R. v. Mollon, 2017 BCSC 2481

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mollon, 2017 BCSC 2481 Date: 20171018 Docket: 170536-3 Registry: Victoria Regina v. Andre Harold Mollon Before: The Honourable Mr. Justice Crossin Oral Ruling on Voir Dire #1 Counsel for the Crown: G. Merke Counsel for the Accused: D. McKay Place and Date of Trial/Hearing: Victoria, B.C. October 16, 2017 Place and Date of Judgment: Victoria, B.C.

October 18, 2017 Introduction [ 1 ] THE COURT: Andre Harold Mollon is charged that: Count 1, on or about April 10, 2016, at or near Langford in the Province of British Columbia, did transmit or make available child pornography contrary to s. 163.1(3) of the Criminal Code of Canada, R.S.C. 1985, c.

C-56 and, Count 2, between December 3, 2012, and July 6, 2016, at or near Langford in the Province of British Columbia, did possess child pornography contrary to s. 163.1(4) of the Criminal Code . [ 2 ] On July 6, 2016, the Royal Canadian Mounted Police (RCMP) executed a search warrant at 10-2811 Leigh Road, Langford, B.C.

The warrant was obtained pursuant to s. 487.1 of the Criminal Code , on the basis there were reasonable and probable grounds to believe the search would afford evidence of child pornography contained in computers and electronic devices located in the residence of the accused. [ 3 ] I am advised upon the search of the residence a forensic examination of a computer disclosed certain material. The Crown intends to tender the material seized by the police into evidence at trial. [ 4 ] The accused has brought a challenge to the validity of the search warrant that led to the seizure (“Ground #1”).

In addition, the accused challenges the manner in which the warrant was executed (“Ground #2”). Finally, the accused alleges the police arbitrarily detained and arrested the applicant upon attending his residence on July 6, 2016 (“Ground #3”). The challenges are brought under sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“the Charter” ). [ 5 ] The trial began October 16, 2017.

A voir dire was commenced the first day of trial in relation to Ground #1. [ 6 ] The voir dire consisted of submissions of counsel directed at the sufficiency of the warrant and the Information to Obtain (“the ITO”) in support of the warrant. The warrant and the ITO have been marked as exhibits. No other evidence was tendered. There was no application by the Crown to amplify the ITO in any way. There was no application by the accused to cross-examine the affiant who prepared the ITO.

The issue is cast as to whether the ITO meets the test for reasonable and probable grounds as required by s. 487.1 of the Criminal Code . The Context [ 7 ] There existed in May 2016 a website called Chatstep. The ITO discloses it is an Internet website that provides an online group chat service allowing users to create or join a room to express their thoughts, share images, files, and paste links instantly on a common topic. [ 8 ] On May 30, 2016, a user referenced as “kanuck4” uploaded a photo to the website.

Microsoft, on behalf of Chatstep, apparently came to the opinion the photo was suspected to be child pornography. Microsoft also determined that the Internet protocol (IP) address

used to upload the photo was 24.108.86.235. This information was conveyed to the National Centre for Missing and Exploited Children(“NCMEC”). [9] NCMEC is an American clearinghouse that gathers information about missing and sexually exploited children for lawenforcement. The photo and IP address were ultimately forwarded to the B.C. Integrated Child Exploitation Unit (“BCICE”). This is theB.C. organization that receives information from organizations like NCMEC. It offers investigative support and other services in relationto the child pornography industry. [10] Nicole Mize (“Ms.

Mize”) is described in the ITO as a civilian member of BCICE. Ms. Mize reviewed this same informationand determined that the identified IP address was geolocated to Victoria, B.C., and that Shaw Communications was the Internet serviceprovider (ISP). [11] On June 10, 2016, Ms. Mize forwarded this information to Sergeant Sandhu of the West Shore RCMP. In addition, Ms. Mizeforwarded to Sergeant Sandhu a DVD that contained the subject photo. Ms.

Mize offered her opinion to Sergeant Sandhu that the photowas child pornography as defined by the Criminal Code of Canada. [12] On June 13, 2016, Sergeant Sandhu viewed the photo and described it as follows: i. The photo showed two young boys naked laying on a bed. ii. One boy is on his back while the second boy is sitting on top of him naked, sitting in the penis area. iii. The boy on top has his penis resting on the bottom boys stomach area. iv. The boys appear to be between 7 and 10 years old. [13] On June 21, 2016, the affiant, Constable Hill, obtained a production order for Shaw Communications.

The information obtainedrevealed the IP address in issue was associated to the account of the accused at 10-2811 Leigh Road, Victoria, B.C. [14] These are the salient circumstances leading to the issuance of the warrant on July 5, 2016. Legal Principles [15] The standard of review a court must apply on assessing the validity of a warrant under s. 8 of the Charter is well established inthe jurisprudence. It is not an exercise of undertaking a de novo hearing.

