R. v. Villaroman, 2012 ABQB 630

Court of Queen ’ s Bench of Alberta Citation: R. v. Villaroman, 2012 ABQB 630 Date: 20121016 Docket: 100584283Q1 Registry: Calgary Between: Her Majesty the Queen Respondent / Crown - and - Oswald Oliver Villaroman Applicant / Accused _______________________________________________________ Voir Dire Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction................................................................................................................ Page: 3 II. Facts............................................................................................................................ Page: 3

Cst. Michael Morcom.................................................................................................. Page: 3 Allen James LaFontaine.............................................................................................. Page: 6 III. Issues.......................................................................................................................... Page: 8 IV. Analysis...................................................................................................................... Page: 8 A.

The Accused’s Expectation of Privacy............................................................ Page: 9 B. The “Warrantless” Search and Seizure........................................................... Page: 11 C. The ITO........................................................................................................ Page: 12 1. Scope of Review............................................................................... Page: 12 2. Computer Technicians as “Informers”............................................... Page: 15 3.

Description of the Potential Evidence................................................ Page: 17 4. Information in the ITO...................................................................... Page: 21 5. Conclusion on the ITO...................................................................... Page: 26 D. The General Warrant..................................................................................... Page: 27 E. “Detention” of the Computer......................................................................... Page: 29 F.

Conclusion on Charter s. 8............................................................................ Page: 35 G. Charter s. 24(2)............................................................................................. Page: 35 1. The seriousness of the Charter-infringing state misconduct............... Page: 38 2. The impact of the breach on the Charter -protected interests of the accused Page: 39 3. Society's interest in the adjudication of the case on its merits............ Page: 39 4.

Whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.............................................. Page: 39 I. Introduction [ 1 ] The Crown has charged Oswald Oliver Villaroman (the “ accused ” ) with the following: That he, between the 16 th day of September, 2009, and the 2 nd day of December, 2009, both dates inclusive, at or near Calgary, Alberta, did transmit, make available, distribute, sell, import, export, or possess for the purpose of transmission, making available, distribution, sale or exportation, child pornography, contrary to

section 163.1(3) of the Criminal Code of Canada . That he, between the 16 th day of September, 2009, and the 2 nd day of December, 2009, both dates inclusive, at or near Calgary, Alberta, did possess child pornography, contrary to

section 163.1(4) of the Criminal Code of Canada . That he, between the 16 th day of September, 2009, and the 2 nd day of December, 2009, both dates inclusive, at or near Calgary, Alberta, did access child pornography, to wit: videos and image, contrary to

section 163.1(4.1) of the Criminal Code of Canada . [ 2 ] The accused brought an application to have this Court exclude evidence that members of the Calgary Police Service ( “ CPS ” ) obtained while executing a general warrant (the “ General Warrant ” ) to search the contents of a laptop computer that the accused

owned (the “ Computer ” ). This, the accused argues, is a breach of his rights under

section 8 of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. Charter s. 8 provides: 8. Everyone has the right to be secure against unreasonable search or seizure. II. Facts [ 3 ] The accused does not contest that the Computer belonged to him. Nor does he contest the Computer ’ s continuity. The work order that was made an exhibit in these proceedings indicates that the accused dropped off the Computer at a “ MyMacDealer ” retail outlet in Calgary, Alberta ( “ MyMac ” ) for repairs on 2 December 2009.

On 11 December 2009, while conducting the repairs, Alan Sopczak, the technician working on the Computer, saw a video that was on the Computer ’ s hard drive in the Computer ’ s “ iTunes ” folder. He observed part of the video and concluded that it was child pornography. He immediately contacted the CPS. Cst. Michael Morcom [ 4 ] Cst. Michael Morcom was dispatched to the MyMac. [ 5 ] Cst. Morcom took a statement from Mr. Sopczak, in which Mr. Sopczak advised Cst. Morcom that he saw on the Computer several files with various names. Mr.

Sopczak viewed a file on the Computer titled “ Uncle ’ s Lust for Young Blonde 13 Year-Old Niece. ” Mr. Sopczak ’ s description of the file that he viewed would fall within the definition of “ child pornography ” contained in Criminal Code s. 163.1(1)(a)(i). [ 6 ] During this time, Cst. Morcom was speaking with the Integrated Child Exploitation Unit ( “ ICE ” ) to obtain advice and direction on how he should handle this matter.

ICE is a provincially-formed unit comprised of the Royal Canadian Mounted Police and the municipal police forces that investigates matters involving electronic and non-electronic child pornography and child sexual abuse. Most of Cst. Morcom ’ s discussions were with Cpl. Kimberley Krasman of ICE. [ 7 ] After taking the statement from Mr. Sopczak, Cst. Morcom seized the Computer. The Computer, at that time, was in several pieces, so Cst. Morcom seized all the pieces and placed them in a static-free bag that Mr. Sopczak had provided to him. As well, Cst.

Morcom seized the service order that was related to the Computer. It showed the accused ’ s name and address on it and described the Computer, including the Computer ’ s serial number, “ w8652ayxw0g. ” It also showed that the service order was created on 2 December 2009. [ 8 ] Cst. Morcom then took the Computer to the ICE offices in Calgary. Cpl. Krasman advised Cst. Morcom to obtain a warrant so that ICE could conduct a forensic analysis on the Computer. [ 9 ] After dropping the Computer off at the ICE office, Cst.

Morcom completed a form which an officer prepares pursuant to Criminal Code s 489.1 ( “ Form 5.2 Report ” ). It describes the item seized, the authority under which the officer seized the item, and when the officer seized the item. In this case, the Form 5.2 Report says that the accused had been charged with “ possess/acc/dist child porn. ” Cst.

Morcom confirmed that at the time he completed the form, that information was inaccurate, as the accused had not yet been charged with any offence. [ 10 ] The reverse side of the Form 5.2 Report is the “ Order of the Justice ” which provides details on what a justice of the peace might rule with respect to the seized items. Cst. Morcom did not complete this part of the form. He also did not attend the court house once he completed the form. Thus, no justice had signed this form. Cst.

Morcom also confirmed during cross-examination that he had not reviewed, nor was he aware of, the requirements under Criminal Code s 489.1. Nor had he reviewed Criminal Code s. 490. [ 11 ] Cst. Morcom, in the first instance, thought that ICE would be dealing with this matter, but the individuals at ICE and Cst. Morcom ’ s sergeant thought that this would be a good learning experience for Cst. Morcom. Cst. Morcom started preparing an

information to obtain a general warrant ( “ ITO ” ) and the General Warrant. Because of his other duties, and his discussing the ITO and General Warrant with individuals at ICE, it took Cst. Morcom some time to complete these documents. [ 12 ] ICE suggested that Cst. Morcom obtain a general warrant, rather than any other type of warrant. Cst. Morcom followed these directions “ Because they had the expertise, I guess ” : Voir Dire Transcript, 14 May 2012, p 41, l 24. Cst.

Morcom also relied on ICE to provide him with many of the provisions contained in the ITO concerning computer-related information. [ 13 ] The following exchange took place between the Crown ’ s counsel and Cst. Morcom concerning the ITO: Q And in your warrant, at the end of the warrant -- in fact, at the end of the Information to Obtain it says: The informant says that he believes there are no other provisions in the Criminal Code of Canada or any other act of Parliament that would otherwise provide for a warrant, authorization, order permitting the procedure to be used.

You had written that in your Information to Obtain? A Yes. Q And why had you written that? A Because I believed there are no other provisions of the Criminal Code . Voir Dire Transcript, 14 May 2012, p 47, ll 19-32 [ 14 ] After he completed the ITO and the General Warrant, Cst. Morcom had ICE and a Crown ’ s counsel review them. Cst. Morcom originally took the ITO to Judge Delong to obtain the general warrant. Judge Delong would not grant the general warrant, as he thought an investigation from 26 February 2010, to 26 March 2010, was too long a period. Cst.

