R. v. Guenter, 2023 BCPC 170

Citation: R. v. Guenter 2023 BCPC 170 Date: 20230719 File No: 107513-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ERIC DAVID GUENTER RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. CAMPBELL Counsel for the Crown: A. Blunt Counsel for the Defendant: S. Wright Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 19-20, 2023 Date of Judgment: July 19, 2023

Introduction [ 1 ] Is information that a person’s cloud storage account was used to upload child pornography sufficient to authorize a search warrant for the person’s home? [ 2 ] Eric David Guenter applies pursuant to sections 8 and 24 of the Charter of Rights and Freedoms to exclude evidence seized from the search of his residence and electronic devices. [ 3 ] After receiving a report that a Google Drive account associated to Mr. Guenter had been used to upload child pornography, the police identified Mr. Guenter’s residence and obtained a warrant to search his home for electronic devices.

The police executed the warrant on February 3, 2021 and seized a number of electronic devices. The police then obtained a warrant to search for data in the devices. Mr. Guenter is charged with possession of child pornography located on the electronic devices, contrary to

section 163.1(4) of the Criminal Code . [ 4 ] The applicant submits that the searches violated the right to be secure against unreasonable searches in s. 8 of the Charter . He submits that the information in the application for the search warrant did not establish reasonable grounds to believe that the search of his residence would afford evidence of the offence, as required by s. 487 of the Criminal Code . [ 5 ] The key issues in this application are: 1.

Was information that the applicant’s cloud storage account had been used in a child pornography offence sufficient to establish reasonable grounds to believe that an electronic device containing evidence would be located at the applicant’s residence? 2. If there was a breach of the applicant’s

section 8 rights, should the evidence be excluded pursuant to section 24(2) of the Charter ? Positions of the Parties [ 6 ] The applicant does not dispute that there were reasonable grounds to believe that an offence had been committed. The applicant submits that the searches infringed s. 8 of the Charter as the Information to Obtain (the “ITO”) did not set out reasonable and probable grounds to believe that evidence of the offence would be located at the named location. The applicant submits that the ITO did not establish a sufficient nexus between the offence and his residence.

The applicant seeks an order pursuant to s. 24(2) of the Charter excluding the evidence seized in the searches of his residence and electronic devices. [ 7 ] The Crown submits that the search warrant was properly issued as the ITO established reasonable grounds to believe that the search would afford evidence of the offence. The user name, email address and phone number for the Google Drive account used in the offence implicated Mr. Guenter. The Crown notes that the phone number associated to the account was confirmed as Mr. Guenter’s phone number before and after the offence.

The Crown acknowledges that the offence may have been committed in a place other than Mr. Guenter’s residence, but submits that there was a reasonable expectation that the electronic device used in the offence would be located at Mr. Guenter’s residence. [ 8 ] The Crown concedes that if it is found that there were insufficient grounds for the search of the residence, then the search warrant for the electronic devices would also infringe s. 8 of the Charter .

Legal Framework [ 9 ] A justice issuing a search warrant must be satisfied that there are reasonable grounds to believe that an offence was committed and that there is in a building, receptacle or place anything that will afford evidence of the offence: s. 487 , Criminal Code . [ 10 ] A search warrant is presumptively valid.

The onus is on the applicant to show, on a balance of probabilities, that there was a violation of the Charter . [ 11 ] The role of a trial judge reviewing the validity of a search warrant is to determine whether the material filed in support of the warrant, as amplified on review, could support issuance of the warrant. The issue is whether the totality of the circumstances demonstrate reasonable grounds to believe that an offence had been committed and that the search at the specified time and place would afford evidence of the offence: R. v. Morelli , 2010 SCC 8 at para. 40 ; R. v.

Le , 2014 BCCA 166 at para. 34 . [ 12 ] The “reasonable grounds to believe” threshold requires more than suspicion but less than proof beyond a reasonable doubt. Reasonable grounds is the point at which reasonable and credibly-based probability replaces suspicion. [ 13 ] The review of a search warrant is not a de novo hearing, and the reviewing judge does not substitute their own view for that of the issuing judge. The standard of review is deferential. The question is not whether the reviewing judge would have issued the warrant.

The question is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: R. v. Araujo , 2000 SCC 65 at para. 51 ; R. v. Vu, 2013 SCC 60 at para. 16 ; Morelli at para. 40 . The Application for the Search Warrant [ 14 ] The affiant Cst.

