R. v. Hemington, 2021 ONCJ 323

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Hemington , 2021 ONCJ 323 DATE: June 8, 2021 COURT FILE No: 19-1658 O N T A R I O C O U R T OF J U S T I C E B E T W E N : HER MAJESTY THE QUEEN -AND- TERRY HEMINGTON

\ \ Before Justice Michael G. March Charter Application heard on May 14, 2021 Ruling on Charter released on June 8, 2021 Caitlin Downing…………………...…………….………………………Counsel for the Crown John Pepper .……………………………………………………Counsel for Terry Hemington March, M.G., J. : Introduction : 1 . Terry Hemington (“Hemington”) stands charged that on or about December 14, 2018, he did:

a) possess child pornography contrary to

section 163.1(4) of the Criminal Code (the “ Code ”), and

b) make available child pornography contrary to

section 163.1(3) of the Code . 2 . On May 14, 2021, Hemington through his counsel brought an application under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “ Charter ’’) seeking an Order confirming that:

a) a Production Order, a Residence Search Warrant and a Cell Phone Search Warrant were issued without facially, sufficient grounds,

b) searches carried out pursuant to the above Order and Warrants were unfounded and unreasonable,

c) alternatively, the evidence obtained from an unlawfully issued Production Order and the Search Warrants be excluded from subsequent Informations to Obtain (“ITO’s”), and those ITO’s thereafter be found insufficient to support the issuance of a fourth and final General Warrant (“Dropbox Warrant”), and

d) the evidence obtained by police through searches conducted under authority of the Order and Warrants be excluded pursuant to section 24(2) of the Charter . 3 . No evidence was called at the hearing of the Charter application. Crown and defence counsel agreed that the Court could be presented with the documents in question. Counsel submissions were then made on whether the ITO’s afforded or lacked evidence to demonstrate reasonable grounds for believing an offence had been committed, and thus whether the Production Order and Warrants ought validly to have issued upon review by a justice. 4 .

Essentially, the ITO sworn in support of the Production Order was key. Without it, the police could never have determined Hemington’s identity, nor his address. His residence would not have been searched. His devices would not have been forensically examined by police. The discovery of child pornography contained in them and in his Dropbox account would not have been made. Background Facts :

5 . Detective Constable Eric Pinkerton (“Pinkerton”) swore to and relied on the following facts in his ITO dated March 18, 2019 in seeking the impugned Production Order. 6 .

Pinkerton stated that KIK Interactive Inc. (“KIK”), a company which operates a freeware instant messaging mobile app available free of charge to users of iOS and Android operating systems, notified the National Child Exploitation Coordination Centre (“NCECC”) that on December 14, 2018, an unknown person with user id “mustang 30224”, and with an IP address of 70.53.88.136, uploaded a single image of what KIK considered to be child pornography. 7 . On March 14, 2019, Pinkerton viewed the image and made the following observations:

a) the person depicted was a fully nude female approximately 9 to 12 years of age,

b) she was kneeling facing slightly away from the camera,

c) her left arm was extended upwards,

d) her left hand was placed behind her head,

e) her right hand was on her stomach, and

f) in the top left and lower right borders of the image were water markings captioned with the words, “Lolita’s Art”. 8 . Pinkerton went on to describe “Lolita” as a term commonly associated to child pornography investigations. 9 . He asserted that the image clearly met the definition of child pornography set out in the Code . 10 . He explained that he has been employed by the Ontario Provincial Police since August 27, 2007.

He indicated that he has been assigned to the Child Sexual Exploitation Unit (“CSEU”), and that his responsibilities include the investigation of child exploitation offences including possession, creation and distribution of child pornography. 11 . Pinkerton did not specifically swear how long he was with the CSEU. 12 . He added that he received training in general investigative techniques, Internet child exploitation investigations, computer forensic examination, Internet evidence analysis and peer to peer communications.

He did not detail for what length of time he received his training, nor did he elaborate on course content. 13 . He stated nevertheless that his belief on reasonable grounds that an offence under the Code had been committed was based on his experience and training. 14 . He appreciated that in light of the ‘ ex parte ’ nature of the application for the Production Order, he was obliged to present full, frank and fair disclosure of the material made available to him. However, he did not include every single detail of his investigation leading up to the application for the Production Order. 15 .