Morcom returned to his office and contacted Allen LaFontaine, who was the person at ICE who would be conducting the forensic analysis on the Computer ’ s data. Mr. LaFontaine told Cst. Morcom that five days would be sufficient. Cst. Morcom made that change, and obtained the General Warrant on 1 March 2010, from Judge Veldhuis, as she then was. He then sent the General Warrant to ICE by facsimile transmission, so ICE could conduct its forensic analysis. Cst. Morcom made no attempt to take the ITO back to Judge Delong. [ 15 ] Cst. Morcom returned to the ICE offices on 1 April 2010. This delay was due to his

schedule and that of Cpl. Krasman. Cpl. Krasman had Cst. Morcom view the materials recovered during ICE ’ s forensic analysis to confirm that it was child pornography. [ 16 ] The accused had contacted Cst. Morcom sometime before Judge Veldhuis issued the General Warrant to inquire as to the whereabouts of the Computer. Cst. Morcom told the accused that ICE had the Computer. [ 17 ] Cst. Morcom contacted the accused soon after he had visited with Cpl. Krasman. Cst. Morcom asked the accused to attend the police station where Cst. Morcom was working at the time (District 1). The accused met with Cst.

Morcom on 16 May 2010, when Cst. Morcom arrested the accused. The accused was cooperative. Allen James LaFontaine

[ 18 ] This Court qualified Mr. Allen James LaFontaine, without the accused ’ s objections, as an expert in the forensic analysis of data storage devices, including computers, cellular telephones and Blackberries. Despite this, the Crown ’ s counsel reviewed for this Court Mr. LaFontaine ’ s qualifications and training. Mr. LaFontaine was the lead forensic examiner with the ICE Technological Crime Group, and has been qualified as an expert in those areas many times by the Provincial Court of Alberta and the Court of Queen ’ s Bench of Alberta. [ 19 ] Mr. LaFontaine examined the Computer, starting on 1 March 2010.

He prepared a report on his findings, which was marked as an exhibit in these proceedings (the “ Forensic Report ” ). The Forensic Report bears the date 13 April 2010. Mr. LaFontaine processed the image (the Computer ’ s hard drive) and reviewed the image over a period from 1 March 2010, to the time he prepared the Forensic Report on 13 April 2010. The processing of the image, in essence, copies the hard drive from the Computer on to the hard drive of the ICE computer. That ensures the information on the Computer ’ s hard drive remains in its original form. [ 20 ] Mr.

LaFontaine did not begin to conduct his image processing until he received the General Warrant. [ 21 ] Mr. LaFontaine pointed to a mistake in the Computer ’ s serial number identified in the Forensic Report. The serial number in the Forensic Report has three additional numbers at the end. He reviewed the Forensic Report against the computer that he examined and confirmed with this Court that the additional three numbers were a typographical error, and the Forensic Report relates to the contents of the Computer. [ 22 ] Mr.

LaFontaine, after retrieving the Computer from the exhibit room, conducted the imaging that the General Warrant permitted him to complete. Along with this, he obtained the date and time from the Computer ’ s clock. The reason he obtained this information is that the Computer ’ s operating system inputs the times associated with particular files: Voir Dire Transcript, 14 May 2012, p 63, ll 1-2. He then makes an assumption that the Computer ’ s clock has been accurate, which will tell him at what date and time the computer ’ s operator downloaded particular files or engaged in certain file-related activities.

In the case of the Computer, the clock was accurate. Mr. LaFontaine confirmed, however, that the Computer ’ s clock and date could be changed through various mouse clicks. [ 23 ] Mr. LaFontaine conducted the forensic analysis on the image from the ICE computer, because “ examining a live exhibit can cause it to fail ” : Voir Dire Transcript, 14 May 2012, p 62, ll 29-30. [ 24 ] Mr.

LaFontaine noted that there was only one user account associated with the Computer, being “ oswaldvillaroman. ” When the operating system was installed on to the Computer, the Computer “ asks for the name of the user account and it ’ s typed in by the user ” : Voir Dire Transcript, 14 May 2012, p 65, ll 16-17. In this case, the “ oswaldvillaroman ” account was created on 1 July 2007. There was almost daily activity on the Computer from that time until 29 November 2009. [ 25 ] The Forensic Report indicates that Mr. LaFontaine found 35 digital movies that he would classify as child pornography.

He explained to this Court why he considered the movies to contain child pornography. As well, there was one image that he considered to be child pornography. This Court was shown the image, or photograph, and one sample of one of the digital movies for a period of seconds. This Court did not need to see any more than it did. Mr. LaFontaine explained that the content of the sample was similar to the other digital movies. This Court accepts, from its viewing of the image and the one digital movie sample, and Mr.

LaFontaine ’ s description of the other digital movies, that the 35 digital movies and the image may be child pornography. The “ creation dates ” for these digital movies were between 16 September 2009 and 23 November 2009. [ 26 ] Mr. LaFontaine examined all picture files and movie files on the Computer, as well as compressed files. He also examined Internet histories with respect to pictures. This was done, in part, to locate child pornography, but also to determine how the movies ended up on the Computer. [ 27 ] The next step in his process was to determine the source of these digital movies and images.

In other words, how did they get on to the Computer? In this case, they were obtained via a peer-to-peer file sharing program called “ Limewire. ” In a peer-to-peer program, users who have downloaded the Limewire software can share their files on the Internet. [ 28 ] In addition to downloading these digital movies and images on the Computer, the user, in Mr. LaFontaine ’ s opinion, viewed

the digital movies and images. Mr. LaFontaine did this through tracking these from a “ P-List ” which shows recently-opened files. [ 29 ] As well, the user of the Computer was “ sharing ” the digital movies with others through a folder titled “ Music. ” This was a setting that the user created. The files from the “ Music ” folder would be potentially available to other persons the moment the user turns on the Computer. [ 30 ] Mr. LaFontaine searched the Computer in its entirety and not just specific folders. He did so pursuant to the General Warrant.

The General Warrant provided the following “ procedure ” : Using established procedures, and software written specifically for the purpose of extracting information and data from computer systems and storage media, a police officer, or person designated by a police officer, trained in computer forensic examinations, will conduct a forensic acquisition on the MacBook Pro serial number W8652AYXW0G and make an exact duplicate (image) of all the data and information stored on the MacBook Pro serial number W8652AYXW0G.

The acquisition methods employed will ensure that no changes will occur to the data. [ 31 ] The accused argues that this does not permit Mr. LaFontaine to search the image; only to make, or acquire, the image. Mr. LaFontaine felt that the General Warrant allowed him to search the image that he created through this procedure for evidence associated with the charges set forth in the General Warrant. This Court will discuss this later in these reasons. [ 32 ] Mr. LaFontaine completed the procedure outlined in the General Warrant between 1 March 2010, and 5 March 2010.

His “ search ” of the image was done after that time, but before 13 April 2010, which is the date of the Forensic Report. III. Issues [ 33 ] The accused argues that the CPS breached his Charter s. 8 rights by: A. conducting a warrantless and unreasonable search of the Computer; B. failing to comply with Criminal Code s. 487.01 (information for general warrant); and C. failing to comply with Criminal Code ss 489.1 and 490 (reporting and detention of the Computer). As well, the accused argues that the serial number of the laptop computer to which Mr.

LaFontaine referred in the Forensic Report does not match the serial number of the Computer. IV. Analysis [ 34 ] At the outset, this Court accepts Mr. LaFontaine ’ s evidence that the differing serial numbers resulted from a typographical error.