If the justice of the peace could reasonably have authorized theissuance of the warrant based on the record before him or her, as amplified or otherwise, the court will not interfere; R. v. Morelli, 2010SCC 8 , [2010] 1 S.C.R. 253, at para. 40: In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably bebelieved on the basis of which the authorization could have issued” [see] (R. v.

Araujo, 2000 SCC 65, at para. 54 … The question is notwhether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence topermit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence ofthat offence would be found at the specified time and place. [16] Reasonable and probable grounds to issue the warrant will exist and only exist if there is an objective basis for the belief whichis based on compelling and credible information; Mugesera v.

Canada, 2005 SCC 40, at page 114. [17] The Crown in its helpful written submissions asserts the reasonable-ground standard is essentially that of a reasonable orcredibly-based probability. While more than mere suspicion is required, the threshold is less than the civil standard of proof. [18] I agree with this submission. It is a proposition well supported in the jurisprudence: see R. v. Wilson, 2011 BCCA 252, atpara. 52.

Analysis [19] The warrant declares that there are reasonable and probable grounds for believing that certain electronic devices listed inAppendix A to the warrant are to be found in the dwelling house of Andre Mollon at 10-2811 Leigh Road, Langford, B.C., and thoseitems will provide evidence of certain offences.

No issue was taken by the accused as to the sufficiency of the description of theelectronic items to be searched. [20] The offences referenced on the face of the warrant are: On May 30, 2016, a user of a computer located at 10-2811 Leigh Road, Langford, British Columbia, did commit the offences ofPossession of Child Pornography contrary to

Section 163.1(4) of the Criminal Code and Make Available Child Pornography contrary toSection 163.1(3) of the Criminal Code. [21] The ITO has attached the affidavit of Constable Hill. The affidavit consists of 18 pages and it contains the information to bereviewed and assessed by the justice of the peace for the purpose of issuing the warrant. [22] The submission of the accused is that on its face the ITO does not disclose reasonable and probable grounds to believe the userof a computer at this address possessed or made available child pornography. The accused says this is particularly so if certain

information is excised due to the fact the information is erroneous, unreliable, irrelevant, and/or unfairly prejudicial. [ 23 ] The Crown acknowledges there is, in fact, information that ought to be excised from the ITO. The Crown submits, however, that even upon removing the offending material, there remain sufficient grounds for the warrant to issue. [ 24 ] The affidavit contains a heading: “Search Warrant Justification.” What follows from this heading are paras. 35, 36, and 37 summarizing the grounds for seeking the warrant. [ 25 ] These paragraphs will serve as the overview for the purpose of analysis. [ 26 ] Paragraph 35(

d) of the affidavit states as follows: On June 7 th , 2016, BC ICE Civilian Member Mize reviewed the suspected Child Pornography and determined it was Child Pornography as defined by the Criminal Code of Canada . [ 27 ] This statement is also recited in para. 18 of the affidavit. It is repeated again in para. 24(g). [ 28 ] The Crown and defence submit this information is to be excised. I agree. [ 29 ] The statement essentially purports to be an opinion. There is no evidence that suggests Ms. Mize is in the position to offer such an opinion much less establish an expertise to anchor such an opinion.

There is simply no evidentiary basis to enable a justice of the peace to determine that this statement is sufficiently credible or reliable to form the basis for a finding of reasonable and probable grounds. [ 30 ] Paragraph 35(

e) contains Sergeant Sandhu’s description of the photo. [ 31 ] The paragraph begins by referencing Sergeant Sandhu has viewed the “child pornography” image. [ 32 ] The use of the phrase “child pornography” in this context is repeated in paras. 23(a), 23(c), and 23(

d) of the affidavit. [ 33 ] This phrase is to be excised. It is irrelevant and prejudicial. It is not a characterization that is appropriate to form the basis for a finding of reasonable and probable grounds. The Crown and defence agree. [ 34 ] The ensuing description of the photo by Sergeant Sandhu in para. 35(

e) has been previously referenced, but I will do so again for convenience: i. Two young boys naked laying on a bed; ii. One boy is on his back while the second boy is sitting on top of him naked, sitting in the penis area; iii. The boy on top has his penis resting on the bottom boys stomach area; iv. The boys appear to be between 7 and 10 years old. [ 35 ] The definition of child pornography relevant to this case is found at s. 163.1 of the Criminal Code . It reads as follows: In this section, child pornography means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years … [ 36 ] I am advised the justice of the peace was not shown the photo. The accused submits that the description is not reasonably capable of supporting a conclusion or an inference that the photo depicts child pornography.

