R. v. Millan, 2021 MBPC 36

CITATION: R. v. Millan, 2021 MBPC 36 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) C. Reimer, for the Crown ) ) - and - ) ) ) Ricky John Millan ) ) K. Jones, for the Accused Accused ) ) ) Reasons for Decision ) Delivered: August 27, 2021 C.A. DEVINE, P.J. INTRODUCTION and ISSUE [1] Mr. Millan was arrested on a number of child pornography charges after police seized and examined several computer devicesfound at his address. The search and seizure was authorized by a warrant issued by a judge of this court.

The defence is challenging theissuance of the warrant, alleging that there were insufficient grounds to grant it. If I find that the warrant should not have been issued,the defence makes a further argument that the evidence seized should be excluded pursuant to s. 24(2) of the Charter, because the searchand seizure were conducted in violation of Mr.

Millan’s Charter-protected right to privacy, and inclusion of the evidence would bring theadministration of justice into disrepute. [2] The first matter to decide is whether the warrant should have issued. [3] The defence concedes that there was circumstantial evidence that an offence was committed and that Mr. Millan was involved. [4] The narrow issue is whether there remained any evidence of the offence present in Mr.

Millan’s residence at the time theInformation to Obtain (ITO) was sworn and the warrant was issued, because there was a nine-month gap between the time the police hadinformation about a child pornography image being uploaded at the IP address associated with Mr. Millan and his residence, and thetime of the search. The defence argued that there was insufficient information in the warrant to provide reasonable grounds that therewas would still be evidence available after the passage of nine months between the upload of the child pornography and the warrantapplication.

STANDARD OF REVIEW [5] As the reviewing judge, it is important to note that this is not a hearing de novo, nor do I substitute my decision for that of theissuing judge. Rather, I must decide only whether the judge who issued the warrant could have done so. STANDARD OF PROOF [6] A judicially-authorized warrant is presumed to be valid. [7] In order for a warrant to be found invalid, the defence must demonstrate on a balance of probabilities that there was no basison which the issuing judge could have authorized the warrant. (R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paras. 67and 68).

REASONABLE GROUNDS FOR THE GRANTING OF A SEARCH WARRANT [8] The search warrant was issued pursuant to s. 487 of the Criminal Code. [9] In order for a search warrant to issue under s. 487 of the Criminal Code, police must satisfy the judge or justice that there arereasonable grounds to believe that a crime has been committed and that a search of a place will afford evidence with respect tocommission of the offence. The police are required to submit their application to obtain a warrant using Form 1 of the Criminal Code,

wherein they describe the things to be searched for and the offence in respect of which the search is to be made and that they believe on reasonable grounds that the things are in the place, in this case, the residence of the accused. [ 10 ] The judge considering whether to grant a warrant considers the totality of circumstances as set out in the ITO.

ANALYSIS OF WHETHER THE WARRANT WAS PROPERLY GRANTED [ 11 ] The only issue in this case is whether there were reasonable grounds to believe there was still evidence in the residence at the time the police applied for the search warrant. [ 12 ] The defence argued there was very little information, amounting to insufficient information, and therefore there were not reasonable grounds to believe there was any evidence present in Mr.

Millan’s home at the time the search warrant was requested. [ 13 ] The defence argument is that the gap of nine months, along with insufficient other information that the devices would still contain evidence of child pornography offences, render the warrant invalid. [ 14 ] The defence argued that first, that the police did not have any information of what device was used to upload the child abuse image. [ 15 ] Secondly, the defence argued that Detective Black’s assertion in the ITO that people tend to retain things which are important to them cannot be relied on or given any weight, because there is insufficient information about Detective Black’s expertise to legitimize that opinion. [ 16 ] None of the shortcomings nor criticisms argued by the defence alone or together, constitute sufficient reason to invalidate the warrant. [ 17 ] It is not necessary for police to specify which device was used in the commission of the offence.

Usually, they would not know until they search the premises. This is not information included in the IP address by the service provider, for example. [ 18 ] A nine-month lapse in time between the download and the ITO, is not, by itself, determinative. Although it was noted in R. v. Porter , 2016 ONSC 5589 that, “the greater the lapse of time, the more likely it will be impossible to recover images that were previously accessed” (at para. 53), the entire circumstances must be considered, not just the lapse in time. (And see R. v.

Wonitowy , 2010 SKQB 346 at para. 49 ) [ 19 ] There is no magic period of time that is allowable between the first discovery of computer child pornography in a place and search of that place for the evidence. It depends on many circumstances. In the cases filed by the Crown for example, there were gaps in time of varying lengths, between eight months and three years, which did not disentitle police from obtaining a warrant, and did not invalidate the warrants upon review. There was a gap of eight months in R. v.

Miller , 2018 MBQB 113 , where, similar to this case, only one image had been uploaded eight months earlier. In Wonitowy , the gap was seven months; in R. v. Noseworthy , 2017 NLTD(G) 121, the gap was 11 months; in Porter the gap was three years. [ 20 ] The defence relied on the case of R. v. Goodfellow , 2014 ONCJ 567 , where the reviewing judge determined that the gap of 13 months was too long to be reasonably sure that evidence of child pornography would still be present on the devices in the home. There had been only one download of child pornography in that case as well.