Thus, it finds that the Forensic Report relates to the Computer. [ 35 ] This Court has attached to these reasons as Appendix A copies of the Criminal Code sections, to which it intends to refer. [ 36 ] This Court proposes to deal with the issues from a temporal perspective, in the sense that it will review each of the issues in the order in which they would have occurred on a time continuum. Thus, it will examine the issues concerning:

A. Cst. Morcom’s seizure of the Computer from MyMac’s possession; B. the ITO; C. the General Warrant and the seizure and search pursuant to the General Warrant; and D. the failure to file the Form 5.2 Report and, as a result, the lack of judicial oversight of the Computer’s possession. A. The Accused’s Expectation of Privacy [37] As a preliminary matter, this Court must discuss the accused’s privacy rights in the Computer. After all, this is the essence ofCharter s. 8. As the Supreme Court of Canada said in Canada (Combines Investigation Acts, Director of Investigation and Research)v.

Southam Inc., (SCC), [1984] 2 SCR 145,1984 CarswellAlta 121 at para 25 [Southam]: This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, orpositively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in aparticular situation the public's interest in being left alone by government must give way to the government's interest in intruding on theindividual's privacy in order to advance its goals, notably those of law enforcement. [38] In R. v.

Morelli, 2010 SCC 8 at para 2, [2010] 1 SCR 253 [Morelli], Fish J. said, “It is difficult to imagine a search moreintrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.” He then provides a list of items anyperson might have on the hard drive of their computer, such as emails, medical records, calendars and the “electronic roadmap” of aperson’s “cybernetic peregrinations” (at para 3). It would certainly be difficult to quibble with Fish J’s strong views on this.

Andcertainly, if investigators were on a fishing expedition in an attempt to hunt down possessors or those who access child pornography, thistype of approach has a ring of modern-day McCarthyism. However, if the investigators meet the requirements of the Criminal Code andCharter s. 8, people’s privacy rights could yield to broader interests. [39] Does a person surrender, or, at least, acknowledge that their privacy rights might be limited when they take their computer to a repair facility? In R. v.

Winchester, 2010 ONSC 652 at para 36, 73 CR (6th) 371 [Winchester], Valin J. said the following: ... [W]hile the applicant had a subjective expectation of privacy in the contents of the computer, the objective reasonableness of thatexpectation was significantly reduced in the circumstances under which he brought the computer to the store for repair. In other words,while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at thestore, I do find that his expectation was significantly reduced. [40] Similarly, in R. v.

Graham, 2010 ONSC 119 at para 25, 214 CRR 369, Desotti J. held that when a person leaves theircomputer in the hands of a computer repairperson, “this intrusion on the privacy of the accused was minimal as the computer was not atthe residence of the accused and his residential security was never in issue.” In Morelli the computer technician was in the accused’sresidence, when he noted the “bookmarks” on the accused’s computer. [41] In R. v.

Cole, 2011 ONCA 218, 269 CCC (3d) 402, leave to appeal granted [2011] SCCA No 278 [Cole], Karakatsanis JA, asshe then was, discussed the role of a computer technician primarily in the context of the issue of an individual’s right to privacy. In thatcase, the accused was a teacher who taught communication technology. The school provided the accused with a laptop computer for thispurpose. In his teaching role, he could remotely access the students’ computers that were connected to the school network.

He accessed astudent’s email account and found nude photographs of another student, which he copied onto his hard drive. A computer technician whowas employed by the school to maintain the integrity and stability of the school’s network found these pictures on the hard drive of theaccused’s laptop. The computer technician informed the school’s principal, who advised the superintendents of the school board. Thesuperintendents instructed the principal to seize the computer. The police then attended the school and seized the computer without awarrant.

[ 42 ] Karakatsanis JA found that neither the computer technician nor the school ’ s principal breached the teacher ’ s “ modified ” privacy rights. However, she did find that the warrantless police search and seizure did. She found that “ [o]nce the police had the laptop in their possession, there was no urgency and no exigent circumstances and a warrant could easily have been obtained ” (at para 67). She went on to say at para 76: ...

Police are not relieved from the stringent standard of obtaining judicial authorization to conduct a search or seizure based on reasonable and probable grounds, simply because they are provided with evidence in circumstances where the accused's Charter rights were either not engaged or were not infringed in the initial gathering of that evidence ... [ 43 ] In the case with which this Court is dealing, the police did obtain that judicial authorization. [ 44 ] The accused argues that he did not give up his high level of privacy in the Computer by leaving it with the MyMac. Mr.

Sopczak ’ s role was very limited, in the sense that the accused had left the Computer with the MyMac to undertake limited maintenance. Mr. Sopczak was not authorized to scour the contents of the Computer. Unlike Graham , this Court does not find that the accused ’ s privacy rights were “ minimal. ” A person maintains a certain level of privacy in their computer, even when the Computer is in the hands of a repair facility.

Even to say that the expectation of privacy has been significantly reduced, as the court in Winchester found, might not give the expectation of privacy that Fish J. found in Morelli the high standard it deserves. With respect, a better approach would be to refer to the level of privacy as being “ modified, ” as Karakatsanis JA found in Cole . The level of modification would then be determined by the court examining the circumstances of the case before it. [ 45 ] In Morelli , the accused had a high level of privacy because the computer technician entered the accused ’ s home to install high-speed service.

The technician was not in the accused ’ s home to “ fix ” the computer itself, and the accused ’ s privacy rights in his computer were heightened when the computer technician entered his home, a location that also possesses a very high level of privacy. When a person leaves their computer with a technician in an off-site repair facility, the person ’ s privacy rights are lower than they would be in the Morelli situation. [ 46 ] The accused argues that when one looks at the circumstances of this case, Mr. Sopczak had no authority to examine the contents of the Computer.

This Court finds that it would be unreasonable to find that Mr. Sopczak had authority to do nothing with the Computer, when the accused left it with him to perform maintenance on it. Cst. Morcom ’ s evidence was that Mr. Sopczak told him that he saw what he thought was child pornography “ while doing the maintenance ” : Voir Dire Transcript, 14 May 2012, p 12, ll 16-17, 33-36 [emphasis added]. There was nothing in Cst. Morcom ’ s evidence which indicated that Mr. Sopczak was doing anything but that which the accused retained him to do.

Interestingly, it appears that in Winchester the computer technician was performing activities analogous to those of Mr. Sopczak. Although this Court does not have technical evidence as to what exactly Mr. Sopczak was doing so it could compare the respective activities, this Court need not make that comparison. Suffice it to say that there is no evidence before this Court that Mr. Sopczak was rummaging through the Computer ’ s hard drive.

He was simply doing what the accused had retained him to do. [ 47 ] Thus, while this Court finds that the accused had a high expectation of privacy in the Computer, his privacy was modified in this case insofar as he had left the Computer in a facility outside his home for maintenance and repairs. Mr. Sopczak did not breach the accused ’ s modified expectation of privacy by performing that which the accused had retained him to do. B. The “ Warrantless ” Search and Seizure [ 48 ] Cst.

Morcom did not obtain any prior authorization to seize the Computer from the MyMac before he inserted its “ parts ” into the bag and left the MyMac. Thus, this was a warrantless search and seizure, which is prima facie unreasonable. It is the Crown ’ s burden to justify this presumption of unreasonableness. [ 49 ] The Supreme Court of Canada has held many times that the Crown can rebut the presumption of unreasonableness by showing that there were exigent circumstances that required the police to seize a person ’ s property. See e.g. R. v. Kang-Brown , 2008 SCC 18 at para 46 , [2008] 1 SCR 456 .

[50] Cst. Morcom did not see the digital movie that Mr. Sopczak described to him. Thus, the issue is whether Cst. Morcom wasable to rely on information that Mr. Sopczak provided to obtain “reasonable and probable” grounds to seize the Computer without awarrant. The Supreme Court of Canada has held that the police officer’s belief and the reasonable grounds for that belief are admissible,even though the police officer receives that information from a third party. See e.g. R. v. Collins (SCC), [1987] 1 SCR265, (sub nom Collins v. R.) 33 CCC (3d) 1. [51] This Court will discuss the issue of Cst.

