Mar 17, 2014

Summary of R. v. Wonitowy

R. v. Wonitowy, 2010 SKQB 346 (CanLII)
The accused was charged with possession of child pornography and making it available to others. He brought an application to exclude evidence obtained during a search of his home pursuant to a search warrant. A police investigator discovered that a computer in the accused's home was downloading and allowing others to download child pornography in December 2006. A search warrant was not obtained or executed until July 2007. During the search police seized a computer that contained child pornography and about 70 computer disks with three images of child pornography on them. The accused argued that the evidence in the Information to Obtain (ITO) the search warrant was so stale-dated that it was not reasonably probable that the evidence sought by the police would still be at his residence when the search was executed.HELD: The ITO in this case was 7 months old. There was no evidence in the ITO to support an inference that child pornography was being obtained or shared at any time other than a one week period in December 2006. There was sufficient evidence upon which the justice could authorize the police to search for and seize the computer. The evidence was dated, but it was not so stale-dated that it could not ground a reasonable belief that evidence of the offence would be found on the accused's computer or in his residence at the time of the search. The size of the collection of child pornography on the accused's computer and the focused effort it took to obtain the files allows common sense to suggest that the accused was very interested or keenly interested in child pornography in a way that suggests that it is probable that he would want to keep the material for at least awhile. The authorizing justice was also entitled to consider that computers can store a great deal of digital information for later retrieval by the user. No effort had to be expended and no cost would be incurred by simply allowing the illegal material to remain on the computer. The accused's application with respect to the search and seizure of the computer was dismissed. However, the Court viewed the matter of the computer disks differently because computer disks are cheap and disposable, which cuts against the reasonableness of the belief that disks containing child pornography would be found at the accused's residence at the time of the search. There was insufficient evidence to support the decision to authorize the search and seizure of computer disks and the accused's s. 8 rights were violated. The computer disks were excluded under s. 24(2). The seriousness of the Charter-infringing conduct is lessened by the fact that a search warrant was obtained and there is no indication that the ITO was anything but accurate and fair. There was no deliberate attempt to mislead. The Court was concerned about the 7 month time lapse between discovering a possible offence and obtaining and executing a search warrant. The officer testified that he was involved in several high profile child pornography cases during this time frame and suggested that resource pressures provided an explanation for the delay. However, the Court found that the investigation was repeatedly shuffled to the end of queue because other matters were seen as more important. The computer disks were not in plain sight û they were found in the closet of the accused's bedroom which amounts to a particularly intrusive invasion of the accused's privacy. Finally, excluding the disks would not 'gut' the prosecution case because the evidence obtained from the computer has been admitted. Excluding the disks is a small price to pay to maintain the public's confidence that the police will only be permitted to search private areas where there is a proper foundation for the belief that the evidence will be found there.