Constitutional Law – Charter of Rights, Section 8, Section 24(2)
The accused made a Charter application alleging that his s. 8 Charter rights had been infringed and requesting that evidence obtained by the police during the execution of a search of his computer be excluded pursuant to s. 24(2) of the Charter. In a judgment issued in January 2017, the court found that that the accused’s s. 8 Charter rights had been violated but the question of whether the evidence should be excluded was not determined at that time because there had been no evidence presented of either the nature of the evidence nor the location from which it had been seized. The Crown proceeded with its case and called all of its evidence in order for the court to determine the s. 24(2) issue. The accused had been charged as a result of the investigation into a complaint of sexual assault of a minor and sexual exploitation of that minor. A warrant was obtained to determine if there was corroborating evidence to be found on the accused’s computer that would support the statements being made by the complainant. The investigating officer obtained a warrant that authorized a search of the accused’s computer devices. The Information to Obtain (ITO) in support of the warrant sought only a search of the “search history of the computer”. The evidence given by the RCMP computer forensic specialist and an officer from the Internet Child Exploitation (ICE) unit regarding their respective examinations of the accused’s computer indicated that they searched it for child pornography. The officer with ICE did not find any accessible pornography on the computer but found an image in the recycle bin. The other officer used a forensic program to search the computer and it located over 400 images of either child nudity or child pornography. Only 18 files were found in specific locations. The officer testified that it was possible to utilize different forensic tools to restrict an analysis to a specific area of the computer so that he could have obtained only Internet history without extracting any images from the balance of the computer storage locations but did not do so. The accused sought to exclude all of the images of child pornography located on his computer or alternatively, to exclude those images not automatically cached by a web browser during an Internet search.
HELD: The application was allowed in part and the balance of images found on the computer were excluded from the evidence at trial pursuant to s. 24(2) of the Charter. The court found that the evidence found through temporary Internet sites was admissible. The reason for obtaining the warrant was apparently abandoned by the police at the beginning of the search of the computer. The police had no authority to search the computer generally. They were only authorized to look at the Internet history. The search of the non-Internet history was a serious infringement of the accused’s s. 8 Charter right. The temporary files created as a result of the visits on the Internet was evidence of Internet history, and because of this connection, this evidence was not excluded.