Morcom’s belief and the reasonable grounds for that belief, when it discusses thecontent of the ITO. At this stage, however, it must consider whether there were exigent or urgent circumstances that required Cst.Morcom to undertake the warrantless seizure of the Computer. [52] Had Cst. Morcom left the Computer in the hands of MyMac, two results could have flowed. First, had the accused returned tothe MyMac and demanded the Computer, MyMac would have no choice but to return the Computer to the accused. The evidence couldthen be lost.

Thus, exigent circumstances existed in this case, unlike the situation in Cole where the school environment and evidencewere secure. In R. v.

Grant, (SCC), [1993] 3 SCR 223 at 250, 84 CCC (3d) 173, the court said, “Exigent circumstanceswill generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if thesearch or seizure is delayed.” See also Winchester at para 51. [53] The second, although more remote effect, would be that MyMac could be considered to have committed the offence ofpossession of child pornography under Criminal Code s. 163.1(4) or distributing child pornography under Criminal Code s. 163.1(3) onits return of the Computer to the accused: R. v.

Graham at para 23. [54] This Court finds that the Crown has met its burden of rebutting the presumption of unreasonableness of Cst. Morcom’swarrantless seizure of the Computer from the MyMac. C. The ITO 1. Scope of Review [55] What is the scope of this Court’s review of the ITO? The test, as repeated in cases over the past quarter century, is: ... whether there is evidence upon which the justice of the peace could determine that a search warrant should be issued.

It is not the taskof the reviewing judge to weigh the evidence or to determine whether the justice should have been satisfied by the sworn information ... R. v. Church of Scientology of Toronto (No 6); R. v. Walsh, (ON CA), 1987 CarswellOnt 1401 at para 95, 18 OAC321, 31 CCC (3d) 449 (Ont CA), leave to appeal refused [1987] 1 SCR vii [italics in original] [Scientology]. [56] Subsequent cases have provided reviewing courts with guidance on how they should apply this test to the facts before them.For example, in R. v. Pires; R. v.

Lising, 2005 SCC 66 at para 30, [2005] 3 SCR 343 [Lising] [emphasis added], the court said that thereviewing court “only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevantstatutory preconditions existed.” See also R. v. Carrier (1996), 1996 ABCA 145 at para 50, 181 AR 284 [Carrier]. [57] The hearing is not a de novo hearing, but is one on the record, “as amplified on the review”: R. v. Garofoli, (SCC), [1990] 2 SCR 1421 at 1452, 60 CCC (3d) 161 [Garofoli].

In Garofoli, the court went on to say at 1452: ... [T]he existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite toreview, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [58] In Lising at para 30, the Supreme Court of Canada expanded on this notion by saying:

... Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this willnot necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impacton the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretapevidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. It should be noted that Lising and Garofoli involved wiretap evidence.

However, Canadian courts have applied the general principlesgarnered from both to other cases involving search warrants. See e.g. a survey and list of cases in R. v. Ling (2009), BCCA 70, 2009BCCA 70 , 241 CCC (3d) 409 at paras 32-33, leave to appeal refused [2009] SCCA No 165. As well, the Supreme Court ofCanada applied this principle in Morelli, at paras 44, 58-60. [59] In most cases, the investigating officers obtain wiretaps, search warrants and general warrants ex parte. Like any ex parteapplication, the applicant must make full and frank disclosure to the issuing court: United States of America v.

Friedland, [1996] OJ No4399 at para 26 (QL) (Ct J (Gen Div)). See also R. v. Araujo, 2000 SCC 65 at para 46, [2000] 2 SCR 992 [Araujo]; Hover v.Metropolitan Life Insurance Co (1999), 1999 ABCA 123 at para 23, 237 AR 30 (CA). By failing so to do, the applicant runs the riskthat a reviewing court might set aside the wiretap or warrant, or exclude the evidence garnered therefrom. [60] By allowing the person to “amplify” the terms contained in the ITO, courts are not permitting that person to provide thereviewing court with everything they should have provided to the justice in the first instance.

The function of amplification is narrowerthan that.

Fish J. in Morelli at para 41 said: The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. ... [T]hereviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [Emphasis added]. [61] In Araujo at para 59, the court provides us with the limits to which trial courts may use amplification evidence, when it said: ...

The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a priorauthorization is fundamental to the protection of everyone's privacy interests ... amplification cannot go so far as to remove therequirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

On the otherhand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable andprobable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the draftingof their affidavit material.

Courts must recognize (along with investigative necessity) the two principles of prior authorization andprobable grounds, the verification of which may require a close examination of the information available to the police at the time of theapplication for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in anaffidavit on a wiretap application attempts to reconcile these principles.

Courts should take a similar approach to amplification.[Emphasis added]. [62] Interestingly, Morelli at para 60 might have opened the door to allow the parties to adduce more substantive evidence duringa voir dire, when it said: ... [W]here, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced at the voirdire should be used to fill the gaps in the original ITO.

However, in the light of its earlier statement, a reviewing court must be very cautious when determining what type of gaps it will allowthe parties to fill when it hears amplification evidence. [63] The role of the justice who is asked to issue a warrant is to evaluate whether the evidence before the court establishesreasonable and probable grounds that something can be found in the place the investigators intend to search, and that the recoveredevidence will indicate or imply the commission of an offence under the Criminal Code: Scientology at para 29. The justice must weighthe evidence before them.

That evidence will be contained in the ITO. If there is no evidence, or insufficient evidence, a warrant will not

issue: Scientology ibid. The reviewing judge must not weigh, or re-weigh, the evidence that was before the justice in an attempt todetermine whether that justice should have issued the warrant, or that judge would have issued the warrant. [64] In this case, this Court must examine the ITO to determine whether Judge Veldhuis, as she then was, had any basis orevidence on which she could be satisfied that Cst. Morcom had satisfied the statutory preconditions for the issuance of the GeneralWarrant and thereby issue the General Warrant.

This Court must not weigh the evidence that was before her to determine whether itwould have issued the General Warrant on the basis of that evidence. If this Court finds that Cst. Morcom presented fraudulent ormisleading evidence, it must excise that evidence from the ITO to determine whether, absent that evidence, Judge Veldhuis still wouldhave issued the General Warrant. As well, it must consider whether Cst. Morcom failed to disclose material evidence.

Even in that case,however, this Court must look at all the circumstances to determine whether there remained a sufficient basis on which Judge Veldhuiscould have issued the General Warrant. In so doing, this Court may rely on evidence to amplify what is already contained in the ITO. 2. Computer Technicians as “Informers” [65] Canadian law permits the police to rely on the evidence of third parties to arrive at the reasonable and probable grounds forseeking a warrant. In R. v.

Debot (1986), (ON CA), 30 CCC (3d) 207 at para 17, 17 OAC 141 (Ont CA), aff’d (SCC), [1989] 2 SCR 1140, 52 CCC (3d) 193, Martin JA said: Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide thenecessary "reasonable ground to believe" to justify the granting of a search warrant ... On an application for a search warrant, theinformant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself thatthere are reasonable grounds for believing what is alleged ...

Consequently, a mere statement by the informant that he or she was told bya reliable informer that a certain person is carrying on a criminal activity ... would be an insufficient basis for the granting of the warrant.The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfyhimself or herself that there are reasonable grounds for believing what is alleged.

I am of the view that such a mere conclusory statementmade by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making anarrest without warrant.

Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify awarrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure that it is based onmore than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are anyindicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story bypolice surveillance.

I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality ofthe circumstances meets the standard of the necessary reasonable grounds for belief. [Emphasis added.] [66] Garofoli at pp 1465-67 confirmed that the affiant may rely on a third party informant. See also R. v. Durling, 2006 NSCA124 at para 19, 214 CCC (3d) 49.

