Mar 17, 2014

Summary of R v Baribeau

R v Baribeau, 2012 SKQB 542 (CanLII)
The accused was charged with possessing child pornography and accessing child pornography. He applied to set aside the search warrant. The accused argued that the evidence used to support the Information to Obtain Search warrant was obtained by breaching his Charter rights and argued that the evidence obtained under the warrant should either be excluded or the offending portions of the ITO should be excised and the warrant set aside because, on the basis of the evidence that remains, it was not lawfully issued. The accused had been a principal at a company. When he retired, the company allowed him to keep his work computer for personal use. In 2009, the accused took his computer to his former company's information technology department to have it repaired. When the employee was checking the computer, he came across files in a 'recent documents' folder that suggested they might contain child pornography. The technician viewed some thumbnail images located on the computer and he believed the photos were child pornography. The technician did not know what to do. He felt that he was at risk of losing his job if he reported what he had found. He telephoned his brother, who was a member of the Saskatoon Police Service. The brother indicated that he should report the matter to the police. The technician still did not know what to do. He purchased an external hard drive and copied the accused's hard drive to it. He returned the computer to the accused. The technician later reported the matter to the police and turned the external hard drive, containing a copy of the accused's computer, over to them. The police found images that were child pornography on the copied hard drive. The police recovered 483 images that met the definition of child pornography in the unallocated space on the copied hard drive. The police swore an ITO to get a warrant to search the accused's home and to seize computers found there. The warrant was obtained based on what they had found on the copied hard drive. The accused argues that his right to be secure against unreasonable search and seizure, under s. 8 of the Charter, was breached.HELD: The computer technician was not an agent of the police. He called his brother for advice, and while he perceived that the advice was coming from a knowledgeable source, he did not perceive what his brother told him to be an instruction from the police department. He perceived that he was getting advice from his brother. The technician made his own decisions about what he would do and acted independently. The police involvement in this case began the moment they received the copied hard drive from the technician. The police are not responsible for the technician's actions because he is a private citizen. The subject matter of the police examination was not the copied hard drive, but the information itself. The accused had an interest in the information contained on the copied hard drive and it was the type of personal information identified by the Supreme Court as being personal and informative about the user, such as Internet search history, family photos and LimeWire files. The accused had an expectation of privacy in this information. When a reasonable and informed person takes their computer in for repair, the person knows that a technician is going to see some or all of the data on the computer, but the person does not expect that the data will be copied and shared with others. The person expects that only the people involved in repairing the computer will see the data. When the accused took his computer in for repair, he had a diminished reasonable expectation of privacy in the data that was on his computer. When the technician copied the data onto the hard drive, the accused's reasonable expectation of privacy remained attached to the data. The police examination of the data on the copied hard drive was a search within the meaning of s. 8 and the search contravened the accused's right to be secure against unreasonable search and seizure. The investigating officer who examined the hard drive was wrong in concluding that he should focus on the physical device rather than the information it contained, but there is no basis to say that the officer' s decision to search the copied hard drive without a warrant was in anything other than good faith. The breach of the accused's right was inadvertent and the impact on the accused's privacy interest was not significant because most of the information on the accused's computer was examined by a computer program rather than a real person. Secondly, the infringement is not significant because the police likely could have obtained a warrant to search the copied hard drive if they had thought of it. Public confidence in the administration of justice suggests that the evidence should not be excluded. The accused's application under s. 24(2) was dismissed.