The Crown submits that the description is rationally capable of allowing for an inference that the photo depicts child pornography. It is, the Crown says, an inference that is reasonable and available. [ 37 ] I have concluded there is not a sufficient evidentiary basis to enable a justice of the peace to draw a rational or reasonable inference that the photo contains child pornography. [ 38 ] As stated, the definition of child pornography in the context of the case at bar is the showing of the subjects “engaging in explicit sexual activity or depicted as engaged in explicit sexual activity”.

I conclude the description is not reasonably capable of supporting that inference.

To conclude otherwise would require speculation and undue reliance on imagination. [ 39 ] In addition, child pornography is defined “where the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region.” [ 40 ] The evidence does not provide a sufficient evidentiary foundation or context that would allow for a reasonable conclusion that the dominant characteristic of the photo is the depiction for a sexual purpose of a sexual organ or anal region. [ 41 ] The photo depicts the exposed penis of one of the boys as described by Sergeant Sandhu.

I will not repeat the description, but in

my view, a reasonable reader of the description, viewing it objectively, and striving for context, could not reasonably conclude that thedominant characteristic is the depiction of the child’s sexual organ for a sexual purpose. The description is vague and is not capable ofthe inference that captures the clear requirements of s. 163.1(1)(a)(ii). [42] The next area of concern is contained in para. 37(g). [43] The accused says this paragraph should be heavily excised. The accused submits this paragraph summarizes circumstances thatunfairly raises suspicion concerning the conduct of Mr. Mollon. The Crown agrees. [44] The phrase in para. 37(

g) that reads, “… in response to inappropriate pictures, pictures of what appear to be naked children, thathe posted on his sliding glass door” shall be excised and, further, the phrase, “… but did not believe they were sexual in nature” shallalso be excised. These phrases and additional circumstances are also referenced in para. 29(e)(

i) and (ii). It follows this information willbe excised from para. 29 as well. [45] Consequently, para. 29(e)(

i) and (ii) will read as follows: (e) … I read the files and learned the following: (

i) On February 13th, 2014, West Shore RCMP received a report of a possible Child Pornography pictures at 10-2811 Leigh Road.… Police attended and observed numerous photos on the windows of military people and cartoons. … Police spoke with Andre Mollon,who said he likes putting pictures on his windows and that it was his right. (ii) On April 13th, 2014, West Shore RCMP received a report ...

The complainant reported that the occupant of 10-2811 Leigh Road,Andre Mollon, had posted some photos on his sliding glass door … Police attended and noted that Andre Mollon had a collage ofdifferent types of … photos posted all over the sliding glass window. … Police spoke with Andre Mollon who reluctantly took down thephoto. [46] The accused also seeks to excise para. 29(d). This paragraph reads as follows: He has 33 PRIME entries with the most recent file being on June 16th, 2014. [47] Counsel for Mr.

Mollon submits this statement is prejudicial because it leaves the reader with the impression he has engaged inbad conduct. I disagree. The ITO discloses the accused has no criminal record. I am not persuaded the justice of the peace would draw aninappropriate or unfair inference from reading this paragraph. [48] These are my findings and conclusions as to what must be excised from the ITO.

The question must now be asked; does theinformation remaining in the ITO provide an objective basis for believing a user of a computer located at 10-2811 Leigh Roadpossessed, transmitted, or made available child pornography on May 30, 2016. In my view, the answer is no. [49] The language that frames the standard of proof in these matters has been recited in many cases. In R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, at 1166, Wilson J. stated: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly.

Iagree with Martin, J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or“prima facie case”. The phrase “reasonable belief” also approximates the requisite standard. Cited with approval in R. v. Law, 2002 BCCA 594 , 171 C.C.C. (3d) 219. [50] The whole of the evidence must be assessed.

In viewing the record on a practical, non-technical, and common sense basis, itcannot be said that the totality of the circumstances demonstrate reasonable and probable grounds for the belief the accused hadcommitted the stated offences. [51] What the ITO demonstrates, excising the information addressed here, is a suspicion that the user had uploaded a pornographicimage. I am not satisfied there was reliable evidence before the justice that might reasonably be believed on the basis of which thewarrant could have issued in this matter.

The evidence and inferences might trigger a suspicion, but as a matter of law suspicion cannottake the place of reasonable and probable grounds. [52] The warrant obtained on July 5, 2016, for a search of 10-2811 Leigh Road could not properly have issued because the ITO didnot meet the test for reasonable grounds as required by s. 487.1 of the Criminal Code of Canada. The warrant must be set aside. Thesearch of 10-2811 Leigh Road is to be treated as a warrantless search and is presumptively unreasonable in violation of s. 8 of theCharter. “The Honourable Mr. Justice Crossin”