Brushett asserted in the ITO that there were reasonable grounds to believe that the offence of possession of child pornography had been committed, that electronic devices associated to the offence would be located at the applicant’s residence at [address], and that the search of the electronic items would afford evidence of the offence. [ 15 ] The affiant summarized the information provided by Google. In August and September 2020, Google reported to a U.S. law

enforcement agency that a Google Drive account had been used on August 29, 2020 to upload approximately 200 files of child pornography. Google provided the account information and the Internet Protocol address (“IP Address”) for the device that was used to upload the child pornography. The Google Drive account user was identified as Eric Guenter with an email address [email omitted for publishing].

The phone number associated to the Google Drive account was [phone number omitted for publishing], and had been verified by the account user approximately eight months prior to the offence. [ 16 ] Because the phone number was based in British Columbia, the investigation was forwarded to the British Columbia Integrated Child Exploitation Unit and subsequently to the Ridge Meadows RCMP. [ 17 ] The affiant viewed the digital files and confirmed that they included child pornography as defined in the Criminal Code . [ 18 ] The IP address for the device used to upload the child pornography was based in the United States.

Although the significance of the IP address was not explained in the ITO, it is well-established that IP addresses are relied upon by the police in similar investigations to identify places to be searched. An IP address is a numerical identifier assigned to electronic devices that connect to the internet. With an IP address, the police may apply for a production order requiring the internet service provider to disclose the subscriber’s information to the police. The subscriber’s information reveals the physical address associated to the device.

This information is typically used by the police to obtain a search warrant for the location believed to contain the electronic device under investigation. [ 19 ] In this case, the IP address used for the suspected child pornography uploads was identified as 209.58.142.155. The IP address connected to a company called “LeaseWeb USA” in the United States.

LeaseWeb USA provides a Virtual Private Network (“VPN”) service that may allow users to mask their true IP address. [ 20 ] Accordingly, the application for the search warrant in this case did not include information from the internet service provider about the subscriber’s information or the physical address linked to the device. Instead, the police identified Mr.

Guenter based on the user name, email address and phone number associated to the Google Drive account. [ 21 ] The affiant reported that the email address [email omitted for publishing] was associated to Eric David Guenter in a 2013 New Westminster police file. The affiant stated that the email address has not been changed since that time. [ 22 ] The defence applied for and was granted leave to cross-examine on this part of the ITO. In cross-examination, the affiant acknowledged that the email address was associated to Mr. Guenter in 2013, but that there was no further information about Mr.

Guenter using that email address since 2013. [ 23 ] The affiant also reported that the phone number [phone number omitted for publishing] was associated to Mr. Guenter based on information entered in 2007 in a police database. On October 20, 2020, the affiant confirmed with ICBC that [phone number omitted for publishing] was still listed as Mr. Guenter’s phone number. [ 24 ] The affiant identified Mr. Guenter’s residential address in October 2020 as [applicant’s address], based on his B.C. driver’s license and information in police databases. [ 25 ] On November 13, 2020, a police officer drove by Mr.

Guenter’s address and observed a vehicle registered to him at that address. Shortly before submitting the application for a search warrant on February 2, 2021, the police again drove by Mr. Guenter’s address and observed the same vehicle. [ 26 ] The affiant asserted that the search of [applicant’s address] would afford evidence of the offence. The email account and phone number of the Google Drive account used in the offence was linked to Mr. Guenter.

The affiant asserted that evidence of the offence would be found at the applicant’s address because electronic devices had been used to upload the suspected material, electronic devices store information for a “long period of time”, and files may be retrieved from electronic devices even if deleted by the user. [ 27 ] The affiant did not explain why he believed that the electronic device used in the offence would be located at the place searched. [ 28 ] In my view, the validity of the search warrant turns on whether the ITO established a reasonable probability that the electronic device used in the offence would be found at Mr.

Guenter’s residence. Did the ITO Establish Reasonable Grounds to Believe that an Electronic Device Containing Evidence of the Offence would be Located at the Applicant’s Residence? [ 29 ] There is no dispute that the ITO established reasonable grounds to believe that an offence had been committed. The information from Google established that a particular user had uploaded digital files of child pornography.

