R v Marek, 2016 ABQB 18

Court of Queen ’ s Bench of Alberta Citation: R v Marek, 2016 ABQB 18 Date: 20160107 Docket: 130825011Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Mark Marek Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M. T. Moreau _______________________________________________________

Table of Contents I. Introduction . 3 II. Background Facts . 3 III. The law governing s 8 Charter applications . 5 IV. The law governing computer searches . 6 V. The legality of the search warrants . 10 Validity of ITO #1 . 12 IP address information . 13 Media interviews . 15 Linkage between the Video and the Website . 17 Validity of ITO #2 . 17 Sourcing versus Uploading Video . 17 The seizure and search of the 14 devices . 18 Validity of ITO #3 . 21 VI.

The Reasonableness of the Searches . 21 The timeframe of the searches . 25 No limits on the searches . 27 Journalist-source privilege . 31 Solicitor-client privilege . 32 VII. Section 24(2) of the Charter 33 Seriousness of the breach . 33 Impact of the breach on the accused’s Charter-protected rights . 35 Society’s interest in a trial on the merits . 35 VIII. Conclusion . 36 I.

Introduction [ 1 ] Mark Marek seeks an order, pursuant to s 8 of the Canadian Charter of Rights and Freedoms [ Charter ] that three search warrants are unlawful, and an order, pursuant to s 24(2) of the Charter , excluding the fruits of the searches conducted pursuant to each warrant. Mr. Marek maintains that the search warrants did not comply with the requirements of s 487 of the Criminal Code , that the searches were overbroad and that the admission of the evidence seized pursuant to each of the searches would bring the administration of justice into disrepute .

The Crown maintains that the search warrants complied with s 487 of the Criminal Code and the requirements of s 8 of the Charter. II. Background Facts

[ 2 ] Mr. Marek is charged under s 163(1) of the Criminal Code with publication of obscene material. It is alleged that in May 2012, he operated the website BestGore.com [the Website] and that he posted on the Website a video depicting the murder and dismemberment of a human victim titled “1 Lunatic, 1 Icepick” [the Video].

During the course of the police investigation, Detective Camp swore three Informations to Obtain, which were relied on for the issuance of each of the three search warrants being challenged. [ 3 ] In the first Information to Obtain, sworn by Detective Camp on January 29, 2013 [ITO #1], he stated his belief that Mr. Marek posted the Video to the Website, that he owned, administered, stored, controlled and managed the Website, that he transiently lived in Edmonton and frequently changed his address. Detective Camp stated that the Website content was on a computer at Mr.

Marek’s physical address, and/or a laptop, and/or a portable external hard drive. Detective Camp believed the Canadian Air Transport Security Authority [CATSA] captured x-ray images from the carry-on bag in Mr.

Marek’s possession as he passed through the Edmonton and Vancouver airports on January 19 and 20, 2013 respectively, and these images would determine if he was carrying a laptop or external hard drive that could be used to store the content of the Website. [ 4 ] Detective Camp referred to having viewed the Website and approximately 20 videos depicting varying manners of human death or the aftermath of death. He had been advised that Cst. Eric Huot of the RCMP logged onto the Website in May 2012 and that he and another officer viewed the Video. Cst.

Huot then copied the Video to a DVD, a copy of which Detective Camp had received. [ 5 ] Detective Camp deposed that Cst. Gainor of the Edmonton Police Service Technological Crimes Unit visited the Website on June 1, 2012, and downloaded the page that hosted the Video. While the link to the Video was still embedded in the page coding, the Video was not working at the time. Cst. Gainor downloaded two copies of the Video from public torrents via the Internet. The downloaded video contained the watermark of the Website.

ITO #1 went on to refer to IP addresses and to an email received from “mark” at the Website, which referred to Mr. Marek as the owner of the Website, along with comments made by Mr. Marek in emails and online media interviews linking him to the Website. On the basis of ITO #1, a search warrant was issued pursuant to s 487 of the Criminal Code on January 29, 2013, authorizing a search for the x-ray images of a carry-on bag in Mr. Marek’s possession on January 19 and January 20, 2013 at the Edmonton and Vancouver airports, along with boarding pass information for those dates, and any video or still pictures of Mr.

Marek at each of the airports on those dates. The search was authorized for between 12 a.m. on January 29, 2013 and 12:00 a.m. on February 12, 2013. [ 6 ] The second Information to Obtain sworn by Detective Camp on July 12, 2013 [ITO #2] referred to CATSA having captured x-ray images of a laptop in Mr. Marek’s possession along with a possible external hard drive that could be used to store the content of the Website. Detective Camp deposed that Mr. Marek had arrived at the Vancouver airport on July 10, 2013 from the Philippines in possession of a laptop, hard drives and other storage devices.

The Canadian Border Security Authority [CBSA] seized all 14 devices from him and was holding the items at the direction of the Edmonton Police Service [EPS]. The seized items included a laptop, digital cameras, memory cards, USB drives, external hard drives and an MP3 player.

Detective Camp sought the warrant to continue the seizure and to search the devices, stating his belief that they “…will afford evidence that MAREK is the administrator, manager and content controller of BestGore.com, uploaded the video “1 Lunatic, 1 Icepick” to BestGore.com which constituted a breach of Section 163(1) of the Criminal Code .” [ 7 ] ITO #2 repeated sections of ITO #1 regarding the prior investigation of the Website, and contained additional information regarding Detective Camp’s viewing of approximately 50 videos depicting various manners of human death or the aftermath of death.

ITO #2 repeated sections of ITO #1 relating to the prior viewing by police of the Video, and linking Mr. Marek to the Website. ITO #2 also referred to the circumstances of the CBSA’s seizure of the 14 items from Mr. Marek on July 11, 2013 at the Vancouver airport. It also referred to a CBSA officer having observed “gruesome” videos and pictures on Mr. Marek’s laptop and having been told by Mr. Marek that he was the owner of the Website and that he uploaded images remotely to his servers when he had Internet access.

Detective Camp stated his belief that the 14 items seized by the CBSA were used in the commission of the offence of corrupting morals, that Mr. Marek had placed the Video and “other obscene matters” on the Website, and that the Website’s content was obscene. [ 8 ] On the basis of ITO #2, a search warrant was issued pursuant to s 487 of the Criminal Code for the 14 items seized by the CBSA. It authorized the search to be conducted between 6 a.m. on July 16, 2013 and 11 p.m. on July 20, 2013. Three cameras seized pursuant to the search warrant were later returned to Mr. Marek. [ 9 ] Mr.

Marek was arrested on July 16, 2013 in Edmonton. During his arrest, police seized from him a Samsung laptop and three memory cards. Detective Camp swore the third Information to Obtain [ITO #3] on September 10, 2013, reprising some information contained in ITO #1 and ITO #2, and referring to a videotaped “post-chartered and cautioned interview” with Mr. Marek on July 16, 2013, in which Mr. Marek admitted having viewed the Video prior to loading it onto the Website and that he was the sole administrator of the Website. ITO #3 was sworn after Mr. Marek’s arrest, and had ITO #2 appended to it.

ITO #3 also referred to a post-arrest statement of Mr. Marek that the laptop he had been arrested with was his, that it was used by him for four years to administer the Website prior to buying the Toshiba laptop in early 2013. On the basis of ITO #3, a search warrant was issued, pursuant to s 487 of the Criminal Code , for the laptop and the three memory cards seized from Mr. Marek at the time of his arrest. The search was authorized for between 0000 hours on September 11, 2013 and 2359 hours on December 11, 2013. [ 10 ] Mr.