He knew that to upload or send an image over the KIK app, a person would have previously saved the file on his or her electronic device, or would have actively searched the Internet and selected the file to upload. 16 . Pinkerton asserted such an overt act demonstrated that the person had knowledge of and was in possession of child pornography when he or she chose to upload the file to the KIK app. 17 .

In setting out his basis for belief that the documents/data requested from the Internet service provider of the person who uploaded the image would identify who the person was, Pinkerton related that, based on his training and experience, he knew it was a common business practice for the provider to preserve basic subscriber information associated to IP addresses. The information often included the name, address and telephone number of the person to whom the IP address was assigned. 18 .

Pinkerton conceded that there may be multiple users of the IP account, but the person in whose name the account was registered would provide a starting point for identifying the suspect who uploaded the image. 19 . Pinkerton explained that the name and physical address of the IP account holder would allow him to draft an ITO for a search warrant. That warrant would then permit him to enter the residence where the image was uploaded in order to locate physical evidence of the offences of possessing and making available child pornography. 20 .

Through submission of a jurisdictional request to ISP Bell Canada, Pinkerton learned that the IP address 70.53.88.136 belonged to a customer of Bell Canada at the time the image was uploaded to the KIK app. The Events Following the Granting of the Production Order: 21 . Pinkerton received the Production Order he was seeking on March 21, 2019. He served the Order on Bell Canada on March 21, 2019. Based on information received from Bell Canada, Pinkerton in turn obtained a Residence Search Warrant for […] Rd., Petawawa, ON on July 18, 2019. 22 .

On July 22, 2019, police searched that residence in Petawawa and seized cell phones and computers belonging to Hemington.

23. On November 20, 2019, based on an examination of the devices seized from the residence, Pinkerton arrested Hemington andseized a cell phone from him incident to arrest. 24. On November 22, 2019, Pinkerton obtained a warrant to search the cell phone, which was granted. 25. From information obtained through the use of the Production Order, the Residence Search Warrant, the Cell Phone Warrant andthe ITO’s used for obtaining the Order and the Warrants, police were able to obtain on January 12, 2021 a “Dropbox Warrant” for acloud-based storage repository associated to Hemington. 26.

The Dropbox Warrant was executed on January 18, 2021 and led to the discovery of child pornography. Issues: 27. The Charter application brought by Hemington’s counsel raises the following issues:

a) What is the test for the issuance of a Production Order?

b) Has the test been met? In other words, does the ITO sworn in support of the issuance of the Production Order, the execution ofwhich provided essential information for the granting of subsequent Warrants sought by Pinkerton, set out reasonable grounds forbelieving an offence under

section 163.1(1)(

a) of the Code had been committed?

c) If the test has not been met, were Hemington’s rights under

section 8 of the Charter violated? The Law: 28. Crown and defence counsel provided me with copious authorities to guide my decision. I have referenced below only thosementioned and emphasized by counsel in their oral submissions. The Scope of the Reviewing Court 29. In R. v. Morelli, 2010 SCC 8 at paragraph 41, Fish J., for a four member majority of a seven member panel of the Supreme Courtof Canada, addressed what the proper ambit of the reviewing court is when the sufficiency of the reasonable grounds set out in animpugned ITO are challenged under

section 8 of the Charter. Fish J. wrote: The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather,“the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). 30. In R. v. Bui, (2014) 2014 ONSC 8 , O.J. No. 16 (S.C.J.), Goodman J. provided the following

summary of legal principlesto be applied by reviewing courts as follows: Legal principles [44]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [45] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. Inthe event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness. As there was a judiciallyauthorized warrant, it is trite law that the onus rests on the applicants to establish a breach of their Charter rights. [46] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Mr.

Justice Sopinka inR. v. Garofoli, (SCC), [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161 (S.C.C.) at 188:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, nondisclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [47] It is clear that on a s. 8 Charter application, the court reviewing a search warrant ITO does not stand in place of the justice of thepeace who issued the warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of whichthe authorization could have been issued.

