Constitutional Law – Charter of Rights, Section 8
Criminal Law – Sexual Touching – Child Victim
The accused was charged that she did, with a sexual purpose, invite a person under the age of 16 years to touch a part of her body contrary to s. 152 of the Criminal Code. The case involved alleged improper acts by the accused with respect to her eight-year-old son. The information regarding the alleged incident had been given by the accused’s son to her husband. The parties were separated. The husband apparently involved a child protection worker, who interviewed the child. After this RCMP were contacted. On the basis of an RCMP’s affidavit, an ITO was prepared and a search warrant obtained. During the search, the accused’s cell phone was seized and photographs were found on it. They showed the accused lying naked on a bed with her breasts and vaginal area covered and showing her son in his pajamas, holding a bottle of lotion and touching her legs, feet and stomach. Before trial, defence counsel requested that a voir dire be held for the purpose of determining whether the information to obtain the search warrant (ITO) was sufficiently defective that the warrant was invalid, thereby infringing s. 8 of the Charter and that the evidence obtained should be excluded. The ITO did not allege that the commission of sexual assault or the creation of child pornography. The search warrant though authorized a search for images of explicit sexual activity with a person under the age of 18, with emphasis on sexual organs and the anal region, which were not related to the offence alleged to have been committed and was not supported by the ITO. The warrant authorized the search and search of devices that included cameras capable of storing images or data and computers or any other electronic devices as well as conventional photographs depicting sexual activity as described above. However, the warrant to search specifically stated that the police were authorized to search for the said “things and to bring them before or some other justice”. When the search warrant was executed, about three constables and a social worker went to the accused’s home. She was in her bedroom and was very upset when advised that there would be a search of her house. She was arrested for obstruction when she objected to the police looking at a computer, taken into custody and removed from the house to a police vehicle. During the ensuing search, one officer looked through a computer, searching for pictures. He testified that he had done so as “previewing for relevancy” and had in fact, found relevant photographs. Another constable, who had not reviewed the warrant, searched the accused’s purse and found a cell phone, which was an item not included in the warrant. Other issues raised by the defence included that the information contained in the affidavit had not met the test of establishing that an offence had been committed and that misleading information had been included. The affidavit had identified that the search was for explicit sexual pictures that did not correspond to the information obtained from the child, who was the only source of information of the alleged offence. The information in the ITO came from a number of different sources, including the original complaint by the accused’s husband who was engaged in a matrimonial dispute with her. The husband had made a number of complaints against his wife in the past, none of which resulted in a conviction. The officer who swore the affidavit had not differentiated between information obtained by him and information from third party sources. The officer also set out information, including photographs, he had obtained from an Internet search that pertained to the accused as a lingerie model. The purpose of including the information was not made clear. The officer did not disclose in the ITO the detailed nature of the information disclosed by the child to the child protection worker, which would have had the potential to detract from the likelihood of an offence having been committed, such as the accused asking her son to massage her because she was sore. The child stated that he did not believe that he had been sexually abused. Furthermore, the child identified the photographer, but the police had not interviewed him. The issues before the Court were: 1) if the Warrant to Search was valid in view of the issues raised with respect to the completeness and validity of the ITO; 2) if the search of the computer conducted on the premises was legal, either because of the rules established in R. v. Vu or because of the wording of the warrant itself; and 3) if there was a breach or breaches of the Charter, should the evidence be excluded?
HELD: The Court found with respect to the issues that: 1) the ITO could not support the issue of the warrant by a justice acting judicially in considering the effect of the statements in the ITO regarding modelling and the omission of the information in the child protection worker’s report, that the husband of the accused had previously made allegations against her, the misleading statement in the ITO concerning the specific types of pictures that the officers would search for, suggesting an investigation of more serious activity not supported by the information provided. The Warrant to Search was a nullity and the search unlawful; 2) the search of the computer on the premises was illegal both in terms of its violation of the terms of the warrant and because the Supreme Court decided in Vu that a warrant must expressly grant the authority to search a computer; and 3) the evidence from the illegal search of the computer was excluded. The breach of the accused’s s. 8 Charter right was serious because of the negligence shown by the police in their investigation of the complaint, the drafting of the ITO and the execution of the warrant. The impact of the breach on the accused was serious. Her entire home was unlawfully searched as well. The effect of the search was emotional and upsetting to the accused and resulted in her arrest. The interests of society in the administration of justice will be protected because the exclusion of the evidence would not be determinative of the Crown’s case.