Marek is not represented by counsel and I directed, with the consent of Crown counsel, that an amicus curiae be appointed to assist the Court with his s 8 Charter motion and his application to cross-examine Detective Camp on the ITOs he swore. I subsequently granted leave to cross-examine Detective Camp on limited and specific portions of the ITOs; and also granted Mr. Marek’s application to expand his s 8 Charter challenge to ITO #1 not previously included in his motion. [ 11 ] Mr.

Marek deposed in his Affidavit, filed in support of his motion, that: - he was the only person who used the devices seized and they were used for both professional and personal undertakings; - the content of the seized devices included intimate correspondence, financial, medical and personal information, banking records, bills, documents from a lawyer, contact information for family, friends, and associates, calendar information about his social, family and business activities, his past activities and future plans, information about his personal interests and tastes, including lifestyle choices,

websites he visited, and log-in information, including user names and passwords; - the content of the seized devices also included thousands of personal photos, along with photos of an extremely personal nature inrelation to his intimate relationship with his partner; - The R-2 Narrative of Det. Camp, dated October 25, 2013, acknowledged having accessed over 16,000 emails on the seizeddevices; - The SIM/USIM Examination Report of the Technological Crimes Unit noted that investigators accessed personal text messagesbetween himself and his partner. III. The law governing s 8 Charter applications [12]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [13] R v Collins, (SCC), [1987] 1 SCR 265 at para 23, 74 NR 276 , established the basic test fordetermining the reasonableness of a search under s 8: A search will be reasonable if it is authorized by law, if the law itself isreasonable, and if the manner in which the search was carried out is reasonable.

In R v Vu, 2013 SCC 60 , [2013] SCC 60 atpara 21, [2013] 3 SCR 657, Cromwell J, for the Court, noted that s 8 seeks to strike an appropriate balance between the right to be free ofstate interference and the legitimate needs of law enforcement. This balance is achieved in two main ways; firstly, by the requirementthat police obtain judicial authorization for the search before conducting it, usually in the form of a search warrant granted by a judicialofficer.

As noted in Hunter v Southam Inc, (SCC), [1984] 2 SCR 145 at paras 25, 28 and 32, 55 AR 291 : The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlementto a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’sinterest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order toadvance its goals, notably those of law enforcement. … A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search andseizure both at common law and under most statutes.

Such a requirement puts the onus on the state to demonstrate the superiority of itsinterest to that of the individual. … The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the stateand the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has beenmet, and the interests of the state are thus demonstrably superior [emphasis in original]. [14] Secondly, as noted in Vu at para 22, the balance between the right to be free of state interference and the legitimate needs oflaw enforcement is achieved by the requirement that an authorized search be conducted in a reasonable manner, which ensures that thesearch is no more intrusive than is reasonably necessary to achieve its objectives. [15] The onus is on the accused to establish, on a balance of probabilities, the violation of his s 8 Charter rights: Collins at paras21-30.

Warrants are presumed to be valid: R v Campbell, [2010] ONCA 588 at para 45, 261 CCC (3d). An invalid warrant renders thesearch warrantless. A warrantless search is prima facie unreasonable; the burden then shifts to the Crown to show that the warrantlesssearch was, on a balance of probabilities, reasonable: Collins at para 22. IV. The law governing computer searches [16]

Section 487 of the Criminal Code sets out the legal requirements for the granting of a search warrant. To arrive at theconclusion that the searches in this case were authorized by law, the reviewing judge must conclude that s 487, the

section of theCriminal Code referenced in each of the three ITOs and search warrants, was complied with: R v Garofoli, (SCC),[1990] 2 SCR 1421 at 1451, 116 NR

Section 487 states: Information for search warrant 487.

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in abuilding, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have beencommitted, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will revealthe whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the

person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer orenforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who isnamed in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to,the justice or some other justice for the same territorial division in accordance with

section 489.1. Endorsement of search warrant

(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that thecircumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who hasjurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warranttransmitted by any means of telecommunication. Operation of computer system and copying equipment

(2.1) A person authorized under this

section to search a computer system in a building or place for data may (

a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computersystem; (

b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output; (

c) seize the print-out or other output for examination or copying; and (

d) use or cause to be used any copying equipment at the place to make copies of the data. Duty of person in possession or control

(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this sectionshall, on presentation of the warrant, permit the person carrying out the search (

a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to thecomputer system for data that the person is authorized by this

section to search for; (

b) to obtain a hard copy of the data and to seize it; and (

c) to use or cause to be used any copying equipment at the place to make copies of the data. Form

(3) A search warrant issued under this

section may be in the form set out as Form 5 in

Part XXVIII, varied to suit the case. Effect of endorsement

(4) An endorsement that is made in accordance with subsection (2) is sufficient authority to the peace officers or public officers to whomthe warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute thewarrant and to deal with the things seized in accordance with

section 489.1 or as otherwise provided by law. [17] The Ontario Court of Appeal in R v Debot, 1986 CarswellOnt 135 at para 19, 30 CRR 317(Ont CA), aff’d (SCC), [1989] 2 SCR 1140, described the standard of “reasonable ground to believe” as “one of reasonable probability.” [18] An applicant seeking to challenge the legality of a search must establish a reasonable expectation of privacy in the placeand/or thing searched before the issue of violation of the right to privacy can be considered: R v Edwards, (SCC),[1996] 1 SCR 128, 192 NR 81. [19] Crown counsel conceded that Mr.

Marek had a reasonable expectation of privacy in the information contained in his personalcomputers and devices: R v Spencer, 2014 SCC 43 at paras 16-18, 37, [2014] 2 SCR 212. As noted in R v Law, 2002 SCC 10, [2002] 1SCR 227 at 337: This Court has adopted a liberal approach to the protection of privacy. This protection extends not only to our homes and intimatelypersonal items, but to information which we choose, in this case by locking it into a safe, to keep confidential: ...

As a 1972 task force onprivacy and computers noted, informational privacy “derives from the assumption that all information about a person is in a fundamentalway his own, for him to communicate or retain… as he sees fit.” [20] Sopinka J, for the majority of the Court in R v Plant, (SCC), [1993] 3 SCR 281 at 293, 145 AR 104,observed: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a

biographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. [21] As noted by Fish J, for the majority of the Court in R v Morelli, 2010 SCC 8 , [2010] SCC 8 at paras 2-3, [2010] 1SCR 253, it is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of apersonal computer: First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown andinaccessible to you.

There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent andreceived; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical andfinancial records; and all other saved documents that you have downloaded, copied, scanned, or created.

The police scrutinize as wellthe electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet –generally by design, but sometimes by accident. [22] R v Weir, 1998 ABQB 56 at paras 80-91, [1998] 8 WWR 228, aff’d 2001 ABCA 181, confirmed that police have the right tosearch computers with a s 487 search warrant.

In determining whether a further authorization was required to access more secure orinaccessible areas of the computer, Clackson J concluded, in R v Twitchell, 2010 ABQB 693 at para 32, 511 AR 33, that: [O]nce the warrant authorized the search, absent some form of limitation in the warrant, the entirety of the computer’s contents could beexamined.

Accordingly, a new warrant was not necessary to overcome levels of security, encryption, fragmentation, password protectionor deletion in relation to the information the laptop contained. [23] As noted in Hunter at paras 42-43, the purpose of an objective criterion for granting prior authorization to conduct a search orseizure is to provide a consistent standard for identifying the point at which the state’s interests in such intrusions prevail over theinterests of the individual resisting them: “The state’s interest in detecting and preventing crime begins to prevail over the individual’sinterest in being left alone at the point where credibly-based probability replaces suspicion” [emphasis added]. [24] In Vu at paras 1-2, Cromwell J, for the Court, noted that the traditional search and seizure framework allowed police uponobtaining a warrant to search a place, to look anywhere in the place the thing searched for might reasonably be – there was norequirement of prior authorization to search a cupboard or filing cabinet.