The properly circumscribed limits of a review were also summarized by the Court of Appeal inR. v. Mahmood, 2011 ONCA 693, at para. 99. [48] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v.Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32). (2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors oracts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency ofthe evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135: The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of thedocument, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, acommon sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question:R. v. Grant (1999), (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No.168.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity ofcounsel”: Re Lubell and the Queen (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006),2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d)357 (Ont. Ct. Gen. Div.), at p. 364;

(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The questionremains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITOaffiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient,and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; [49] In the context of a search warrant ITO, the overarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” thoughthey must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418 , 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, isa fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of

reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R v. Philpott, [2002]O.J. No. 4872, (Sup. Ct.) at paras. 85-87.

(3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to beconsidered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as hethen was) in R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.).

(4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITOsupporting the request for a search warrant: R. v. Nguyen (2011), at para. 48; R. v. N.N.M. (2007), (ON SC), 223C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.

(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds ofbelief. This principle was described at para. 68(6) of the Cunsolo case in these terms: Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007ONCA 10 , [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.C.A.) at 501;

(6) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), atpara. 20, 27; R. v. Sanchez (2004), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370. [50] There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the validity of a searchwarrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed.

A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure tomention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid. 31. In R. v. Bullen, 2016 ONSC 7684, Ray J. held: [17] The RPG standard is triggered “where credibility-based probability replaces suspicion”.

It anticipates “a practical, non-technicaland common-sense probability as to the existence of the facts and inferences asserted”, and is to be applied in the totality of thecircumstances considering facts that assist the police in forming the requisite grounds, and facts that detract from reasonableness of thegrounds for issuance. Mere suspicion, conjecture, hypothesis or ‘fishing expeditions’ fall short of the minimally acceptable standardfrom both a common law and constitutional perspective. 32.

Further, His Honour went on to explain in Bullen: [19] The guiding principles for the reviewing judge in conducting an analysis of the ITO include the following: f. Unsourced narrative or conclusory statements are of no assistance and must be given little or no weight. h. Reliance on information from confidential informants or outside sources carries with it the obligation to equip the authorizing justiceto evaluate the nature and quality of the tip. The entire criminal record should be made available to the authorizing judge, as should thedisclosure of any outstanding charges.

A conclusory statement that the source is credible is insufficient. An important indicia of thesource’s reliability is whether previously disclosed information has led to convictions (as opposed to charges being laid). Where thesource of the informant’s information in the ITO is not disclosed, the information must be treated as rumour or gossip, and given little tono weight in its evaluation. The risk of false allegations is particularly significant when the tipster is shielded by an absolute andimpenetrable anonymity.

This requires scrutiny to ensure that widely available detail is not assumed to mean the tipster’s evidence iscompelling. 33. More recently in R. v. Wissink, 2018 ONSC 6787, Leach J. reminded reviewing jurists at para. 18 (p. 15): • It is also important to appreciate that search warrants are statutorily-authorized investigative aides typically issued before any

criminal proceedings have been commenced, and that the ITO affidavits sworn to obtain them almost invariably are drafted by policeofficers, often operating under tight time constraints and without the assistance of any legal advice. Courts accordingly have recognizedthat it is unrealistic and inappropriate to measure the quality of drafting of such documents by the standard of legal precision that mightbe expected of counsel in pre-trial or trial proceedings. In short, “reasonable latitude” should be accorded to the drafter of an ITO inconsidering the precision of the language that was used in the document.

Few search warrant applications are perfect. 34. Over a quarter of a century ago in R. v. Sanchez (ON SC), [1994] O.J. No. 2260, the Court of Appeal forOntario enunciated the criteria to be applied in deciding the question of whether a search warrant could issue. It is instructive to thisday. At para. 20, the Court stated: In addition, in considering the facial validity of search warrants and search warrant informations, there exists a judicially created subsetof review guidelines, including the following: 1.