This information would provide the justice with “credibly-based probability”, and prevent the issuanceof search warrants in merely suspicious circumstances, so that the “state’s interest in detecting and preventing crime begins to prevailover the individual’s interest in being left alone”: Southam at para 43. [67] Can a computer technician provide the affiant with sufficient information to give the affiant reasonable and probable groundsthat a crime had been, or was about to be, committed such that the affiant can satisfy the justice that there was a credibly-basedprobability as opposed to a mere suspicion?

In other words, is a computer technician a reliable informer? The computer technician mustprovide the affiant with the reasons why the computer technician believes that certain contents of the computer is child pornography,such that the affiant can be satisfied that there is a credibly-based probability that the computer technician viewed child pornography. A“mere statement” that the computer technician viewed child pornography would be insufficient. Did the computer technician provide theaffiant with a description of what he viewed? Has he provided information to the police in the past?

Was the information he provided inthe past sufficient to ground a charge? A past history of successful prosecutions would be helpful. However, simply because thecomputer technician has not had a “successful run” would not be the sine qua non of his reliability, as the affiant, the justice and thereviewing judge must look at all the circumstances of the case. In Morelli, Fish J. did not find the information to obtain a warrant in thatcase to be deficient on the basis that the “informant” was a computer technician.

The deficiencies arose from what the computertechnician saw, and how the affiant reported that information. [68] In Carrier, the court discusses the reliability of persons on whom the affiant relies. In that case, a “source” advised theaffiant that he had seen several large potted plants in a house that he believed were marijuana. The affiant had never dealt with thissource before. Côté JA for the majority said at para 59: First, were the plants seen in the house marihuana, or some harmless house plants? The Information begins by saying that the constable

has reasonable and probable grounds to believe there is a narcotic, marihuana, ... in the dwelling house ... He says that his grounds for sobelieving are that a human source entered that house and there saw several potted plants, ... I would draw the inference that what thesource saw appeared to be marihuana plants, not harmless house plants. But my inference does not matter. What matters is that theProvincial Court judge obviously drew such an inference, and it was reasonable. [69] There is no doubt in this case that Mr. Sopczak was not an agent of the state, based on the factors outlined in R. v.

M. (MR) (SCC), [1998] 3 SCR 393, 129 CCC (3d) 361. See also Winchester at paras 37-44. A computer technician has nointerest in the case and is just a “neutral third party.” [70] Mr. Sopczak advised Cst. Morcom that he had viewed part of one digital movie located on the computer titled “Uncle’s Lustfor Young Blond 13 YO Niece.” Mr. Sopczak described the content of the digital movie as displaying a young girl being held down byan adult male. The digital movie showed the adult male covering the young girl’s mouth with his hand and showed the young girl beingvaginally penetrated by the male’s erect penis. Mr.

Sopczak believed the girl to be approximately 13 years of age, because of herphysical attributes. There is no useful purpose in describing those attributes in the reasons for this decision. Mr. Sopczak told Cst.Morcom that this digital movie was located in the Computer’s “iTunes” folder. Along with this digital movie, Mr. Sopczak also saw inthe “iTunes” folder files with names such as “party preteen, caught 14 yr old, 9 yo, 10 yo 11 yo, new personal pics of 12 yo daughter,and pedofilia.” [71] Based on this information, Cst.

Morcom deposed in the ITO that he believed that “the information acquired from thiscomputer will afford evidence that [the accused] possessed and accessed child pornography ...”: ITO para 34. [72] Mr Sopczak did not merely provide Cst. Morcom with a conclusory statement that he observed child pornography on theComputer. He explained to Cst. Morcom the reason why he had the Computer in his possession, and what he was doing with it. Heshowed Cst. Morcom the work order. He then provided Cst. Morcom with a detailed description of what he had observed in the digitalmovie and provided Cst.

Morcom with the titles of other files located in the same folder as the digital movie he had observed. There is acredibly-based probability that the content of the digital movie that Mr. Sopczak viewed and the description that he provided to Cst.Morcom was child pornography. Mr. Sopczak advised Cst. Morcom that he had reported previous incidences of child pornography to theCPS in the past, although there is no evidence before this Court that such reports grounded convictions. [73] Judge Veldhuis, it appears, had no reason to doubt the reliability of the information that Mr. Sopczak provided to Cst.Morcom.

She was entitled to make that finding and this Court cannot question her finding without evidence that would show her findingto be misguided. Furthermore, she drew the reasonable inference that what Mr. Sopczak viewed was child pornography and this is “whatmatters.” 3. Description of the Potential Evidence [74] In R. v. Khan, (ON SC), 2005 CarswellOnt 8295 at para 40, 133 CRR (2d) 29 (Ont Sup Ct J), Minden J.provides the following

summary of the principles outlined in Scientology with respect to the particularity the ITO affiant must provide tothe justice concerning the evidence they seek to garner from the search: 1. The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche torummage through the premises of the target. A "good deal of specificity" with regard to the things to be searched for and seized isrequired. 2. The things must be described in such a way as to guide the officer or officers carrying out the search and assist them inidentifying the object. 3.

In an appropriate case, the warrant may authorize the seizure of classes of things, including documents. However, such classesshould normally be limited both with respect to time and with respect to their relationship to the crime or crimes in connection with whichthey are said to afford evidence. ... In other words, a court may consider whether or not the description of the items to be searched forcontains a direct reference to the offence under investigation, thereby setting out a clear nexus for the officers executing the warrantbetween the items to be searched for and their relationship to the crime alleged.

In the alternative, the description may incorporate theoffence by reference to the part of the warrant that describes the offence.

4. In determining the degree of specificity required, regard must be had to the nature of the offence alleged in the information. Thiswill include ... the length of the time frame of the alleged offences. ... 5. ... Where ... by the very nature of the things to be searched for it is not possible to describe them with precision or considerableparticularity, ... it is inevitable that the executing officers will have to exercise some discretion in determining whether the things foundfall within the description of the things or classes of things described in the warrant. ... 6.

The information and resulting warrant should be viewed as a whole and should not fall as a result of some relatively minordefects that may be found on microscopic examination. Each case must be decided on its own facts. 7. In some cases, the nature of the seizure may be examined in an assessment of the appropriate amount of particularization in awarrant. [75] How specific must the description be? In R. v.

Jonnason (1993), (MB KB), 89 Man R (2d) 72 at para10, 21 WCB (2d) 32 (QB) [Jonnason], Beard J, as she then was, said that the information to obtain a warrant must contain a “descriptionof the contents of the picture files upon which the magistrate could make a decision ... as to whether ... the contents of the picture filescould be obscene.” In so doing, she was following the earlier case of Reference Re Times Square Book Store and R (1985), (ON CA), 21 CCC (3d) 503, 10 OAC 105 (Ont.

CA) [Times Square], in which Cory JA, as he then was, for the court,evaluated whether a reviewing judge properly quashed a warrant on the basis of insufficient material contained in the information for thejustice to be satisfied that there were reasonable grounds to justify the issuance of the warrant. The investigation involved the offence ofpossession of obscene publications for the purpose of sale. The warrant permitted the search and seizure of a particular magazine byname, “and other similar obscene magazines.” The affiant described the particular magazine’s content.

The reviewing judge upheld thesearch of that particular magazine, but quashed the balance of the warrant. [76] Although the Ontario Court of Appeal dismissed the appeal, it did not do so because of a lack of specificity in the descriptionof the excluded publications. It did so on the basis of the warrant itself.

With respect to the information to obtain the warrant, the courtsaid that if the affiant were to provide the magazine’s title and a description of the contents of the magazine, which would fit within thedefinition of “obscene” and a further description of the other magazines by their location in the store and that their covers depictedsimilar scenes of sexual activity combined with acts of cruelty, that would suffice for the issuance of a warrant (at para 32).