However, computers differ from these receptacles and give riseto privacy concerns not sufficiently addressed by the traditional framework. There must be specific prior authorization to search acomputer located in a place. [25] The nature of these devices calls for a specific assessment of whether the intrusion of a computer search is justified, whichrequires prior authorization (para 39).

Cromwell J. described personal computers as touching the “biographical core of personalinformation” with immense storage capacity requiring a computer search to be distinguished from a search of a briefcase found in thesame location (para 41). [26] As to whether there should be a requirement that a warrant to search a computer set out detailed conditions or “searchprotocols” under which the search may be carried out, Cromwell J. observed, at para 53: While I am not convinced that these sorts of special directions should be rejected as a matter of principle, my view is that they are not, asa general rule, constitutionally required and that they would not have been required in this case. [27] He advanced two reasons for this conclusion at para 55.

First, the manner of search is generally reviewed after the fact: That sort of detailed review with evidence and argument from both sides is better suited to developing new rules about how searches areto be conducted than is the ex parte procedure by which warrants are issued. [A]s has occurred in other areas of search law, after-the-fact review may lead courts to set out specific rules according to which searchesmust be conducted. [28] Cromwell J referred to R v Boudreau-Fontaine, 2010 QCCA 1108, [2010] QJ No 5399, where the scope of a computersearch was found to be unreasonable “after the fact”.

The search warrant authorizing the search of the accused’s computer did notauthorize the police to “scour the computer” for evidence that he had engaged in the distribution of child pornography. [29] Second, requiring search protocols in advance of the search “would likely add significant complexity and practical difficultyat the authorization stage” (Vu at para 57), as an authorizing justice is unlikely to be able to predict in advance the kinds of investigativetechniques the police should use or foresee the challenges presenting themselves once the search is underway.

He noted that the easewith which documents can be hidden within a computer will often make it difficult to predict where police will need to look to find theevidence they are searching for, in essence creating “blind spots” in an investigation.

He observed, at para 58, that courts in the UnitedStates have moved away from prospectively restricting the types of computer searches that can be performed, for instance, by file types,titles or key words. [30] Cromwell J concluded, in Vu at para 62, that while in that case a search protocol was not required, authorizing justices havethe discretion to impose conditions to assure themselves that the warrants they issue fulfil the objectives of prior authorization set out inHunter. V.

The legality of the search warrants [31] In Garofoli at 1445, the Court set out two types of attack on a search warrant: the first relating to its facial validity, and thesecond relating to its sub-facial validity. In the first type of attack, the record consists only of the ITO. A voir dire is not required

because the alleged error is apparent on the face of the ITO or warrant: R v Sadikov, 2014 ONCA 72 at para 37, 305 CCC (3d) 421. Thesecond type, which is an attack on the sub-facial validity of the warrant, goes behind the form of the ITO or warrant to impeach thereliability of its content: Ibid at para 38. The reviewing Court does not ask whether it would have authorized the search warrant, butwhether there was sufficient credible and reliable evidence to permit an issuing justice to authorize the warrant: R v Araujo, 2000 SCC65 at para 51, [2000] 2 SCR 992.

The fact that upon further investigation, the grounds relied upon in support of the authorization mayprove to be false does not retroactively invalidate what was an otherwise valid authorization: R v Pires; R v Lising, 2005 SCC 66, [2005] SCC 66 at para 41, [2005] 3 SCR 343.

Nor, however, can the results of the search ex post facto provide evidence of thereliability of the information contained in the ITO: Garofoli at 1457. [32] An ITO may contain hearsay and bad character evidence if relevant to the application: Garofoli at 1456. [33] The accused has the burden of demonstrating the insufficiency of the ITO: Morelli at para 131; Sadikov at para 83. Thereviewing court must exclude from its consideration erroneous, irrelevant and misleading information.

Where erroneous informationresults from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification evidence may be led.Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not informationacquired later: Morelli at para 43; Sadikov at para 85. However, there would be no need to seek to amplify the record if sufficientreliable material remains even after excising the erroneous material: Araujo at para 57; Morelli at paras 40-41.

The issue is whether, onthe amplified record, the authorizing justice could have issued the warrant: Garofoli at 1451; Araujo at para 51. [34] In R v Sismey, (BC CA), 1990 CarswellBC 638 at para 10, 55 CCC (3d) 281 (BCCA), which involved anappeal from a refusal to grant certiorari to quash a search warrant, Proudfoot JA noted that cases that are not clearly in the category of“inadvertent error” on the one hand, or clearly in the category of “deliberately misleading” on the other, must be considered individuallyto decide “whether the case is one where, if the information in support of the warrant is clearly sufficient, without the erroneous part, thesearch warrant should be allowed to stand.” [35] There is a legal obligation on anyone seeking an ex parte authorization to make full and frank disclosure of material facts:Araujo at para 46.

In Morelli, Fish J referred to several misleading passages in the ITO that suggested that the computer technicianactually viewed illegal pornography on the computer rather than suspiciously labelled bookmarks. As this claim was false, Fish Jconcluded, at para 48, that the statements to that effect must be excised from the ITO. He also concluded that the ITO in several placesgave an incomplete and misleading account of the facts, despite the informant’s duty to make full and frank disclosure of all materialinformation.

As Fish J. noted at para 58, a police officer, and indeed any informant, must be particularly careful when seeking an exparte authorization not to “pick and choose” among the relevant facts in order to achieve the desired outcome: “The informant’sobligation is to present all material facts, favourable or not”[emphasis in original version]. [36] Errors in an ITO, whether advertent or even fraudulent, are only factors to be considered in deciding whether to set aside anauthorization and do not lead automatically to its vitiation: R v Bisson, (SCC), [1994] 3 SCR 1097 at 1098, 173 NR 237.

In R v Nugent, at para 17, 193 CCC (3d) 191 (Ont CA), inclusion of erroneous information in an ITO wasnot found to reflect a lack of care on the part of police. The reviewing judge must assess the evidence placed before the authorizingjustice, in the light of the evidence brought out on the review, in order to determine whether, after expunging any misleading orerroneous information, sufficient reliable information remains to support the warrant: Araujo at paras 51-53.

The test is whether therewas reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: Ibid at para 54.

Onlyerroneous information needs to be excluded from consideration on review, and that material may be amplified by evidence on reviewshowing the true facts, provided the erroneous information is not part of a deliberate attempt to mislead the authorizing judge: Araujo atpara 56; Morelli at para 41. [37] In respect of non-disclosure of material facts, it was noted in Araujo at para 57, that the reviewing judge must determinewhether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts foundto have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue.

Validity of ITO #1 [38] Mr. Marek and the amicus curiae argued that ITO #1, sworn by Detective Camp, did not meet the statutory preconditions of s487. His stated reason for requesting the search warrant was to “assist in an ongoing investigation.” He did not set out any reasonablegrounds to believe that the things to be seized and searched were evidence that was used in the commission of the alleged offence, nordid he set out his reasonable and probable grounds to believe an offence had been committed, a statutory precondition to

section 487.Finally, ITO #1 did not particularize any alleged date of the offence or establish any grounds to believe that Mr. Marek was in theprovince of Alberta or Edmonton when the offence was committed. It is noted, however, that Detective Camp deposed, at para 5, to hisbelief that Mr. Marek lived in Edmonton, “however is transient and frequently changes his address.” He stated, at para 6: “I believe theBest Gore website content is on a computer at Marek’s physical address in Edmonton, Alberta and/or a laptop or an external hard drivethat is portable.” [39] The amicus argued that the images of Mr.

Marek passing through airport security, which were the subject of ITO #1, couldnot possibly afford evidence of the commission of an offence. The only material fact this search could further was the possibility thatMr. Marek had a laptop in his possession, which Detective Camp had sworn in ITO #1 he had reasonable grounds to believe.