The reviewing judge also found that the police belief that there would still be available evidence was speculative, exaggerated, over-stated and relied on myths and stereotypes about child pornography offenders. [ 21 ] The Goodfellow case has been distinguished by subsequent cases ( Miller , at para. 24 and Porter at paras. 62 – 63 ), and it is distinguishable in this case. [ 22 ] In Goodfellow , there were several people associated with the address, whereas in this case, the accused is the only person associated with the relevant address during the relevant period.

In Goodfellow , there was no evidence presented about whether the image could still be on the computer 13 months later, and the image was merely accessed, whereas there is evidence in the ITO in this case that the image would reasonably still be present on the computer. Unlike the case in Goodfellow , where the image was simply accessed, in this case the image was uploaded. I observe the quote above from Porter , also uses the word “accessed” as opposed to uploaded.

Accessed images are fleeting interactions, possibly even accidental in some cases, whereas uploading an image is an intentional act involving one or more steps. Whereas in Goodfellow , evidence of the accused and his address was somewhat vague, “a file containing child pornography was downloaded onto a computer at or near 798 Syer Driver, Milton on May 20, 2011”, in this case, there is a specific IP address linked to Mr. Millan and to his residential address. [ 23 ] Defence argued that in other cases, such as Wonitowy , the issuing justice had more evidence giving rise to a ‘credibly-based probability’.

The inference is that because the judge in this case had less evidence it did not meet the threshold.

The proper approach is not to criticize what was not in the ITO, compared to other cases, but rather, whether there was sufficient information about the existence of relevant evidence in the home at the time the warrant was sought. [ 24 ] The Crown listed in their brief the extensive information that the police included in the ITO, as follows: • The images were uploaded on May 22, 2019 and August 21, 2019. • The images both contained child pornography and a description of each image was provided. • The images were both uploaded using an instant messaging application for mobile devices called “kik messenger”. • Username “lknnwpg” was associated with the user that uploaded both images.

• Email address rjmillan64@gmail.com was associated with the user that uploaded both images. • The Affiant’s review of the National Child Exploitation Coordination Centre (NCECC) report directed him to Ricky John Millan, born June 24, 1964, residing at 174 Perth Avenue, with a phone number of 204-557-1662 as the single suspected user of the account. • The first image was uploaded using IP address 209.171.88.167 and the second image was uploaded using IP address 50.70.239.17. • The first IP address was determined to be located in Toronto, Ontario and the second IP address was determined to be located in Winnipeg, MB. • The second IP address was assigned to subscriber Rick Millan of 174 Perth Avenue in Winnipeg, MB with phone number 204- 557-1662 at the time the second image was uploaded. • MPI records confirmed that Ricky John Millan was associated with address 174 Perth Avenue and provided further details of this individual. • The affiant observed a white Dodge Ram truck parked in front of 174 Perth Avenue on May 22, 2020 with plate number TRKNN, registered to Ricky John Millan of 174 Perth Avenue. • As of May 25, 2020 the Affiant believed Rick Millan currently lived at 174 Perth Avenue in Winnipeg, Manitoba. • As of May 25, 2020, the Affiant believed a person residing at 174 Perth Avenue uploaded the child pornography in 2019. • Devices save images to various locations within internal and external storage, where those images can remain for a period of time, even after the user attempts to discard or delete that image. • Police computer forensic technicians have software that can recover images on devices, which the user may believe had already been deleted. • In the Affiant’s own experience, it is common for individuals to also make additional copies of meaningful or important data, which would make the data easily retrievable. • As of May 25, 2020 the Affiant believed that evidence of the offence would still exist in the residence at 174 Perth Avenue. [ 25 ] An IP address is issued to only one user; in this case the IP address was issued to Mr.

Millan. The police had a name, an address and billing information when they requested information from Shaw Communications. Shaw Communications advised the police that Rick Millan of 174 Perth Avenue was the subscriber. Subsequently, Detective Black confirmed that Mr.

Millan resided at that address at the time of the upload and currently, and that no one else had lived there in the preceding nine months. [ 26 ] The defence placed considerable emphasis on the lack of information about Detective Black’s training, experience and expertise in child pornography investigations, comparing the information about his background with that detailed in other cases. I am not relying on Detective Black’s opinion that people tend to save things of importance to them.

It is not specific enough to be of much relevance. [ 27 ] What is more relevant and convincing, is the information provided to Detective Black from the computer technician previously assigned to the ICE Unit, that images can remain on a hard drive or external storage device for a period of time and that even a “deleted” image can still allow access to copies on a hard drive and that a deleted image is not actually permanently removed, but rather, has just created space to be written over with new data.

If the freed up space has not been used, forensic technicians can recover images that the user believe were deleted. [ 28 ] That is strong evidence that evidence of the child pornography images still existed on the devices in Mr. Millan’s home at the time the warrant was granted. CONCLUSION [ 29 ] The defence has not proven on a balance of probabilities that the issuing judge had no basis to find there were reasonable grounds to believe that evidence of the offences was in Mr. Millan’s home at the time. I am satisfied that there was sufficient information for granting of the search warrant of 176 Perth Avenue.

The defence motion to set aside the warrant is dismissed. “Original signed by:” C.A. DEVINE, P.J.