The warrantitself must also be “reasonably specific” (at para 37). [77] How much specificity can an affiant provide to the justice of images on a computer, when the affiant cannot look at theimages without a warrant? If the affiant were to look at the images before or during their preparation of the information to obtain awarrant, that would be a warrantless search: see e.g. Cole at para 76. The answer to this question finds itself in the information on whichthe affiant can rely in preparing the information to obtain a warrant.

Certainly, the affiant can rely on first-hand knowledge or personalobservation, or, as this Court has said earlier, information that a reliable informer provides to the affiant. [78] In Times Square Cory JA had no difficulty admitting a magazine that the affiant had seen, in which the affiant deposedcontained material that he considered “obscene.” In that case, the magazine was located in a book store that was open to the public.

In thecase of a computer, unless the computer is located in a public place such as a public library or an internet café, the affiant will have nochance to look at the computer’s contents, unless the computer’s owner invites the affiant to look at the computer. [79] In all cases, the description of the thing for which the investigating officer is looking must not be so vague as to allow thejustice to issue a warrant that would allow the investigating officer carte blanche to look at everything the target individual might haveput on the computer. However, the justice will allow some latitude.

As Zuber J. said in Lubell v. R.., (ON SC), 1973CarswellOnt 1068 at para 4, 11 CCC (2d) 188 (H Ct J): The second ground upon which it is moved to quash both search warrants is that the materials sought to be found at the premises are toovaguely described. I think one has to remember that at this stage the authorities are still at an investigative stage in their procedure and byvirtue of that fact are likely not able to name the things for which they are looking with precision.

A search warrant is not intended to bea carte blanche, but at the same time the applicants must be afforded a reasonable latitude in describing the things that they havereasonable ground to believe they might find. ...

See also R. v. Print Three Inc, (ON CA), 1985 CarswellOnt 914, 20 DLR (4th) 586 (CA). [80] The accused argues that the description of the things for which the forensic analyst must be looking on the Computer isvague and over broad, such that it would give the forensic analyst carte blanche to rummage through the Computer. Although thegeneral principles outlined in the

summary of the “Scientology principles” are relevant to any situation, some of them should be limitedto facts before the court in that case. In fact, Minden J. identified this caution when he referred to “in an appropriate case” as part of item3.

Things like classes of items and time frame might be relevant in a commercial fraud case, but it would be difficult to “classify” itemsin a child pornography case; the items are either child pornography or they are not. [81] In this case, it is the alleged offences themselves that limit the search, as the search is directed to evidence of possession of,and/or access to, child pornography. In R. v. Jones, 2011 ONCA 632, 278 CCC (3d) 157 [Jones], the police were investigating analleged Internet fraud scheme. The warrant authorized a search of the accused’s computer for evidence of that scheme.

During the courseof their investigation, the police found what they thought was child pornography. After consulting the Crown’s counsel, they continuedtheir search for child pornography, without obtaining a further warrant. [82] The court held that the search of the contents of the accused’s computer was a breach of the accused’s Charter s. 8 rights.The description of the items for which the police were initially searching was not overly broad. They were looking for evidence of thealleged fraud. The accused in the case before this Court argues that the ITO should have limited Mr.

LaFontaine’s search to the iTunesfolder on the Computer. In Jones at para 32, the court held that the fact that the warrant contained no parameters on the types of filesthat the police could access or on the relevant time frame within which the police were entitled to examine the files was not fatal (at para32).

However, what was fatal in Jones was that the police did not seek a second warrant to continue with their search after theydiscovered the apparent child pornography. [83] Although the court held that the police cannot indiscriminately roam around in a person’s computer without furtherauthorization (at para 49), it held at para 44, that: To the extent they are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the policeare entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they arelikely to contain evidence of the type they are seeking ... [84] In R. v.

Rafferty, 2012 ONSC 703 [Rafferty], Heeney J. reviewed Jones and said at para 91: In effect, the court held that the broad, unrestricted authorization to search any computer system was qualified by the other terms of thewarrant, which served to limit the types of documents that could be searched for. The warrant was held not to be overbroad preciselybecause of those limitations. [85] In this case, the limitation was a search for child pornography.

The description of the items that were the target of the searchwas intended to guide the forensic analysts in their search, assisted them in identifying the object, and provided a direct reference or clearnexus to the offences under investigation. [86] Unlike Times Square where the investigating officer viewed the alleged obscene material in a store, Cst. Morcom had notviewed, nor could he view, the alleged child pornography. He relied on the description that Mr. Sopczak provided to him.

Thus, he couldnot provide a “description of the contents of the picture files upon which the magistrate could make a decision ... as to whether ... thecontents of the picture files could be obscene”: Jonnason at para 10. Thus, there was no basis at this early stage of the investigation toprovide a comprehensive and detailed description of the allegedly prohibited images or digital movies on the Computer, nor theirspecific storage location. [87] As a result, this Court does not question Judge Veldhuis’s acceptance of the description of the items to be searched on theComputer.

In the view of the alleged offences, and looking at the ITO as a whole, the description of the items to be searched is not

overly broad or vague. The alleged offences ground the search. In this case, that is all the specificity that Cst. Morcom was required toplace in the ITO. 4. Information in the ITO [88] Because the ITO is the foundation on which the justice issues a warrant, and because, in most cases, the affiant is making theapplication for the warrant on an ex parte basis, the affiant must give full and frank disclosure of all relevant facts that will support thejustice’s issuance of the warrant.

As stated earlier, the information to obtain a warrant must be looked at as a whole, and should not besubject to “microscopic examination.” As well, there must be a nexus between the alleged offence and the targets the affiant wants tosearch. [89] Most importantly, however, the warrant might be quashed, or the admissibility of the evidence that forms the fruits of thesearch might be questioned, if, in the information to obtain a warrant, the affiant perjures themself, recklessly disregards the truth, isgrossly negligent, misstates the facts or omits materials facts from the information to obtain a warrant: Scientology at paras 202-03.

TheCrown bears the onus to show that the information to obtain a warrant does not contain, or omit, such information. [90] The court in Scientology at para 207 discussed “reckless disregard” and said: ... [F]or the informant's misstatements and omissions to constitute a reckless disregard for the truth, there must be a flagrant lack ofconcern for the truth or accuracy of statements made which approaches fraudulent behaviour. The lack of concern must be of anunconscionable nature which approaches but yet is not deliberate misstatement or omission.

It does not include mere error of judgment orordinary negligence or carelessness. The informant's obligation is to make full, fair and frank disclosure of his or her knowledge of thematerial facts. ... [Emphasis added]. [91] The court in Carrier at para 55 discusses data contained in the information to obtain a warrant that is “misleading andincorrect.” It said: ... If the evidence were true, a search warrant might have been proper; but the evidence was not true, or was a dangerous half truth.

In thegreat majority of cases, such untruthfulness is the fault of the police who sought and got the search warrant. ... [92] The reviewing court will also quash the warrant, or it might exclude the impugned evidence when the information to obtain awarrant was insufficient, or where the investigating officer recovers evidence as a result of a questionable search. The ends do not justifythe means.

As Côté JA said in Carrier at para 55, “... we do not want the police to bootstrap themselves with a lucky guess as to whatthey will find on a search. ...” [93] The remedy, in such cases, would be for the reviewing judge to excise those statements from the information to obtain awarrant, and then determine whether the statements that remain would have been a sufficient basis on which a justice could issue awarrant: Araujo at para 58.

If not, the search will be a warrantless search. [94] As well, the affiant must make a positive assertion of their belief of the facts contained in the information to obtain a warrant,whether the affiant has first-hand knowledge of that information, or they obtained that information from a informant (including acomputer technician): R. v. Christianson, (SK KB), 1986 CarswellSask 414 at paras 13-14, 47 Sask R 143, (sub nomChristianson v. R.) 26 CCC (3d) 391 (QB). [95] There is also a practical aspect when the justice or the reviewing court examines the amplitude of the information to obtain awarrant.