The police reviewed the material to confirm that it meets the definition of child pornography in the Criminal Code . [ 30 ] Although the uploading happened five to six months prior to the search warrant, there was a reliable basis to conclude that digital evidence could still be retrieved at the time of the search. The ITO established that computers are fastidious record-keepers, capable of retaining evidence for a long time. Digital evidence may be located long after the activity in question and even if the user attempts to delete it.

While the length of time that has passed is a factor in determining whether there are reasonable grounds for the search, the information in the ITO established that it was reasonable to believe that evidence of the offence would still exist on the device in question. [ 31 ] The strength of the ITO relies on the link between Mr. Guenter and the offence. The Google user account was in the name of Mr. Guenter, with a phone number and email address associated to Mr. Guenter. While the police did not have information that the email address was used by Mr.

Guenter around the time of the offence, the same email address had been associated to Mr. Guenter several years before the suspected offence. The police also confirmed that the phone number associated to the user account was Mr. Guenter’s phone number around the time of the offence.

[ 32 ] In

summary, there was reliable information that an offence had occurred, that the applicant’s Google Drive account had been used in the offence, and that digital evidence of the offence would still exist at the time of the search.

The key issue is whether the ITO set out reasonable grounds to believe that evidence of the offence would be found at the applicant’s residence at [address]. [ 33 ] I conclude that the information in the ITO did not establish grounds to believe that evidence related to the offence would be located at that place. [ 34 ] There was very little information to establish that evidence would be located at that place beyond the fact that it was Mr. Guenter’s residential address at the time of the search.

The ITO did not include any information that the offence was committed there, or that the electronic device used in the offence would be located there. Beyond the generalized assumption that a person keeps electronic devices at their home, there was no case-specific information to establish that Mr. Guenter used or stored electronic devices at his home. [ 35 ] There was no information in the ITO indicating where the offence was committed.

Based on the information in the ITO, the offence may have been committed at a different residence, a workplace or some other location. [ 36 ] For a valid search warrant, the ITO must establish a link between the evidence sought and the named location. The ITO in this case relies on the inference that the electronic device used in offence would be found at Mr. Guenter’s residence. The issuing justice may draw reasonable inferences from the information in the ITO.

The deferential standard in reviewing a search warrant means that the question is not whether the reviewing judge would draw the inference, but whether the issuing justice could reasonably have done so based on the ITO: Vu , at paras. 16-17 . However, in the absence of any information that the offence was committed at the location, that Mr.

Guenter used or stored electronic devices at that location, or any explanation as to why the affiant believed that electronic devices would be found at that location, the ITO was based on suspicion. [ 37 ] The ITO does not disclose reasonable grounds to believe that the evidence would be located at the residence. Because the search warrant should not have been issued, the subsequent searches infringed s. 8 of the Charter .

Should the Evidence be Excluded? [ 38 ] Evidence obtained through the violation of the applicant’s Charter rights must be excluded from the trial pursuant to s. 24(2) of the Charter if it is established that having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. [ 39 ] The purpose of s. 24(2) of the Charter is to preserve the reputation of the justice system. The inquiry focuses on the long-term impact of admitting the evidence on public confidence in the justice system, considering the circumstances surrounding the Charter infringement .

This turns on the factors set out in R. v. Grant , 2009 SCC 32 : 1. the seriousness of the Charter -infringing state conduct; 2. the impact of the breach on the Charter -protected interests of the accused; and 3. society’s interest in the adjudication of the case on its merits. The Seriousness of the Charter -infringing State Conduct [ 40 ] Charter -infringing state conduct ranges from minor and inadvertent infringements to negligence to wilful or reckless disregard for Charter rights: R. v. Harrison , 2009 SCC 34 at para. 34 .

At one end of the spectrum, admission of evidence obtained through minor violations of the Charter may not undermine public confidence in the justice system. The more serious the state conduct that resulted in the Charter breach, the greater the risk that admission of the evidence would impact the reputation of the justice system: Grant , at paras. 72-74 . [ 41 ] In this case, the police did not wilfully or recklessly disregard the requirements of the Criminal Code or the applicant’s Charter rights. They applied for and were granted the necessary judicial authorizations.