How couldhe have reasonable grounds for that belief when he stated, at para 61, that the images sought “would determine if MAREK is carrying alaptop or external hard drive which could be used to store the content for the website BestGore.com.” The amicus submitted that at thisstage of the investigation, the use of the phrase “could be used” was indicative of the fact that Detective Camp had only suspicion, notreasonable grounds to believe that Mr. Marek possessed a laptop. If this was the case, he could not have had reasonable grounds tobelieve that the Website content was on a computer at Mr.

Marek’s physical address in Edmonton (para.59). [40] Crown counsel argued that ITO #1 viewed as a whole refers to why the warrant is being sought and expressly notes that the“things” will afford evidence of the offence of Corrupting Morals contrary to s 163(1). There was ample evidence in ITO #1 to

substantiate this, as it afforded evidence of the linkage between the x-ray images sought, the laptop or external hard drive as a means ofstoring the content of the Website, and Mr. Marek’s connection with the Website. The purpose in seeking the warrant was clear, namely,to determine if Mr. Marek had in his possession electronic devices capable of storing the imagery from the Website. ITO #1 set out atlength the basis of Detective Camp’s belief that Mr. Marek was responsible for the content of the Website, including his statements invarious media interviews. With that information and the information that Mr.

Marek was passing through an airport from out of thecountry, the things sought would determine whether the devices used to commit the s 163(1) offence were on his person. ITO #1 was ina proper form and set out an objective basis for the affiant’s subjective belief. [41] Crown counsel noted in response to the issue raised by the amicus as to how Detective Camp could swear that Mr. Marek“will have” a laptop, that ITO #1 also referred to him being transient, moving from place to place and that the Website continues despitethis. It was hardly speculative in the context of that information to infer that Mr.

Marek had portable devices capable of accessing theWebsite. Suggesting he may have other devices was not pure speculation. [42] I note that in Vu, the ITO contained no statement by its author that there were reasonable grounds to believe that documentsevidencing ownership or occupation would be found in the residence. An issuing justice is entitled to draw reasonable inferences fromthe material in the ITO: Vu at para 40. The issue on review is whether the ITO contains any facts to support such a belief by the ITOauthor.

As noted at para 16, reviewing justices must take into account that authorizing justices may draw inferences from the evidence inthe ITO and the informant need not “underline the obvious.” The ITO in that case contained facts sufficient to allow the authorizingjustice to draw the inference that there were reasonable grounds to believe that documents evidencing ownership or occupation would befound in the residence: paras 14-17. I find that there were facts sufficient to allow the authorizing justice to draw a similar inference.There was information to suggest Mr.

Marek was transient and media interviews conducted linked him to the administration of theWebsite. [43] As regards the argument that there must be reasonable grounds that the items sought would afford evidence of the actualcommission of the offence under investigation, Moldaver JA (as he then was) rejected this argument in R v Canadian BroadcastingCorp (1992), (ON SC), 77 CCC (3d) 341 at 351, [1992] OJ No 2229 (Ont Gen Div): It is not necessary that the thing in itself should be evidence of the crime, but it must be something either taken by itself or in relation toother things, that could be reasonably believed to be evidence of the commission of the crime. [44] Similarly in this case, it was expected that x-ray information and images would identify a computer in Mr.

Marek’s possessioncontaining evidence of the commission of the crime targeted. As noted in Lubell v R, (ON SC), 1973 CarswellOnt1068 at para 4, 11 CCC (2d) 188 (Ont H Ct

J) a search warrant “is not intended to be a carte blanche, but at the same time the applicantsmust be afforded a reasonable latitude in describing the things that they have reasonable ground (sic) to believe they might find.” I findthat there was a sufficient nexus between the things to be searched and the commission of a crime at that stage of the investigation. IP address information [45] Mr. Marek argued that ITO #1 contained false information allegedly linking Mr. Marek to a series of IP addresses with acommon post office box address in Edmonton.

Also, with respect to the series of IP addresses starting with the number 69, DetectiveCamp stated in ITO #1 that they were registered with Telus, however, under cross-examination, he agreed that this was not correct, asconfirmed in his investigator’s notes, and that the only company listed in relation to these IP addresses was Cyber Wurx. [46] He also acknowledged that in ITO #1, he referred to an email EPS had received on June 6, 2012 from mark@bestgore.com,with an IP address starting with the number 209, which his investigators notes indicated was a “static IP in Edmonton, Telus.” In theemail, the author explained that he owned the Website.

He stated that the 209 IP address was registered to the same address as the otherIP addresses, namely, PO Box 104, Stn Main, Edmonton, Alberta. Detective Camp testified that he eventually determined throughobtaining a production order that the 209 IP address in fact belonged to “C. Brooks” at a Fort Road address, and not to a “PO Box” inEdmonton as alleged in both ITOs.

This information was not disclosed in ITO #1 sworn in January 2013, although I find it was in hispossession around June 28, 2012. [47] Other exculpatory information excluded from ITO #1 was the fact that no one could be living at PO Box 104, Stn Main,Edmonton, Alberta as this was a postal box in a Canada Post outlet.

The amicus noted the caution in Morelli at para 58, that a policeofficer must be particularly careful not to pick and choose among the relevant facts in order to achieve the desired outcome. [48] The amicus referred to the statement in ITO #1 that a number of unique IP addresses matching the Website were registered toMark Marek at PO Box 104 Station Main, Edmonton, Alberta, however, it did not link the IP addresses to the subject of the search,namely the images of Mr. Marek at the Vancouver airport. Nor was the information that the IP addresses for the Website were registeredto Mr.

Marek sufficiently corroborated by other evidence tending to show that Mr. Marek was managing the Website. He referred to R vBrade, 2013 BCSC 2095, 2013 CarswellBC 3482, a situation where the police had received a tip that the accused had joined an onlinechatroom with a tipster and had attempted to sell the tipster the sexual services of an underage male. Police investigated the username ofthe accused, and through his IP address traced him to his home.

The trial judge found that the ITO did not provide sufficient credible andreliable evidence that offences had been committed or that there was evidence of this in the accused’s home.

In particular, the trial judgefound that there was no evidence as to the technical aspects of storing or recording chat room conversations on a computer or of thehabits of pornography consumers in respect of chat room conversations, such that there was no basis in the ITO for a reasonable beliefthat a search of the accused’s computer would afford evidence of the alleged offences. [49] Here, argued the amicus, there was no investigation as to how the Website was purportedly being managed by Mr.

Marekfrom his personal computer and how evidence of that control would be found in his personal belongings earmarked for seizure by ITO#1. The amicus also submitted that ITO #1 does not make the distinction clear between registration of IP addresses and their physicallocation. [50] Crown counsel in response noted that unlike the situation in Brade, here there was also evidence in the form of media

interviews in which Mr. Marek made statements clearly placing him in control of the Website. Also, in this case, there was evidence of publication of the Video, and as such, a basis for believing that an offence had been committed. That information was provided to Detective Camp not by a mere tipster, but by a member of the EPS Technical Crimes Unit, by the RCMP Open Source Criminal Intelligence Section, and by the EPS Strategic Intelligence Unit. [ 51 ] Crown counsel argued there was no ambiguity in the IP addresses noted in ITO #1.

It made clear what entity corresponded to the IP addresses and where the server from which the websites operating from those IP addresses was housed. [ 52 ] As to the argument that the production order showed the IP address for the email as corresponding to an address on Fort Road in the name of “C Brooks” and that this exculpatory information should have been provided to the issuing justice along with the information that no one was living at the “PO Box” nor were there any computers there, Crown counsel submitted that it would be unlikely that any justice would believe that a “PO Box” was anything other than what it was, a box at a post office.