Quality of drafting Search warrants are statutorily authorized investigative aids issued most frequently before criminal proceedings have been instituted.Almost invariably a peace officer prepares the search warrant and information without the benefit of legal advice. The specificity andlegal precision of drafting expected of pleadings at the trial stage is not the measure of quality required in a search warrant information:Times Square Book Store v. R., supra, at p. 512, per Cory J.A. (as he then was); Lubell v. R. (1973), (ON SC), 11C.C.C. (2d) 188 (Ont. H.C.J.) at pp. 190-91, per Zuber J.; Illinois v.

Gates, 462 U.S. 213 (1983) at pp. 235-36, per Rehnquist J. (as hethen was); United States v. Ventresca, 380 U.S. 102 (1965) at pp. 108-09, per Goldberg J. 2. Review of the whole document The appropriate approach for judicial review of a search warrant information is scrutiny of the whole of the document, not a limitedfocus upon an isolated passage or paragraph. Reference to all data within the four corners of the information provides the fair andreasonable context for the assertions in question: R. v.

Molinaro, Ontario Supreme Court, June 23, 1978, at p. 2, per Cory J.; R. v.Bestline, Ontario Supreme Court, January 5, 1978 at p. 3, per Krever J. (as he then was); R. v. Thames Valley, Ontario Supreme Court,May 8, 1980 at p. 1, per Reid J.; United States v. Ventresca, supra, at p. 109, per Goldberg J. 3.

Drawing reasonable inferences A search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds forbelieving that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question willbe discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is notobliged to underline the obvious: Lubell v. R., supra, at p. 190, per Zuber J.; United States v. Wuagneux, 603 F. 2d 1343 (11th Cir.,1982) at pp. 1349-50, per Ingraham J.

In this regard, some deference should be paid to the ability of a trained peace officer to drawinferences and make deductions which might well elude an untrained person: United States v. Cortez, 449 U.S. 411 (1981) at pp. 417-18,per Burger C.J. (cited with apparent approval in R. v. Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.) at pp. 301-02, 79 C.C.C. (3d) 482 at p. 501, per Doherty J.A. Probable cause does not arise however from purely conclusory narrative.

A searchwarrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of theinvestigation: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459 at p.483, 67 C.C.C. (3d) 544 at p. 562, per Cory J. Possession of Child Pornography 35. In R. v. Sharpe, 2001 SCC 2, the Supreme Court of Canada discussed Parliament’s intentions in defining as it did “childpornography” in s. 163.1(1)(

a) of the Code as follows: 2. “Depicted” 42

Section 163.1(1)(a)(

i) brings within the definition of child pornography a visual representation of a person “who is or is depictedas being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity” (emphasis added). Does“depicted” mean: (

a) intended by the maker to depict; (

b) perceived by the possessor as depicting; or (

c) seen as being depicted by areasonable observer?

43 The first and second

interpretations are inconsistent with Parliament’s objective of preventing harm to children through sexual abuse. The danger associated with the representation does not depend on what was in the mind of the maker or the possessor, but in the capacity of the representation to be used for purposes like seduction. It is the meaning which is conveyed by the material which is critical, not necessarily the meaning that the author intended to convey. Moreover, it would be virtually impossible to prove what was in the mind of the producer or possessor.

On the second alternative, the same material could be child pornography in the possession of one person and innocent material in the hands of another. Yet the statute makes it an offence for anyone to possess such material, not just those who see it as depicting children. The only workable approach is to read “depicted” in the sense of what would be conveyed to a reasonable observer. The test must be objective, based on the depiction rather than what was in the mind of the author or possessor.

The question is this: would a reasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity? 3. “ Explicit Sexual Activity ” 44

Section 163.1(1) (a)(

i) catches visual representations of “explicit sexual activity”. Sexual activity spans a large spectrum, ranging from the flirtatious glance at one end, through touching of body parts incidentally related to sex, like hair, lips and breasts, to sexual intercourse and touching of the genitals and the anal region. The question is where on this spectrum Parliament intended to place the boundary between material that may be lawfully possessed and material that may not be lawfully possessed.