Although the ITO was found to be objectively insufficient on review, the police believed that they were acting pursuant to a valid search warrant. The conduct of the police cannot be considered egregious. [ 42 ] One part of the ITO was amplified in cross-examination in the voir dire . The affiant stated in the ITO that Mr. Guenter’s email address (the same address reported by Google) was entered in a police database in a 2013 police file and “has not changed”. In cross- examination, the affiant clarified that the police had no information about Mr. Guenter’s email address since 2013.

The use of imprecise wording in this part of the ITO does not appear to have been intentionally misleading. There is no issue with the remainder of the information in the ITO. [ 43 ] While the police did not act in bad faith, the search of Mr. Guenter’s home was conducted without reasonable grounds. It was based on mere suspicion that the evidence would be located at the place searched. There was no information before the issuing justice to support the issuance of a warrant for the named place. A search based on deficient grounds may be considered serious Charter - infringing state conduct: see R. v.

Voong , 2013 BCCA 527 at paras. 92 and 98 . [ 44 ] The Crown notes that the police did not have the IP address for the device in this case because a VPN service had been used, which had the effect of concealing the IP address. The Crown notes that this may impact the ability of the police to investigate and obtain search warrants. In my view, however, the search warrant must be reviewed on the basis of the information in the ITO, as amplified on review. If the police face investigative challenges in gathering the necessary grounds for a search warrant, this must be addressed at the investigative stage.

It does not justify a lesser standard for the issuance of a search warrant or the admission of evidence obtained in violation of the Charter . The Impact of the Breach on the Charter -protected Interests of the Accused

[45] This part of the inquiry focuses on the extent to which the breach impacted the applicant’s Charter rights. The impact of aCharter violation may range from fleeting or technical to profoundly intrusive. The more serious the impact on the Charter right, thegreater the risk that admitting the evidence would harm the reputation of the justice system: Grant, at para. 76. [46] The searches in this case involved the applicant’s home. It is well-established that the search of a person’s home is a severeinfringement of the right to privacy: R. v.

Silveira, (SCC), [1995] 2 SCR 297 at para. 148. [47] Following the search of the applicant’s home, the police obtained warrants to search a number of personal electronic devices.The search of computers and other electronic devices can expose intensely private personal information. The search of these devices is asevere intrusion into personal privacy: Morelli, at para. 105.

Society’s Interest in Adjudication on the Merits [48] At this stage of the inquiry, the court must consider the “truth-seeking function” of the trial: Grant, at para. 79; Vu, at para. 73. [49] The evidence at issue is data stored on electronic devices. The evidence is reliable. The charge of possessing child pornographyis a serious criminal charge implicating the safety of children. There is a strong societal interest in the trial proceeding to a resolution onthe merits. Further, the evidence at issue is critical to the prosecution.

Excluding the evidence would effectively bring an end to theprosecution. [50] The Crown has relied on authorities including R. v. Haire, [2021] B.C.J. No. 2612 and R. v. Mollon, [2017] B.C.J. No. 2554.Those decisions involved challenges to search warrants issued to investigate child pornography offences. On review, the warrants werefound to have been wrongly-authorized as the information before the issuing justice did not meet the reasonable grounds threshold. As inthis case, the police believed that they were acting pursuant to valid search warrants.

As in this case, the searches of the accused’s homeand computer devices were found to be serious infringements of personal privacy. As in this case, the evidence at issue was reliable andvital to the prosecution.

In both Haire and Mollon, the courts concluded that admission of the evidence would not bring theadministration of justice into disrepute. [51] While there are some similarities between the cases relied upon by the Crown and the application before the court, the s. 24(2)analysis is individualized, contextual and turns on the particular facts of the case. [52] In Haire, there was some information, including an IP address, connecting the offence to the residence. In Mollon, the deficiencyin the ITO related to the sufficiency of the description of the alleged child pornography.

However, there were grounds to believe that thematerial sought would be located at the place searched. [53] In this case, there was a conspicuous absence of any information linking the offence to the location searched. In my view, thecircumstances of the Charter infringement in this case are more aggravated than the cases relied upon by the Crown, as the searchwarrant was authorized without any information upon which it could be reasonably inferred that evidence of the offence would belocated at the named place.

Conclusion [54] I conclude that the long-term reputation of the justice system would be damaged by the admission of evidence obtained from thesearch of highly private places in the absence of sufficient information linking the offence to the place searched. Section 24(2) of theCharter requires the exclusion of the evidence from the trial. _____________________________ The Honourable Judge J. Campbell Provincial Court of British Columbia