Crown counsel also noted that ITO #1 did disclose, at para 49, that the IP address came back to a Fort Road address. Even if the information about the Fort Road address indicated an IP address from which a single email was sent was registered to a “C Brooks,” there was no suggestion in the cross-examination of Detective Camp, or otherwise in the evidence, that C Brooks might be an alternate suspect.

At its highest, the failure to refer to C Brooks in connection with the Fort Road was merely an error, not a deliberate omission, and should not result in the excision of the entire portion of ITO #1 relating to IP addresses connecting Marek to the Website. Even if excised, there is other evidence linking Mr. Marek to the administration and control of the Website, including the media articles. [ 53 ] It is clear that Detective Camp had the information as to the physical address corresponding to the number 209 IP address starting when he authored ITO #1.

There is confusion between para 40, which confirmed that the number 209 IP address was registered to the same post office box number as the series of number 69 IP addresses, and para 49, that referred to the IP address for “MAREK’s email” as the Fort Road address. Detective Camp did not disclose that the Fort Road address was registered to C. Brooks. This would have been information important to complete the ITO, which linked the number 69 IP addresses and the number 209 IP address to a common post office address in Edmonton.

The failure to clarify the true state of affairs both that the number 69 IP addresses were not in fact “registered with Telus Communications Company in Edmonton” (para 36 of ITO #1) and that the number 209 IP address was not registered to a common box number in Edmonton (para 40 of ITO #1) might have had some impact on the decision of the authorizing justice to issue the warrant based on a local connection between Mr.

Marek and the IP addresses that could, in turn, be linked to the Website. [ 54 ] I am not of the view that these errors were deliberate on Detective Camp’s part, or that the errors taint the entire warrant. However, the entirety of para 36 except the first sentence is excised, along with the second sentence of para 40. [ 55 ] As para 33 of ITO #2 contains the same information as para 36 of ITO #1, the incorrect portions are similarly excised from it. However, ITO #2 does refer, at para 37, to the information regarding C Brooks and the Fort Road address and the contents of para 40 of ITO #1 are not repeated.

Accordingly, no additional excision relating to the number 209 IP address is required in ITO #2. Media interviews [ 56 ] In ITOs #1 and #2, Detective Camp referred to media Internet and email interviews with Mr. Marek to support his belief that Mr. Marek controlled the Website. Mr. Marek takes issue with Detective Camp’s conclusory statement in both ITOs that “[i]n an interview via email between MAREK and a CBC reporter, MAREK takes ownership of the content.” Detective Camp also stated that “he explains that his website reports reality and real life events.” However, nowhere in the interview did Mr.

Marek state that Bestgore.com was his website, although the interviewer referred to it in the course of the interview as “your website.” [ 57 ] Mr. Marek objected to an inference of control being drawn from the reference in a post on the website to “Mark” as the author. While not a strong inference of control without the last name, this reference, read in the context of the interviews Detective Camp summarized, provided some linkage between Mark Marek and the Website.

I also note that in the responses attributed to Mark Marek to interview questions posed by email or online, he did not take issue with the characterization of the Website as is evident from the interview. Another interview referred to by Global Edmonton attributes the following comment to Mr. Marek: “The fact that I published the video in the first place helped a great deal...” Another interview conducted by the Ottawa Citizen reported Mr. Marek stating in an online interview that the Video had been circulating on TOR before it ended up on his site. [ 58 ] Both Mr.

Marek and the amicus objected to Detective Camp’s reliance on double hearsay and the fact that he assumed that the reporting sources were reliable without any corroboration or further investigation as to the age of the information, its source or how it was located. The cumulative impact of the incomplete IP address information and the interviews was to overstate the evidence tying Mr. Marek to the Website and to the offence charged. [ 59 ] Crown counsel maintained that there are evidentiary underpinnings for the conclusory- type statements in ITO #1 linking Mr. Marek to the Website.

The media reports should be read in the context of the portions of ITO #1 linking Mr. Marek to the Website, in particular an email to the EPS titled “Mark Marek, Owner of Bestgore.com” sent by Mark@Bestgore.com, and multiple references to “Mark” as signatures at various pages on the site. The journalists in question could not be compelled by police to swear affidavits in support of an ITO. Asking a journalist to perform this task would be highly unusual in the course of an ongoing investigation where a sealing order was also being sought.

As for ITO #1 lacking specificity regarding the dates and where the media reports were retrieved from, Crown counsel noted that Detective Camp did state when he printed out the articles, and provided the date of posting of one of three of them. There was sufficient objective information to permit consideration of the articles. [ 60 ] Crown counsel also argued that to view the media articles through the analytical framework of a confidential informant is not helpful. The information of a confidential informant or tipster is different from the work product of a journalist producing the

article in the course of his or her employment. The fact that multiple reports referred to having received similar information from a person claiming to be Marek (including a photograph supplied by Mark Marek) strengthens the reliability of the information. [ 61 ] A search warrant is an investigative tool. As noted in R v Hatton , 2011 ABQB 242 at para 73 , 274 CCC (3d) 538,

information which is “double hearsay” is not, ipso facto , unreliable, provided that the information can withstand vigorous analysis. I note that the articles referred to in ITO #1 took the form of email interviews as opposed to the interviewer merely summarizing the responses of the person being interviewed. While Detective Camp summarized the articles, apart from conclusory statements, there was no significant factual error that could be pointed to in his

summary. The police received an email from a person identifying himself as “Mark Marek, Owner of Bestgore.com” over a year prior to his arrest. The articles and the email provided an independent basis for Detective Camp’s belief that Mr. Marek had control of the Website sufficient, in my view, to establish reasonable and probable grounds justifying the seizure and search authorized in the first warrant. Linkage between the Video and the Website [ 62 ] Mr. Marek also pointed out that in ITO #1, Detective Camp asserted that Cst.

Gainor downloaded two copies of the Video from public torrents via the Internet, “as it was posted on the site” (para 33). This would indicate there was a separate source for the Video. Mr. Marek questioned how the fact that two copies were downloaded by Const. Gainor from another source could be linked to an alleged posting on the Website. He submitted that ITO #1 is flawed and deficient as it did not clearly link Mr.

Marek to the posting of the Video. [ 63 ] The amicus pointed out that further exculpatory information was not included in ITO #1 relating to the watermark Detective Camp stated “is often used to show the source of where content originated” (para 33). He admitted under cross-examination that he was unfamiliar with the use of watermarks, and that he had no information as to whether the watermark had been added before or after the Video was posted to the Website.

None of this uncertainty was reported in ITO #1. [ 64 ] Crown counsel submitted in response that there was sufficient linkage between the Video and the Website. S/Sgt Huot’s report, on which Detective Camp relied, indicated that the Video was viewable on the Website. A watermark for the Website was embedded inside the Video and the Website had available a narrative or commentary on the Video. The narrative was followed by the embedded Video Flash Player where users could view the video footage. [ 65 ] Crown counsel submitted that watermarking was relevant to the issue of publication of the Video on the Website.

While Detective Camp knew very little or nothing about the watermarking process, the fact that the Website label appeared on the Video would allow a permissible inference to be drawn that the Video was published by someone connected with the watermarked name. [ 66 ] I note that Detective Camp also deposed that he received information from S/Sgt. Huot of the RCMP that he logged onto the Website and there viewed the Video which, by that time, had been viewed 19,856 times, and that the RCMP had downloaded a copy of the Video directly from the Website. He added that Cst.

Gainor was able to tell him that the Video was once on the Website, which corroborated S/Sgt. Huot having viewed it there. [ 67 ] Detective Camp’s technological knowledge was limited, and he knew little to nothing about watermarking. However, the presence of the Website’s watermark on the Video was one piece of evidence, combined with information Detective Camp had received from S/Sgt. Huot and from Cst. Gainor along with the media interviews, which together provided sufficient linkage between Mr.