A number of indications suggest that Parliament intended to draw the line at the extreme end of the spectrum concerned with depictions of intimate sexual activity represented in a graphic and unambiguous manner. 45 The first indication is Parliament’s use of the word “explicit” to describe the activity depicted. Parliament could have simply referred to “sexual activity”. Instead, it chose “explicit sexual activity”. “Explicit” must be given meaning. According to the Canadian Oxford Dictionary (1998), “explicit” in the context of sexual acts means “describing or representing nudity or intimate sexual activity”.

Similarly, “explicit” according to the New Oxford Dictionary of English (1998) means “describing or representing sexual activity in a graphic fashion”. This suggests that the law catches only depictions of sexual intercourse and other non-trivial sexual acts. 46 This restricted meaning is supported by the fact that in creating other offences, like sexual assault, Parliament uses the word “sexual” without any modifiers. To constitute sexual assault, the sexual aspect of the contact must be clear. The addition of the modifier “explicit” in s. 163.1 suggests that this at least is required. 47 A restrained

interpretation of “explicit sexual activity” is also supported by reading s. 163.1(1) (a)(

i) and s. 163.1(1) (a)(ii) together. They are designed to cover two types of depiction: (

i) the depiction of explicit sexual activity; and (ii) the static depiction of the sexual organs or anal regions of children. Subparagraph (ii) clearly indicates that Parliament’s concern was with visual representations near the extreme end of the spectrum. While it is possible in the abstract to argue that Parliament intended a much broader sweep for subpara. (

i) than for (ii), it seems more likely that Parliament was seeking to catch in subpara. (

i) the activity-related counterpart to subpara. (ii). 48 Finally, Parliament’s goal of preventing harm to children related to child pornography supports a restrained

interpretation of “explicit sexual activity”. The evidence suggests that harm to children produced by child pornography arises from depictions of explicit sexual acts with children at the extreme end of the spectrum. The literature on harm focuses mainly on depictions of sexual activity involving nudity and portrayal of the sexual organs and anal region.

It is reasonable to conclude that this sort of material was uppermost in Parliament’s mind when it adopted this law. 49 I conclude that “explicit sexual activity” refers to acts which viewed objectively fall at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity.

Certainly, a photo of teenagers kissing at summer camp will not be caught. At its furthest reach, the

section might catch a video of a caress of an adolescent girl’s naked breast, but only if the activity is graphically depicted and unmistakably sexual. (For a discussion of such concerns see B. Blugerman and L. May, “The New Child Pornography Law: Difficulties of Bill C-128" (1995), 4 M.C.L.R. 17.) 4. “ Dominant Characteristic” and “Sexual Purpose ” 50 The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1) (a)(ii), which targets possession of visual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a

person under the age of eighteen years”. The question is whether a reasonable viewer, looking at the depiction objectively and in context,would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for asexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers. 51 Family photos of naked children, viewed objectively, generally do not have as their “dominant characteristic” the depiction of asexual organ or anal region “for a sexual purpose”.

Placing a photo in an album of sexual photos and adding a sexual caption couldchange its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objectiveobserver: see R. v. Hurtubise, [1997] B.C.J. No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose,a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the“dominant characteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”.

If there is a reasonabledoubt, the accused must be acquitted. 5. “Sexual Organ” 52

Section 163.1(1)(a)(ii) catches static depictions for a sexual purpose of the “sexual organ” or “anal region” of a person under 18years, provided this is the dominant characteristic of the representation. This raises the question of the meaning of “sexual organ”. 53 Prudence suggests leaving the precise content of “sexual organ” to future case-law. However, no one suggests that s. 163.1(1)(a)(ii) was designed to catch depictions of eyes or lips. Parliament’s purpose of targeting possession of material associated with a reasonedrisk of harm to children suggests a restrained

interpretation of “sexual organ” in subpara. (ii), similar to that discussed above with respectto subpara. (i). 36. In R. v. Smith, (2005) (ON CA), O.J. No. 2811, the Court of Appeal for Ontario interpreted at para. 30 thelanguage used by McLachlin C.J.C. in Sharpe. The Court pointed out: 30 In considering the parameters of subparagraph (i)'s reference to "explicit sexual activity", McLachlin C.J.C. considered dictionarydefinitions of the modifier "explicit".

