipients. The app has evolved from originally focusing on person-to-person photo sharing to presently users having the ability to share their posts to larger groups of other Snapchat users, for longer durations of times.

68Snapchat’s headquarters are in the Unites States. Under American law, Internet Service Providers are required to submit a Cyber Tipline Report to NCMEC when they become aware of child exploitation material on their systems.

69NCMEC is a private, nonprofit corporation, incorporated under the laws of the District of Columbia and is properly described as such in 18 U.S.C.§ 2258A. NCMEC is not a law enforcement agency. NCMEC’s mission is to help find missing children, reduce child sexual exploitation, and prevent child victimization. NCMEC serves as the national clearinghouse for families, victims, private industry, law enforcement, and other professionals on information and programs related to missing and exploited children’s issues.

70The Cyber Tipline began operating on March 9, 1998. It was created to allow persons to report online child sexual exploitation including child pornography. The mandatory information includes the date, time, and incident type. It does not require the IP address. This information is completed voluntarily by the ISP submitting the form.

71Relying on the IP address identified in the report sent to the NCECC by Snapchat, Det. Korda sought and obtained a production order for Rogers Communications for the subscriber information. Rogers produced the residential address for the IP address and the subscriber’s name, leading to further investigation and the arrest of the Applicant.

72Pursuant to the decision in Bykovets, the Applicant had a reasonable expectation of privacy in relation to the IP address. In the absence of judicial authorization to make investigative use of the IP address, police violated the Applicant’s s.8 Charter rights.

73In Asantarajah, evidence was called regarding what changes have occurred since the Bykovets decision. A TPS officer testified when they receive an investigation package from the NCMEC, it includes a transmission data production order authorizing the police services to use and rely upon the IP address in the Cyber Tipline report. In circumstances where a production order was not done, the officer prepares one: para. 92.

74The Applicant argued the only remedy in the circumstances is excision of the IP addresses, subscriber information and all information relating to the geolocation data. Without this information, the production order and subsequent search warrants could not have issued. The Crown agreed if the Court found a reasonable expectation of privacy in the IP address set out in the report it must be excised, and the production order and search warrants could not have issued.

75The IP address shall be excised from the information to obtain the production order. Without this evidence, the ITO failed to establish grounds to obtain the Applicant’s subscriber information. Without the subscriber information, there were insufficient grounds to issue the subsequent search warrants, resulting in warrantless searches.

Section 8: Ontario Works

76During oral argument, the Applicant raised a further s. 8 violation involving information obtained from Ontario Works. The Applicant argued he had a reasonable expectation of privacy in the personal information provided to Ontario Works. Information was provided to police and relied upon in the production order and subsequent search warrants. The Applicant argued in the absence of judicial authorization; Ontario Works should not have provided information to the police. The ex parte applications were silent on whether the information was obtained lawfully.

77Amicus and crown counsel directed me to the decisions of R. v. South, 2017 ONSC 6356 (Baltman, J.), R. v. Voong, 2018 ONCJ 352 (Libman, J.), and R. v. Lieu, 2021 ONCJ 428 (Ghosh, J.).

78In South, Baltman, J. referred to the decisions of Nordheimer, J. (as he then was) and Code, J., in R. v. Latiff, [2015] O.J. No. 1153 and R. v. Khan, 2014 ONSC 5664 respectively, in reviewing a reasonable expectation of privacy in phone numbers and addresses and reviewed the provisions of s. 32(g) of the Municipal Freedom of Information and Protection of Privacy Act: paras. 71 – 73.

79Section 32(g) of the MFIPPA permits the disclosure of personal information by the City of Brantford to a law enforcement agency in aid of an investigation.

80In Orlandis-Habsburgo, Doherty, J.A. commented that it “must be taken that the holder of the information will make an independent and informed judgement” when exercising discretion to release information under s.32(g).

81Det. Korda sent a request for any information about the Applicant to the audit and quality services desk for the City of Brantford. This is the email address BPS uses for such information. That same day, he received a response identifying the Applicant’s current address on file, a phone number, and information regarding his next of kin. The information also included the Applicant’s last place of employment and date. After this initial information, the officer was provided with the name of the bank and specific branch of the Applicant.