Côté JA said in Carrier at para 71, “One cannot expect a police constable in a small town to have the drafting skills of aChancery pleader or a solicitor who draws bond indentures.” See also Araujo at para 46. The justice or the reviewing court must be aliveto the fact that the investigating officer might be in the preliminary stage of the investigation. As well, almost every information toobtain a warrant, in hindsight, could have included additional information: R. v. Darby, 2012 ABCA 27 at para 19, 519 AR 366, leave toappeal requested [2012] SCCA No 262 [Darby].

Thus, the reviewing court must look at whether the affiant was acting in good faithwhen they prepared the information to obtain a warrant, and whether they provided full and frank disclosure of the information they had

in their possession at the time they prepared the information to obtain a warrant: Darby at paras 18-19 . [ 96 ] The accused argues that the ITO was misleading and did not offer the justice an objective picture of the Crown ’ s case. In this regard, the accused is only referring to the “ accessing ” charge and not the “ possessing ” charge. This is a correct approach. Again, from its viewing of the image, or photograph, and the one digital movie sample, along with Mr.

LaFontaine ’ s description of the other digital movies, the Computer contained what appeared to be “ child pornography, ” as that term is defined in Criminal Code s. 163.1(1). [ 97 ] The accused argues that the ITO contains no evidence that the accused accessed the child pornography that Mr. Sopczak found on the Computer. He further argues that Criminal Code ss 163.1(4.1) and 163.1(4.2) require that the accused have subjective intent to view the child pornography. Even if one were to concede that point, the ITO need not prove that the accused committed a particular criminal offence.

That is the purpose of the trial on the charges. The stage at which Cst. Morcom was seeking the General Warrant was the investigatory stage, and proof beyond a reasonable doubt of the commission of a particular crime is not necessary at that stage. [ 98 ] Furthermore, Morelli at para 64 , finds that the presence of certain Internet content hyperlinks on a computer supports a reasonable inference that an accused person browsed a website that contains child pornography.

A fortiori , if the computer ’ s hard drive contains child pornography (instead of just hyperlinks to child pornography), the justice can draw the reasonable inference that the computer user accessed the child pornography. Judge Veldhuis may draw reasonable inferences when deciding whether she would issue the General Warrant. In particular, she may infer that the accused in this case accessed the child pornography that Mr. Sopczak described to Cst. Morcom.

This Court may not question those inferences: Carrier at para 59 . [ 99 ] The accused argues that several of the paragraphs (ITO paras 20-22, 24, 26-28) are irrelevant, unsourced and boilerplate information (the “ Technical Information ” ). This Court finds otherwise. The Technical Information is a background explanation of how computers operate in relation to the worldwide web, and how a computer user can store, delete and “ hide ” data that they collect through the Internet. Cst. Morcom gave this information to Judge Veldhuis so that she could understand the offences that Cst.

Morcom was investigating, and how the investigation would be undertaken. Cst. Morcom did not need to know, at that stage, how the data ended up on the Computer; that was the purpose of the General Warrant. [ 100 ] The accused argues that some of the Technical Information is “ unsubstantiated expert opinion. ” Had Cst. Morcom prepared the ITO without any assistance from others, there might be strength to this argument. However, he sought the assistance from Cpl. Krasman: ITO para 7(c). Cpl. Krasman reviewed the Technical Information, along with other provisions contained the ITO. In ITO para 32, Cst.

Morcom provided Judge Veldhuis with Cpl. Krasman ’ s experience, training and expertise, which included: • using software applications designed to retrieve data that has been cached or stored on computer hardware; • her performance of numerous forensic examinations on computers in which she has located various types of data, including photographs and text conversations; and • recovery of deleted data from the computer ’ s hard drive. As well, Cst Morcom had the Crown ’ s counsel review the ITO before he presented it to Judge Veldhuis. [ 101 ] The accused argues that Cpl.

Krasman ’ s expertise does not extend to the Internet or the iTunes computer programme. It is true that her expertise, as listed in ITO para 32, does not list all types of software on which she has conducted forensic examinations. Judge Veldhuis could infer that Cpl. Krasman had that expertise from the very general and broad description of her expertise, being “ performance of numerous forensic examinations on computers. ” Again, it was Judge Veldhuis ’ s right to draw that inference. [ 102 ] The accused argues that Cst.

Morcom misled Judge Veldhuis because he did not know how the child pornography ended up on the Computer. The fact is that there was evidence of what appears to be child pornography on the Computer. The reason why Cst.

Morcom prepared the ITO was to obtain the General Warrant that would allow Mr. LaFontaine to attempt to determine how the alleged child pornography got there. [ 103 ] This Court finds that Cst. Morcom did not mislead Judge Veldhuis, or misrepresent the facts as he knew them at the time. [ 104 ] Even if this Court were to excise the Technical Information, which this Court rejects, there remains a sufficient basis on which Judge Veldhuis could issue the General Warrant.

For example, if this Court were to excise all the Technical Information, the main portions of the ITO would remain, being the alleged charge, the identity of the Computer, the information that Mr. Sopczak provided to Cst. Morcom, including the fact that the accused was the person who brought the Computer to the MyMac, the description of the digital movie that Mr. Sopczak viewed and the names of the various picture and video files on the Computer, and Cst.

Morcom ’ s belief that the information acquired from the Computer will afford evidence that the accused possessed and accessed child pornography. [ 105 ] Thus, there was a basis on which Judge Veldhuis could issue the General Warrant. Save for one exception which this Court will discuss in a moment, it finds that Cst. Morcom did not mislead Judge Veldhuis, commit a fraud in the information contained in the ITO, or fail to disclose any relevant information. He obtained the assistance of Cpl.

Krasman, an experienced officer in the field of child pornography, as well as the Crown. [ 106 ] The one exception is the statement that Cst. Morcom made that he believed “ there are no other provisions in the Criminal Code of Canada or any other Act of Parliament that would otherwise provide for a warrant, authorization or order permitting the procedure to be used ” : ITO p 9. Cst. Morcom, in this case, chose to obtain a general warrant pursuant to Criminal Code s. 487.01, rather than a conventional search warrant pursuant to Criminal Code s. 487.

Parliament created the authority of the courts to issue a general warrant in 1993 (SC 1993, c 40, s 15), to fill “ an investigatory hiatus ... where the distinction between investigation and search may be unclear ” : James A Fontana & M David Keehan, The Law of Search and Seizure in Canada , 8 th ed (Markham, Ont: LexisNexis Canada, 2010) at 459. Through Criminal Code s. 487.01, the courts may give the police authority to do something that, without that authority, the police would be breaching Charter s. 8: R. v. Ha , 2009 ONCA 340 at para 25 , 249 OAC 43 , leave to appeal refused [2009] SCCA No 295.

This provision is “ general ” in the sense that the statute does not contemplate the method or technique that the police might use while they are conducting their investigation, ibid . In fact, that is the reason for the wording in Criminal Code s. 487.01(1)(c). [ 107 ] Even though the investigating officer could obtain a search warrant under Criminal Code s. 487, does that prohibit them from seeking a general warrant?

Courts of appeal have held that the investigating officer is not prohibited from obtaining a general warrant to gather additional and possibly better evidence than the evidence seized pursuant to a search warrant issued under Criminal Code s. 487: R. v. Ford (2008), 2008 BCCA 94 at para 51 , 229 CCC (3d) 443 . Here the CPS was not seeking additional or possibly better evidence. They were seeking the evidence to show that the accused committed the alleged offences. [ 108 ] In many cases, the “ information ” will be something physical; a document or a knife or a gun.

However, the search warrant or general warrant scheme does not fit neatly when we are dealing with electronic or “ virtual evidence ” : R. v. Bishop , 2007 ONCJ 441 at para 22 , 75 WCB (2d) 258 . [ 109 ] Criminal Code ss 487(2.1) and 487(2.2) are strangely worded (see Appendix A).