She determined that "'explicit' in the context of sexual acts means 'describing or representingnudity or intimate sexual activity'... [or] ... 'describing or representing sexual activity in a graphic fashion'" (para. 45). Based on thesedefinitions, McLachlin C.J.C. held that "the law catches only depictions of sexual intercourse and other non-trivial sexual acts" (para.45). Duty to Report 37. Persons, natural and corporate, who provide Internet service in Canada are required to report to the appropriate authorities IPaddresses where child pornography may be made available to the public. In

an Act respecting the mandatory reporting of Internet childpornography by persons who provide an Internet service S.C. 2011, c. 4, sections 2 to 5 read as follows: Duty to report Internet address 2. If a person is advised, in the course of providing an Internet service to the public, of an Internet Protocol address or a UniformResource Locator where child pornography may be available to the public, the person must report that address or Uniform ResourceLocator to the organization designated by the regulations, as soon as feasible and in accordance with the regulations. Duty to notify police officer 3.

If a person who provides an Internet service to the public has reasonable grounds to believe that their Internet service is being or hasbeen used to commit a child pornography offence, the person must notify an officer, constable or other person employed for thepreservation and maintenance of the public peace of that fact, as soon as feasible and in accordance with the regulations.

Preservation of computer data 4.

(1) A person who makes a notification under

section 3 must preserve all computer data related to the notification that is in their possession or control for 21 days after the day on which the notification is made. Destruction of preserved computer data

(2) The person must destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under subsection (1) as soon as feasible after the expiry of the 21-day period, unless the person is required to preserve the computer data by a judicial order made under any other Act of Parliament or the legislature of a province. No disclosure 5. A person must not disclose that they have made a report under

section 2 or a notification under

section 3, or disclose the contents of a report or notification, if the disclosure could prejudice a criminal investigation, whether or not a criminal investigation has begun. Analysis: What is the test to be applied for issuance of a Production Order? 38 . Under s. 487.014(2) of the Code , it is clear that the issuing judicial officer of a Production Order must have been satisfied by information on oath that there are reasonable grounds to believe that:

a) an offence has been or will be committed under the Code ; and

b) the data is in the person’s possession or control and will afford evidence respecting the commission of the offence. 39 . The Code and the Charter demand that reasonable grounds equate to “credibly-based probability”. This standard does not require proof beyond a reasonable doubt, nor even proof on a balance of probabilities. Further, the affiant seeking the Production Order need not establish a prima facie case for believing an offence was committed. Reasonable grounds “are not proof absolute”, although they must certainly amount to more than mere suspicion.

Has the test for issuance of the Production Order and the Subsequent Warrants to Search been met in this case? 40 . The defence seeks a finding that the ITO sworn by Pinkerton in support of the Production Order was facially insufficient to show that an offence had been or will be committed, as is statutorily required by

section 487.014(2) of the Code . The defence contends rather that the ITO sworn in support relied on bald, conclusory assertions. The notification received by the NCECC from KIK was neither shown to be reliable nor credible. 41 . The defence submits that the following two ITO’s sworn in support of the Residence Search Warrant and Cell Phone Search Warrant suffer from the same deficiencies, and are thus fundamentally flawed. 42 . Facial invalidity is central, of course, to whether a breach of Hemington’s s. 8 Charter rights can be demonstrated on a balance of probabilities. 43 .

The judicial officer who issued the Production Order allowing Pinkerton to further investigate the IP address of the uploader of “Lolita’s Art” is presumed to know the law. The officer knew from the second footnote to Pinkerton’s ITO that KIK is a company operating in Waterloo, Ontario, Canada. He knew that KIK operates an application, “KIK Messenger”, which is a freeware instant messaging mobile app available free of charge on iOS and Android operating systems. 44 .

From that information, the judicial officer was perfectly entitled to infer reasonably that KIK offered an Internet based service to the Canadian public. 45 . Further, the judicial officer was aware that KIK identified what it considered to be a single image of child pornography, which had been uploaded to its messaging system. KIK was therefore under a statutory duty to report the incident to police. 46 .

