Criminal Law – Possession of Child Pornography – Validity of Search Warrant – Charter of Rights, Section 8
The accused was charged with the commission of sexual assault, sexual touching in relation to a 16-year-old and possession of child pornography. The accused came to police attention via a report by the complainant. She reported that the accused was often viewing a pornographic website while in her presence. The police prepared an information to obtain a search warrant (ITO). The ITO stated that the search would provide evidence of the accused’s viewing of pornography in the presence of the complainant, bolstering the complainant’s credibility. The ITO did not reference possession of child pornography. The ITO sought only a search of the “search history on the computer”. The issued warrant authorized a search of the accused’s computer and related devices and media, as well as documents pertaining to occupancy of the home and control of computer equipment. The complainant subsequently alleged that the accused had taken photos of her in the shower. The police did not amend the ITO to include a search for photos. The police executed the search and seized, inter alia, a laptop, an iPhone and CDs. The police delivered the material to a computer forensic specialist at the RCMP and requested a complete forensic search of the computer and phone to obtain a general search of the Internet history, pictures of the complainant and messages between the complainant and the accused. The police knew that the search of pictures was not included on the search warrant. The RCMP did not review the terms of the warrant prior to completing the examination and examined the entire contents of the laptop and phone. The accused submitted that his s. 8 Charter rights had been violated by the search and applied for exclusion of evidence pursuant to s. 24(2). The application proceeded by voir dire. The evidence was apparently located on either the accused’s laptop or cell phone, but the nature of the evidence obtained was not disclosed at the voir dire. The following issues were raised: 1) What is the correct procedure to be used to challenge evidence seized pursuant to a search warrant; 2) Was the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted; 3) Did the ITO set forth reasonable and probable grounds that the items sought were evidence with respect to the commission of an offence; 4) Did the ITO use boiler plate clauses; 5) Did the ITO establish reasonable and probable grounds that the items were likely to be found in the place to be searched; and 6) What was the extent of a search of a computer or computer device.|HELD: Evidence of the accused’s search history was validly obtained. Other evidence was beyond the scope of the search warrant and obtained by violation of the accused’s s. 8 rights. The court held: 1) There is a two-step inquiry to be made when real evidence is seized during a search. The first step is an inquiry into constitutionality, and the second is reached only after a constitutional infringement has been established. Both inquiries impose an onus on the person claiming infringement. The standard of proof is the balance of probabilities. Challenges to constitutionality of warranted searches may involve either or both a facial and a sub-facial attack on the authorizing warrant. The record examined on facial review is fixed: it is the ITO, not an amplified or enlarged record; 2) In attempting to enter evidence of the complainant’s allegation that the accused took pictures of her in the shower, the Crown relied on an argument that the ends justified the means. This amplification evidence sought to allege a whole new offence and area of search. It was not admitted; 3) The point of this voir dire was not to determine admissibility of evidence outside of the search warrant context. There was no requirement that evidence sought in support of allegations made be directly connected to a complainant or the actual subject matter of a complainant; 4) The ITO did not use impermissible boiler plate clauses when read in its entirety. However, it did not set forth reasonable and probable grounds that text messages were evidence with respect to the commission of an offence; 5) The ITO provided sufficient description. It was reasonable to infer that search history meant search history of the accused with respect to the websites defined in the ITO. Further argument was required on whether text messages could be included; and 6) Police are not entitled to rummage through entire contents of a device searching for other evidence. The ITO sought only the search history.