Marek, the Website, and the Video for the purpose of establishing reasonable and probable grounds for the seizure and search authorized by the first warrant, despite my excision of limited portions of ITO #1. Validity of ITO #2 Sourcing versus Uploading Video [ 68 ] Mr. Marek argued that ITO #2 (and ITO #3) contained false information that he “uploaded” the Video to BestGore.com (para 75 of ITO #2 and para 17 of ITO #3), and the exaggerated conclusory statement that “the entire website and its content constitutes an offence under s 163(1) CCC” (para 11). Nowhere in S/Sgt.

Huot’s report prepared at the request of Detective Camp was it stated that the Video was “uploaded” onto the Website. Instead, the report stated: “it appears as though the website www.bestgore.com sourced the video from the website.” The report also provided a lengthy URL linking to a particular video on the “imageshack.us” site. [ 69 ] Mr. Marek testified that there is a difference between sourcing or viewing a video from a website and loading it onto a website. When a video is uploaded to a website, the person that manages the website has control over the video.

If the video is uploaded to a different website, to which the website may “hot-link,” the content of the video can be shown on the website but the administrator of that website has no control over the video or its content. The website that hot- linked the video is at the mercy of whoever controls the website to which the video was originally uploaded. Mr.

Marek acknowledged, however, that it was possible that the Video could have started on the Website then been copied by someone onto the “imageshack.us” website. [ 70 ] Reading para 75 of ITO #2 carefully, the information it contains is not that the Video was “uploaded” but that using established procedures for the purpose of extracting information and data from computer systems and storage media, Detective Camp believed that evidence would be obtained that would establish that Mr. Marek uploaded the Video. This was one of the reasons he set out for seeking the search warrant.

I am not of the view that in setting out that purpose, Detective Camp misrepresented the circumstances linking the Video to the Website. The seizure and search of the 14 devices [ 71 ] The amicus and Mr. Marek argued ITO #2 lacked evidence to objectively establish the basis for Detective Camp’s reasonable and probable grounds to believe the items to be searched (the 14 items seized upon Mr. Marek’s entry into Canada at the Vancouver airport) would afford evidence of the commission of an offence. Mr.

Marek testified that only some of the devices seized could be used to store photos and videos, and that the cameras seized could not. He also testified that the two SIM cards that were seized did not have the capability of storing images, although he was not sure whether a SIM card can provide information about whom it belongs to. He did acknowledge that it could provide information about text messages sent and received, and possibly phone calls made

and received. He also acknowledged that there was no way from looking at the outside of a SIM card what it may contain. [ 72 ] Mr. Marek acknowledged that a video or a spreadsheet could be uploaded to an MP3 player. Detective Camp testified that one would not be able to store files on an MP3, but questioned whether a technical expert could possibly do so given the MP3 files are stored on some kind of hard drive. [ 73 ] Mr.

Marek noted that while Detective Camp did consult with a legal advisor before proceeding with the seizure and search of the 14 devices, he did not consult with a technological expert to confirm whether any of the devices should be excluded from seizure. [ 74 ] Many factual assertions contained in Mr. Marek’s Application, filed September 11, 2015, were not sworn to or formed part of his Affidavit filed in support. This obviously limits the Court’s ability to make findings where the appropriate evidentiary foundation has not been laid.

I will therefore limit my consideration of his factual observations to those contained in his Affidavit, his testimony and the voir dire exhibits. For example, Mr. Marek objected to the seizure of the Toshiba that he testified was purchased in approximately December of 2012, several months after the alleged posting of the Video. While Mr. Marek pointed out that Detective Camp acknowledged, at para 46 of ITO #2, that he read a post (entitled “Toshiba Sucks”) on the Website which referred to his Toshiba laptop, the post itself was not submitted in evidence. Mr.

Marek has not laid the evidentiary foundation for the Court to attribute knowledge of the date of purchase of the Toshiba laptop vis-à-vis the Website posting. As importantly, however, Mr. Marek acknowledged that information from one computer can be transferred to and stored on another computer. [ 75 ] Another example is the information provided by Mr.

Marek in his Application document as to the various uses of the devices seized, which was not included in the voir dire evidence and is therefore not evidence. [ 76 ] Detective Camp testified that the digital cameras were to be seized as possible storage devices for uploading imagery to the Website. His understanding was that digital cameras could connect to the Internet. His own digital cameras also had onboard memory storage by way of memory cards. He believed at the time of swearing ITO #2 that any storage device, including digital cameras, Mr.

Marek brought back to Canada might have videos or pictures for the Website. Storage devices could also include USB drives and memory cards. He also believed that digital cameras would be able to store without a memory card, if the camera had a small hard drive. The cameras were seized given his understanding that a camera with a storage memory card can be utilized to store videos, which can be loaded onto a computer, the Internet and a website. [ 77 ] Detective Camp confirmed he did not tell Officer Labreche of the CBSA what to seize and what not to seize.

He was aware that during the initial screening process before contacting him, Officer Labreche had gone into the laptop as there were some entries on the CBSA Data Bank in regards to a Mark Marek. [ 78 ] While it was later determined by Cst. Gainor that most of the devices seized did not further the investigation, he referred to the ability of SIM cards to provide, albeit indirectly, evidence relating to control and administration. He did note that one of the memory sticks (Exh. 9) contained spreadsheets, which may have related to the care and control of a website. The cameras were returned to Mr.

Marek when it was determined that they had no memory storage or offending videos on the memory cards. An MP3 player might have limited storage availability, but he found no offending material on the MP3 player seized. [ 79 ] The amicus noted that under cross-examination, Detective Camp admitted he had not included any information in ITO #2 as to the series of calls between himself and Officer Labreche, nor to the series of calls between himself and a legal advisor to the police.

The amicus also noted that paras 10 and 74 stated that the 14 items seized by the CBSA were used in the commission of the offence, however, under cross-examination, Detective Camp stated he did not know if some devices had been used in the commission of the offence, but that he thought they might have been. He acknowledged his “rudimentary” understanding of digital devices including cameras. Although he confirmed that he had consulted with technical members of the EPS when preparing the ITO, he did not consult with Cst. Gainor about the technical capabilities of the devices until after their seizure.

The amicus also submitted that Mr. Marek had a separate privacy right to each device, and there should have been grounds particular to each device to justify seizure in each case. Nor did ITO #2 describe in any detail the forensic techniques that would be used to examine the devices. [ 80 ] Crown counsel pointed out in response that s 487(1)(

c) does not require that the search of the “things” will afford evidence of the commission of an offence; rather, that they “will afford evidence with respect to the commission of an offence.” [ 81 ] While acknowledging that ITO #2 failed to include reference to a series of calls between Detective Camp and Officer Labreche, Crown counsel, relying on Araujo , submitted that the law does not require verbatim reporting of every stage of the investigation; the affidavit evidence is required to be “full and frank,” but it must also be “clear and concise.” The failure of ITO #2 to record the contents, times and length of each conversation with the CBSA officer was neither misleading nor careless. [ 82 ] Detective Camp set out in ITO #2 that he had contact with Officer Labreche which established what the devices were and the circumstances of their seizure.

I am of the view that failing to set out that his contact with the officer transpired over several calls added nothing of significance to the narrative, nor the fact that he was also checking his legal position. As Crown counsel noted, including reference to having had legal advice might have been viewed as an attempt to shore up the grounds with irrelevant information. [ 83 ] Crown counsel noted that Detective Camp did state at para 8 of ITO #2 that photos and videos can be taken and stored on electronic media and transferred via computer to the Internet.

