Sep 30, 2015

Summary of R v Varty

R v Varty, 2015 SKQB 51 (CanLII)
Criminal Law – Child Pornography – Make Available
Constitutional Law – Charter of Rights, Section 8

The accused was charged with possession, accessing and making available child pornography contrary to ss. 163.1(4), 163.1(4.1) and 163.1(3) of the Criminal Code. The accused challenged the validity of a search warrant executed by the police pursuant to s. 8 of the Charter and the exclusion of the evidence under s. 24(2). The charges arose after an RCMP officer, working in the Saskatchewan Internet Child Exploitation Unit, conducted a search of the Ares file sharing network and identified a computer suspected to be accessing child pornography. Between that date and January 17, 2013, the officer was able to download files from that IP address, all of which appeared to contain child pornography. After the last date, he was unable to download again but was able to observe files logged to the address that he suspected were also child pornography. The officer made a law enforcement request (LER) directed to the internet service provider (ISP) to obtain the name and address of the person connected to the IP address. At that time, this was the method used by the police across the country to acquire information necessary to this kind of investigation until the Supreme Court prohibited it in R. v. Spencer. The ISP provided the name of the accused and gave his address as a legal land description, the post office box and the nearest town’s name. To draft the information to obtain (ITO), the officer checked with SaskEnergy and the local RCMP detachment regarding the address and confirmed that the land description was the proper address. He then drafted a search warrant describing the land by quarter section, knowing that there were several buildings on the site and the justice of the peace issued it on March 27, 2013. The officer and seven other police officers executed it and seized two computers from the accused’s residence. The computers were later searched at the RCMP detachment. The grounds of the challenge were that: 1) the LER directed to the ISP was not lawful; 2) the warrant contained an overly broad description of the land to be searched; 3) the ITO upon which the warrant was based had grown stale since it was issued two months after the last date that files were downloaded from the accused’s IP address; and 4) the subsequent forensic examination of the computers required another search warrant.
HELD: The court dismissed the application and admitted the evidence. It found with respect to each ground that: 1) the submission of the law enforcement request for subscriber information constituted a breach of the accused’s s. 8 Charter right; 2) the land description for the accused’s premises as set out in the ITO was sufficiently precise in the circumstances. The police took all reasonable steps to ascertain and identify the premises in the ITO; 3) the currency of the information was only one factor to be considered in the totality of the circumstances of the case. A brief period of illegal activity here was sufficient to demonstrate a pattern capable of supporting the belief that evidence would be found at the targeted location some time later. The justice of the peace was entitled to infer that the information contained in the ITO was sufficiently credible and reliable to support an inference that child pornography remained on the accused’s computer two months later; and 4) the ITO showed that the offences under investigation were computer-based and it listed all the things that would afford evidence of the offences such as computers, hard drives, flash drives and data stored within. The justice of the peace would be able to infer that the police sought authorization to examine any of the things seized pursuant to the warrant. As a result of the breach of the accused’s s. 8 right because of the use of the LER, the court conducted a Grant analysis to determine whether the evidence should be excluded. It found that LERs were accepted police practice at the time. The violation was not serious. However, it had a serious impact upon the accused and that reason favoured exclusion. The evidence was essential to establishing that the accused had committed the offences. The court concluded that it would be in society’s interests to admit the evidence.