The judicial officer clearly was told as well that Pinkerton, an investigator assigned to the CSEU of the Ontario Provincial Police with some experience and training in identifying what constitutes child pornography as that term is defined under the Code , took the time himself to view the image reported by KIK. He agreed with KIK’s assessment, essentially corroborating what KIK had earlier identified

as child pornography. 47 . Pinkerton also gave a fairly detailed description of the image to the justice who granted the Production Order. Pinkerton estimated that the age of the female depicted was approximately 9 to 12 years. She was fully nude. 48 . A careful examination by the issuing judicial officer of the mechanics of the female subject’s pose would have logically led him to conclude that her breasts were visible to the observer. Her left arm was extended. Her left hand was behind her head. Her right hand was on her stomach. 49 .

The judicial officer is expected to exercise common sense and good judgement in determining whether reasonable grounds existed to believe an offence had been committed or will be committed. The image uploaded to the KIK Messenger app had two watermarks on it with the caption “Lolita’s Art”. Using common sense and life experience, the judicial officer could well have understood the “Lolita” reference and what it implied.

Even if the judicial officer did not know about the notorious novel entitled “Lolita” written by Vladimir Nabokov in 1955, he certainly did know from Pinkerton’s “Affiant Note” that “Lolita was a term commonly associated to child pornography investigations”. 50 . In

summary, the judicial officer knew that a female child’s naked breasts were depicted in an image uploaded on a freeware app. The pose the child struck was akin to those taken by models in, for example, Sports Illustrated’s Swimsuit Edition. In all likelihood, again drawing reasonable inferences, the image was posted as a ‘teaser’ for anyone like-minded to the uploader and sharing interests similar to his. 51 . I find that no conjecture was required on the part of the issuing judicial officer. Credibly based probability replaced suspicion in his mind. Rightfully, he believed that the image in question met the definition of child pornography as set out in

section 163.1(1) of the Code . The dominant characteristic of the female under the age of 18 was her bare breasts. 52 . The issuing judicial officer was on solid ground to believe the offences of possessing or making available child pornography had been or will be committed by the uploader. Were Hemington’s rights under s. 8 of the Charter violated? 53 . Having concluded that the ITO sworn in support of the Production Order was facially valid, there is no basis upon which to find that a breach of Hemington’s rights under

section 8 of the Charter have been infringed or denied. Conclusion: 54 . Pinkerton’s ITO sworn in support of the Production Order left much to be desired. He could have more fully detailed his experience and training. He could have more fully explained what KIK is and why it reported the detection of the image in question to the authorities. He could have described more fully the details of the exposed private areas of the young female depicted in the image. His ITO was far from perfect. 55 .

Nevertheless, the ITO disclosed reasonable grounds for believing an offence, possessing or making available child pornography, had been committed. The issuing judicial officer knew that KIK felt duty bound to report the upload of the image to its messaging service. In compliance with the law, KIK notified the authorities and sent the image to the NCECC. Pinkerton, a member of the CSEU with specialized experience and training, agreed with KIK’s assessment that the image constituted child pornography. He described the image for the judicial officer. The child depicted was nude with her breasts exposed.

The captions invited the objective viewer’s interest in child sexual eroticism clearly through the watermarks, “Lolita’s Art”. The ‘teaser’ was out there. 56 . I find the issuing judicial officer thus had reasonable grounds to believe the uploader had child pornography in his possession, which he was likely prepared to offer to others, and to receive from others, as a collector of this ‘so called’ art form. The Production Order validly issued based on a relatively ‘bare bones’, but sufficient ITO in terms of the evidence it put forth.

The ITO’s sworn in support of the Residence and Cell Phone Warrants, building on the information learned identifying the IP holder’s address, were also sufficient to justify the searches and seizures which ensued. 57 . As fairly and properly conceded by counsel for Hemington, the ITO sworn in support of the Dropbox Warrant disclosed the necessary and reasonable grounds for its issuance, where the cache of child pornography found in Hemington’s possession, was located. 58 . Hemington’s Charter application is therefore dismissed. DATED: June 8, 2021 ________________________________ March, M.G., J.