It appears that these sections were intended to address the issue where a computer system might be searched, viz. , “ in a building or place. ” As well, it appears to address how the search may be undertaken, viz. , using any computer system at the building or place, reproduction of information or using copying equipment, and requiring a person in possession or control of the building to allow the investigators to use the building and computer system. This appears, at first blush, to deal with large computer systems in an organization.

However, those sections do not explicitly restrict their application to that kind of scenario. [ 110 ] The accused argues that a “ computer system ” might be a single system, as we have in the case of the Computer, citing Criminal Code s 342.1. However, that

section relates only to a reference to a “ computer system ” in that section. Nonetheless, because the opening words of Criminal Code s. 487(2.1), say “ A person authorized under this

section to search a computer system, ” this suggests that Criminal Code s. 487 permits a justice to issue a warrant to search a computer system contained in a single computer and not just a large computer system in an organization. That is what Ricchetti J. found in R. v. Blazevic , 2011 ONSC 7549 at para 32 , when he said, “ the police have the right to search computers with a search warrant under s. 487 of the Criminal Code to assist them in uncovering evidence associated with an offence. ” See also R. v. Weir , 1998 ABQB 56 , 59 Alta LR (3d) 319 aff ’ d 2001 ABCA 181 , 156 CCC (3d) 188 ; R. v.

Dragos (2009), 200 CRR (2d) 227 at para 25 (Ont Sup Ct J) ; Edmonton Police Service v. H(A) , 2011 ABPC 124 at para 19 .

[ 111 ] The Crown ’ s counsel argues that copying of the hard drive and the use of a specific programme to examine its contents is a procedure or technique that is not contemplated through the use of a search warrant issued under Criminal Code s. 487. Mr. LaFontaine was not seizing physical evidence. As the Ontario Court of Appeal stated in Ha at para 24 : There are significant differences between the investigative powers described in s. 487 and those set out in s. 487.01 . Unlike s. 487, s. 487.01 is not limited to searches of "a building, receptacle or place". There are no spatial limitations on s. 487.01 .

Nor is it limited to any particular investigative technique or procedure. Apart from a prohibition against interference with the bodily integrity of a person (s. 487.01(2)), there are no express limits on the investigative methods that may be authorized. The court went on to say that Criminal Code s. 487.01 retains the important aspect of balancing the investigative means to assist in law enforcement against an individual ’ s right to privacy and unreasonable search and seizure. [ 112 ] Perhaps Cst. Morcom was seeking these wide-open search powers. The ITO (and, later, the General Warrant) does not say this.

As well, if the “ procedure ” were limited to the detailed procedure outlined in the ITO, there might not be anything in the Criminal Code that permits that procedure. However, Criminal Code ss 487(2.1)(b), (

c) and (

d) allow for the copying of the data, which is essentially the procedure that the ITO contemplates. [ 113 ] Thus, this Court finds that Cst. Morcom ’ s statement that “ there are no other provisions in the Criminal Code ... that would otherwise provide for a warrant, authorization or order permitting the procedure to be used ” was incorrect. Does this incorrect statement, of itself, require this Court to find that the CPS has breached Charter s. 8? Garofoli at pp 1453-54 and Lising at para 30 , say that although this fact is relevant, it is not determinative.

This Court must still examine the whole of the circumstances and facts outlined in the ITO to determine whether there remains any basis for the decision that Judge Veldhuis made when she issued the General Warrant. As well, this Court may consider this incorrect statement in any Charter s 24(2) analysis it conducts if it finds a Charter s. 8 breach. When this Court examines the whole of the circumstances, it finds that even with this incorrect statement, Judge Veldhuis had sufficient information and evidence in front of her to provide a basis for her to issue the General Warrant. It is worth noting that had Cst.

Morcom applied for a search warrant under Criminal Code s. 487, Judge Veldhuis had the necessary evidence in front of her to grant that type of search warrant. [ 114 ] Finally, the accused argues that Cst. Morcom must explain why he believed “ it is in the best interests of the administration of justice to issue the warrant. ” By that, he means that Cst. Morcom must provide the Judge Veldhuis with a list of the reasons why he believes this is the case. Judge Veldhuis was required to review the ITO as a whole: Khan at para 40 .

The other facts listed in the ITO, even if one were to excise the Technical Information, shows that it was in the best interests of the administration of justice for Judge Veldhuis to issue the General Warrant. Absent that information, this Court might agree with the accused ’ s argument, but with that information, Cst. Morcom was justified in making that statement. 5. Conclusion on the ITO [ 115 ] With exception of the incorrect statement that Cst.

Morcom made concerning whether there were other provisions under which he could seek a warrant, which this Court concludes does not affect the validity of the ITO as a whole, this Court finds that there was a basis on which Judge Veldhuis could be satisfied that the relevant statutory preconditions were met that allow her to issue the General Warrant: Darby at para 23 . Similar to the court in R. v.

Pelich , 2012 ONSC 3027 at para 25 , this Court finds that the ITO provided Judge Veldhuis with full and frank disclosure of the material facts and there were reasonable grounds for Judge Veldhuis to believe that there would be evidence of child pornography found on the Computer. Accordingly, this Court finds no breach of Charter s. 8 on this ground. D. The General Warrant [ 116 ] The General Warrant sets forth the offences that Cst. Morcom believes that the accused has committed or will commit, viz. , possession and accessing child pornography.

It then says that information concerning those offences will be obtained through the use of a device, investigative technique or procedure being:

Using established procedures, and software written specifically for the purpose of extracting information and data from computer systems and storage media, a police officer, or person designated by a police officer, trained in computer forensic examinations, will conduct a forensic acquisition on MacBook Pro serial number W8652AYXWOG and make an exact duplicate (image) of all the data and information stored on the MacBook Pro serial number W8652AYXWOG. The acquisition methods employed will ensure that no changes will occur to the data. Mr.

LaFontaine advised this Court, and this Court accepts his advice, that there is a danger of corrupting the Computer ’ s integrity if he reviewed the Computer ’ s original hard drive. It was safer for him to create an image of the Computer ’ s hard drive prior to any further examination. [ 117 ] The accused argues that the General Warrant authorized Mr. LaFontaine only to duplicate the data and information that was stored on the Computer ’ s hard drive, but not to search the image. Mr. LaFontaine ’ s examination of the image, or data, that he extracted was outside of the scope of the General Warrant.

Implicit in this argument is that the police were required to obtain a second warrant to search the image. [ 118 ] As the Alberta Court of Appeal said in R. v. Weir , 2001 ABCA 181 at para 19 , 156 CCC (3d) 188 [ Weir ] , this argument is “ untenable. ” The court explained why this argument is untenable, as follows: The police had a warrant to seize the computer from the appellant's home. That is exactly what they did. As long as the [computer] was seized properly, the information contained in it could be extracted at a later date.

To adopt the analogy used by the trial judge, this is not unlike the seizure of blood in which police do not want the blood, but rather, the information that the blood can provide. See also R. v. Ballendine , 2011 BCCA 221 , 271 CCC (3d) 418 , which, it should be noted was decided after Morelli . [ 119 ] In Weir , the Alberta Court of Appeal did not outline the wording contained in the search warrant that the police had obtained in that case.

In the decision of the Court of Queen ’ s Bench of Alberta which was appealed (reported at 1998 ABQB 56 , 59 Alta LR (3d) 319 ), Smith J. attached a copy of the warrant to search, which contained the following authorization: ... to enter into the said location and to search for the said things and bring them before me or some other Judge or Justice.

The “ things ” were described as follows: Computer equipment including magnetic or other machine readable storage equipment, programs or software associated with the said equipment, or any other device and associated software and manuals, used or capable of being used to create, store or manipulate electronic documents, records or graphic files related to the persons and time frame in question. [ 120 ] Nowhere in the warrant to search is there authority for the police to actually search the “ things ” themselves; only to search a specific address on a

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