This information, according to his cross-examination, also applied to the cameras, given that the authorities seized any device with possible storage capacity. Cst. Gainor confirmed that a memory card can store any electronic file fitting the card’s capacity, from photos to spreadsheets. It could not properly be determined without a warrant to search the cameras whether they contained a memory card.

Detective Camp testified that his own digital cameras had memory storage capacity and also could have memory cards inserted in them. [ 84 ] I do not find that in authorizing the seizure and search of the 14 devices, the second warrant was overbroad. While it was issued one day before Mr. Marek’s arrest on a single allegation relating to uploading the Video to the Website, ITO #2 was not limited to an investigation of one video only; it referred, at para 27, to having viewed the Website and 50 videos which he described as depicting “various manners of death or the aftermath of the death of versus individuals.”

[ 85 ] The circumstances here can also be distinguished from those in R v Perkins , 2013 ONSC 1807 , 279 CRR (2d) 224, where the police searched the accused’s car upon his arrest and seized all electronic devices in relation to their investigation of telecommunications theft. In that case, the officers could not explain any rationale for taking items beyond the laptop and external hard drive that could have been related to telecommunications theft, other than they were not aware of the nature of the devices.

Here there was some evidence as to the storage function of the devices seized beyond that of the laptop computer. [ 86 ] I find that, even with the excision of a portion of para 33 from ITO #2, there was sufficient evidence to provide the reasonable and probable grounds for issuing the warrant authorizing the search of the 14 devices. Validity of ITO #3 [ 87 ] The amicus noted that ITO #2 was attached as an exhibit to ITO #3. If the Court excises portions of ITO #2, then this excision should flow through to ITO #3. I agree that this is the case with respect to the excision of a portion of para 33 from ITO #2.

New information contained in ITO #3 in the form of statements of Mr. Marek to Detective Camp on July 16, 2013, prior to his arrest (para 14), and following his arrest (para 15), were subject to pre-trial voluntariness and s 10(

b) Charter rulings. The trial judge ruled that Mr. Marek’s statements to police were voluntary and that they were not obtained in violation of his Charter rights. [ 88 ] Having regard to the attachment of ITO #2 to ITO #3 and Mr. Marek’s statements to police summarized in ITO #3, there was sufficient evidence presented to the issuing justice to justify the seizure and search of the Samsung computer and memory cards found in the possession of Mr.

Marek on his arrest. [ 89 ] I also reject the argument that Detective Camp misled the authorizing justice by referring to memory cards on ITO #3 when Crown disclosure contains no information about the content of the three alleged memory cards, but rather information extracted from two seized SIM cards. These were not listed on ITO #3 or on the actual warrant. I am of the view that this mislabelling was not a deliberate error on the part Detective Camp which should vitiate the seizure and search of the SIM cards. In addition, as noted by Mr.

Marek himself, one cannot determine the contents of a SIM card from simply viewing its exterior. [ 90 ] For the reasons given, I find that even with the excision I have directed with respect to ITOs #1 and #2, the presumption of validity of each of the warrants was not displaced, and each warrant was supported by evidence collectively amounting to the requisite reasonable and probable grounds for their issuance. VI. The Reasonableness of the Searches [ 91 ] Cst. Gainor conducted the searches of the computers and devices seized. The following comment appears in the “Background”

section of his report: Upon the Edmonton Police Service finding the “1-Lunatic-1-Icepick” video hosted on the BestGore web site, additional similarly disturbing material depicting violence, human suffering and injured persons was observed. The material made available by the public website BestGore is believed to contravene section 163(1) (

a) of the Criminal Code of Canada . An investigation was started, with the file assigned to Homicide Section. [ 92 ] Cst. Gainor testified that he created the “Objectives”

section of his report not on the basis of the terms of the warrant (which he could not recall having read) but on the basis of discussions with Detective Camp. Those “Objectives” were (as noted in his report): 1. Search for indications of control or administration of the website http://www.bestgore.com . 2. Recover videos and photographs from the seized exhibits as investigators believe that material related to the BestGore website have been saved to the media storage devices and laptop. 3. Discover indications of how the BestGore material is uploaded to the web site. [ 93 ] Cst.

Gainor testified that to complete these “Objectives,” he had to conduct a broad search: This is a fairly wide search in this case [because] – objective one is search for any indication of control or administration. So in that case, you’d need to look for any kind of communication applications that would suggest access to the website. We’d also have to look at web history. So it’s quite a broad area of the computer we’d have to search through to find control or administration of a website.

I’ve [sic] also asked in point two to recover videos and photographs from exhibits which really precipitates a search across all of the exhibits for that, as well as the communications. [ 94 ] Cst. Gainor commenced the search by making an image of the entire contents of the computer hard drives.

He testified that within a subfolder labelled “Uploads” in the path titled “BG backups” folder on the Samsung computer, he located folders labelled 2008, 2009, 2010, 2011 and 2012, where he found graphic gore photographs including files labelled “1 Lunatic 1 Ice Pick.” He could not recall whether he sorted these files by date, and indicated that he conducted a cursory search of all of the files. [ 95 ] He noted that the two USB hard drives were encrypted. He was able to unlock the encrypted drives, and noticed a lot of space still left available.

Encryption allowed for a hidden container within the volume of data, which can carry a different password than the password for the entry into the USB drive.

However, he acknowledged there was no way to prove there was in this case an internal hidden volume. [ 96 ] When asked what he was looking for when examining the memory cards, he stated: “…looking for any video related to the 1 Ice Pick video on any of the media memory cards and hard drives.” He was also looking for “[a]ny other video or photograph that was similar in nature showing similar type of behaviours and anything relating to really [sic] management of the website itself.”

[ 97 ] He noted at page 12, para 9 of his report that he recovered “thousands of deleted photo and video file entries, containing descriptive and graphic file names. A list of the file names has been exported and is included with the electronic report.” He also noted, at para 10, having recovered video files from an email folder depicting “gore.” He added: “Note that many more gore video files were recovered from exhibit-1, and exhibit-15 [the two seized computers], but not included in the electronic report as the size of the report would become too large and unmanageable.” [ 98 ] Cst.

Gainor also used the tool “X Ways” which, as he put it, “grabs everything”; it is up to the user to determine what filters or limitations to put on the tool. Using the “X Ways” tool, he searched through all the user partitions, including user profiles, anything deleted and also, unallocated space. [ 99 ] He confirmed that computer data can be filtered on the basis of time. He stated that he tried to filter around the occurrence date in 2012 and focused in that area “just to save time.” [ 100 ] Under cross-examination by Mr. Marek, Cst.

Gainor confirmed he was aware of there being an obscenity charge, but not whether it specifically related to one video or the content of Mr. Marek’s website in its totality. [ 101 ] Cst. Gainor confirmed that included with his report were tens of thousands of emails, along with over 25,000 deleted emails. He noted 24,580 emails marked for deletion but not actually removed from the mailbox. He initially testified that he would have exported to the investigators these deleted messages within a date range, namely April 1, 2012 to June 10, 2013.

He based his selection on the original offence date then just picked a “random end date.” He later corrected his testimony, confirming that no date filter was applied to these emails as his report attached emails dating back to 2001. Although he initially testified that he had similarly date-filtered the thousands of emails in the inbox, after performing some further testing, he found that the entire mailbox had been exported to the investigators.

Some 16,000 emails were digitally available simply by “clicking down on the left side of the screen, and individual emails can be brought up.” [ 102 ] Using the Internet Evidence Finder [IEF], he was able to retrieve thousands of deleted photo and video file entries. He confirmed that he applied no restrictions on the information exported in his report to the investigators through his use of the IEF, but noted that the investigators could filter by date. However, there was no evidence to suggest they did so.