82I find that the Applicant’s s.8 rights were not infringed by obtaining information in this manner.

Section 24(2) Analysis

83Evidence was obtained in a manner that violated the Applicant’s ss. 8, 10(a), and 10(b) Charter rights. The analysis starts from the conclusion that a breach has occurred, “and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system”: Grant, at paras. 68-70.

84I must now assess and balance the effect of admitting the evidence 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 defendant; and

c) society's interest in the adjudication of the case on its merits.

85The Crown conceded the ss. 10(a) and 10(b) violations and withdrew its request to rely on the Applicant’s statement and utterances. Further, any reliance on information obtained from the violations were excised from the warrants. I am satisfied no further remedy is warranted even when considered with the section 8 violations.

86The breach of the Applicant’s s. 8 rights arises from the Bykovets breach was because the police relied upon an IP address without prior judicial authorization. The police relied upon the prevailing law. In other words, at that time, there was no reasonable expectation of privacy in an IP address and judicial authorization was not required prior to relying on or using an IP address to further an investigation. Therefore, the police operated in good faith. As in Spencer, the nature of the police conduct does not tend to bring the administration of justice into disrepute.

87The second Grant factor examines the impact the breach had on the Applicant’s rights. If the impact focused solely on the initial breach of using the IP address, relying on the state of the law at that time, it would have no impact on the Applicant’s Charter protected interests.

88However, like Asantarajah, there were subsequent breaches that included searches of electronic devices and a search of the Applicant’s residence, where he has high expectation of privacy: R. v. Griffith, 2025 ONCA 322, at para. 27.

89This factor leans in favour of exclusion. However, had this investigation occurred after Bykovets, a production order would have been obtained permitting police to use the IP address in furtherance of its investigation which in turn led to the search warrants for the residences and electronic devices, suggesting a less impact.

90Lastly, I must consider society’s interest in having the matter adjudicated on its merits. This factor strongly favours the admission of the evidence. The evidence is reliable and critical to the Crown’s case to establish the sexual assaults on an infant, and two separate children, in addition to the charges of making and possession of child pornography.

91Excluding reliable evidence critical to the Crown’s case would “undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute”: R. v. Beaver, 2022 SCC 54, at para. 131.

92I turn now to consider the balancing of the three factors and the factual background of the entire case including the additional s.8 violation arising from the Mok issue.

93The Applicant argued that the cumulative effect of the infringements of his ss. 10(a), 10(b), and 8 rights should lead to the exclusion of all the evidence obtained.

94Section 24(2) directs courts to exclude evidence “obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter” if satisfied that “the admission of it in the proceedings would bring the administration of justice into disrepute.”

95Having considered the totality of the violations, I am satisfied that exclusion of the evidence would do more harm to the long-term repute of the justice system than would its admission. More specifically, the public would be alarmed by the exclusion of such critical evidence of serious offences based on a breach that arose due to a change in the law after the investigation. Police operated and complied with the law at the time and could not foresee the change in law almost a year later.

Disposition

96The application to exclude evidence pursuant to section s. 24(2) of the Charter is dismissed. The evidence obtained from the electronic devices and the residences is admissible at the Applicant’s trial.

Justice Rhinelander

Footnotes

1. 1As set out in the Supreme Court of Canada’s decision in R. v. Bykovets, 2024 SCC 6, released March 1, 2024, eleven months after this investigation, which held a reasonable expectation of privacy attaches to IP addresses.
2. 2R. v. Grant, 2009 SCC 32.
3. 3No evidence was seized during the execution of the search warrant at this residence.
4. 4The investigative package included two further Cyber Tipline reports from 2017 and 2020 that included IP addresses, usernames, email addresses, in addition to a description of the incident, date, and time.
5. 5R. v. Mok, 2014 ONSC 64
6. 6Referring to R. v. Spencer, 2014 SCC 43.