He acknowledged that by examining his report, the entire history of everything done on the Internet since 2004 was included with his report, including: - browser activity; - classified URLs; - Facebook pages; - Facebook URLs; - Firefox Bookmarks; - Firefox Cash Records; - Firefox Cookies; - Firefox Favicons; - Firefox Fashion Store Artifacts; - Google Drive; - Google Translate; - Internet Explorer; - In Private or In Recovery URLs; - Internet Explorer 10 Content; - Explorer 10 Cookies; - Internet Explorer Redirect Records; - Parsed Searched Queries; - Photos; - rebuilt webpages; - SkyDrive; - Skype accounts; - Skype calls; - chat messages;

- chat sync messages; - Skype contacts and file transfers; - Skype group chats; - social media URLs; - videos; - Web video fragments. [103] He agreed that this was a, “pretty complete picture of everything the person using the computer does on the Internet.” Heconfirmed that the IEF applied no filters to the data retrieved. When asked whether a filter can be activated at the outset by thetechnician such that there will be nothing exported beyond a certain timeframe, Cst. Gainor stated that an IEF search can be limited as tothe results that are shared.

He also confirmed that “X Ways” Forensics does provide temporal filtering from the onset for all artifacts.When exported, that temporarily limited information would be the only information accessible to the investigators. [104] Mr. Marek and the amicus submitted that the search was carried out in a highly intrusive manner into devices that wouldordinarily be considered private, pursuant to a warrant that contained no limiting protocols.

In Vu at para 22, Cromwell J observed that areasonable search will be “no more intrusive than is reasonably necessary to achieve its objectives … the requirement that the search beconducted reasonably limits potential abuse of the authorization to search.” The manner of the search can be reviewed for reasonablenessafter the fact (para 55).

While he rejected, at para 55, the use of search protocols as a general requirement for the issuance of warrants asit may be difficult to know beforehand where evidence will be located, this did not mean that once the police had the warrant, they “hadlicence to scour the devices indiscriminately. They were bound in their search, to adhere to the rule that the manner of the search must bereasonable”: Ibid at para 61. [105] The evidence of Mr. Marek, buttressed by the results of Cst. Gainor’s forensic search contained in his report, establishes thatthe computer and storage devices seized from Mr.

Marek contained personal and private information going back to 2001, consisting ofemails, personal financial and banking information, contact information of others, and travel photos. His personal computer alsocontained photos of a very personal nature showing Mr.

Marek in an intimate relationship with his partner, and other informationcontaining details of his social and personal life, his personal interests and tastes, his lifestyle and personal choices, the history ofwebsites he had visited and user names and passwords. [106] Dealing first with the initial imaging of the entire contents of the computer hard drive, Cst. Gainor testified that this protectedthe integrity of the original data.

I find that it was reasonable for him to do so, given his stated purpose of protecting and preserving theevidence: R v Jones, 2011 ONCA 632 at paras 43-44, 107 OR (3d) 241; R v Little, at para 164 (Ont Sup Ct). The timeframe of the searches [107] The amicus observed that the July 15, 2013 warrant arising from ITO #2 authorized a search at the CBSA offices at VancouverInternational Airport between 6 a.m. on July 16, 2013 and 11:00 p.m. on July 20, 2013. However, Cst.

Gainor did not begin his search ofthe devices seized until July 30, 2013 in his Edmonton office, and his examination of the devices continued until December 9, 2013, welloutside the timeframe prescribed in the warrant. Accordingly, the amicus submitted, the search was warrantless, and presumptively,unreasonable. [108] In Little, the warrant specified the timeframe within which the computer search was to be conducted. The search commencedtwo days after the search warrant had expired, even though the officer conducting the computer search received and read a copy of thewarrant the same morning it was obtained.

Fuerst J noted, at paras 161-62: I appreciate that the review of the contents of a computer can take days, weeks and even months to complete… It is within the ability ofthe applicant for a search warrant to specify in the Information to Obtain the time that will be needed to complete the search of acomputer, and to seek a warrant that is valid for that period. In this case, the applicant did not do so and the justice of the peace imposeda time limitation without the benefit of that information.

Nonetheless, the police were bound by the time frame specified by the justice ofthe peace. … The only authorization for the search was the warrant. Once it expired, the police were not authorized by law to search the computer’scontents. [109] Off-site data collection was found, however, to be permissible in R v Weir, 2001 ABCA 181 at para 19, 281 AR 333, where theCourt also noted that as long as the computer had been properly seized, the information could be extracted at a later date. The amicussubmitted that the Court in Weir did not have the benefit of the Supreme Court decisions in Morelli and Vu.

In Jones at paras 84-85, theCourt considered the application of this statement from Weir, and concluded that the law had advanced since then. The amicus submittedthat a search warrant authorizes both a seizure and a search and that the time frame set out in the warrant should apply to both.

Otherwisethe requirements of Form 5 warrants would become meaningless. [110] The amicus noted that neither of the more recent decisions of this Court in R v Karim, 2012 ABQB 470, 546 AR 57 or R vVillaroman, 2012 ABQB 630, 557 AR 1, rev’d on other grounds, 2015 ABCA 104, leave to appeal to SCC granted, [2015] SCCA No196, had the advantage of the reasoning in Vu as regards computer searches. He suggested that the more recent decisions in Jones andPerkins require that the warrant specify the time frame for the seizure and the search.

This was one of the breaches cited in Perkins as abasis for quashing the search warrant.

[111] The amicus noted that ITO #3 authorized a lengthy search period, from September 11, 2013 to December 11, 2013, and thatCst. Gainor’s search of the devices seized pursuant to the third warrant was completed within that timeframe.

This demonstrated that thepolice were aware at the time of the need to conduct searches within the time frame authorized by a warrant. [112] Crown counsel noted in response that ITO #2, at para 11, referred to “judicial authorization to continue the seizure andsubsequent search of the above noted materials will afford evidence.” Read in the context of the location of the 14 devices, theVancouver International Airport, the second warrant should not be read as requiring that the computer forensics be performed at thatairport or within five days.

The acquisition of the devices and their subsequent search by EPS members should be viewed in thesecircumstances as quite apart from the time limited authorization to seize the devices from CBSA custody. In any event, once the deviceswere seized and Mr. Marek was charged with the offences, the Criminal Code authorized their detention until the conclusion of the trial.Crown counsel also noted that once the mirror image was taken by Cst. Gainor, the devices themselves were not searched.

While timelimits make good sense when police are entering a dwelling house, computer devices will likely be retained until trial, if charges arise.Once the contents are copied, then the timeframe has little impact on an accused’s Charter rights. [113] Crown counsel likened the situation here to the seizure of a gun from a crime scene; police are not required to bring a portablemicroscope and firing range with them to the place of seizure in order to perform ballistics testing on the weapon.

The same reasoningapplies to the DNA analysis of items seized pursuant to a warrant. [114] Crown counsel noted that while Little required that the search as a whole be conducted within the timeframe set out in thewarrant, it recognized that the process could take months, would be conducted on an image of the actual device, and would involvelooking at a large number of files. Unlike the situation in Little, the devices here were not even in the custody of the police when thewarrant was sought.

In Little, as the devices were already in police custody, the time frame for the search had to be read as including theforensic examination. [115] Crown counsel noted that in R v Ballendine, 2011 BCCA 221, 271 CCC (3d) 418, the B.C.

Court of Appeal ruled that where asearch warrant authorizes the seizure of computers, a second warrant is not required for the subsequent forensic examination of thecomputer’s contents. [116] Crown counsel referred to R v Barwell, 2013 CarswellOnt 10608 (a decision also pre-dating Vu), wherein Justice Pacioccorejected the suggestion that the forensic search was limited to the timeframe set out in the warrant. [117] Crown counsel submitted that Vu did not expressly overrule Weir on time-limited searches. However, even if the warrant failson this point, given that Weir was the la

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