2021 QCCQ 4433, 2021 QCCQ 4433

Translated from the original French R. c. Laffont 2021 QCCQ 4433 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-167361-184 Date: May 25, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ THE QUEEN Respondent v.

NICOLAS LAFFONT Applicant ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE EVIDENCE ( Sections 2(b) , 8 , and 24(2) of the Canadian Charter of Rights and Freedoms ) [1] ______________________________________________________________________ [ 1 ] Nicolas Laffont (the “applicant”) is facing six charges related to child pornography. He is charged with having: “transmitted, made available, distributed” child pornography (s. 163.1(3)(

a) Cr. C. and having possessed child pornography (s. 163.1(4)(

a) Cr. C. on different dates, that is, July 12, 2015, March 7, 2016, and from July 2, 2017, to August 21, 2017. [ 2 ] The applicant, a journalist, argues that the three search warrants that were authorized are invalid because they did not meet the requirements of ss. 488.01 and 488.02 Cr. C. . [ 3 ] The warrants were authorized by presiding justices of the peace pursuant to s. 487 Cr. C.

Admissions • The applicant’s status as a journalist under s. 39.1 of the Canada Evidence Act [2] ( “ CEA ”), is admitted; • The sufficiency of the grounds in the three search warrants is also admitted; Warrant No. 500.26.105531-187 (locker/ “local d’entreposage”) Warrant No. 500.26.105321-180 (4897 Queen Mary Rd., apartment 10) Warrant No.: 500.26.105987-188 (items seized at the Montréal-Trudeau airport) Respondent’s evidence on the voir dire [ 4 ] Detective Sergeant Vincent Sévigny is a police officer with the SPVM.

For four years, he has been part of the Child Sexual Exploitation Unit , child pornography module.

He has been a police officer for 18 years and a detective sergeant since 2011. [ 5 ] He has drafted informations to obtain the search warrants on many occasions. [ 6 ] He described to the Court the circumstances in which the investigation in this case began. [ 7 ] The internet service provider Skype (“Skype”) intercepted a user six times over a period of two years, that is, from July 2015 to August 2017. [ 8 ] Under U.S. law, the internet service provider must report child pornography images to the National Center for Missing and Exploited Children (“NCMEC”).

That organization then sends the information to the bureau responsible for the investigation, which in Canada is Ottawa. [ 9 ] Based on the IP address used to upload one or more images, the Ottawa investigation bureau identifies the user’s location when the image or images were uploaded. In Montreal, the bureau sends the SPVM a report that includes the Skype report and the uploaded images. That is the starting point for the SPVM’s investigation.

[ 10 ] In its report, Skype sends the time, the date the images were sent, the user name, and the IP address. [ 11 ] Once the SPVM receives the report, the investigator’s task is to identify the user attached to the IP address. [ 12 ] To that end, it uses a production order to obtain the name of the internet service provider that owns the IP address.

Then it uses a second production order to obtain the information in the customer account for the IP address from the internet service provider. [ 13 ] Skype made six reports with respect to four IP addresses in this case. [ 14 ] These reports can be broken down as follows: Report No. 1 [ 15 ] On August 10, 2015, Skype sent a report to the NCMEC indicating that on July 12, 2015, at “X” o’clock, a user “[user 1]” uploaded a child pornography image using their services.

The user used IP address “X”. [ 16 ] The internet service provider in Canada that owns IP address “X” is Bell. [ 17 ] The information in the customer account for IP address “X” indicated that Nicolas Laffont owned the account and resides at 4815 Queen Mary Road, apartment 21, Montreal. [ 18 ] Detective Sergeant Sévigny viewed the image and concluded that it was child pornography. Report No. 2 [ 19 ] On March 7, 2016, Skype sent a report to the NCMEC indicating that on March 7, 2016, at “Y” o’clock, a user “[user 2]” uploaded a child pornography image using their services.

The user used IP address “Y”. [ 20 ] It was the same image as in the first report. [ 21 ] The internet service provider in Canada that owns IP address “Y” is Bell. [ 22 ] The information in the customer account for IP address “Y” indicated that the account was in the name of Nicolas Laffont, who resided at 4815 Queen Mary Road, apartment 21, Montreal. There was also a co-user named Jacques Godbout. Report No. 3 [ 23 ] On July 3, 2017, Skype sent a report to the NCMEC indicating that on July 2, 2017, at “Z” o’clock, a user “[user 3]” uploaded a child pornography image using their services.

The IP address was “Z”. [ 24 ] It was the same image as in the two previous reports. [ 25 ] The internet service provider in Canada that owns IP address “Z” is Bell. [ 26 ] The information in the customer account for IP address “Z” indicated that the account was in the name of Nicolas Laffont, who resided at 4815 Queen Mary Road, apartment 10, Montreal.

Report Nos. 4, 5 and 6 [ 27 ] Between August 17 and 22, 2017, Skype intercepted the same child pornography image three times, and two other similar images. [ 28 ] The images were all uploaded from the same IP address, “A”, which belongs to internet service provider EBOX. [ 29 ] The information in the customer account for IP address “A” indicated that this address was attributed to Mélanie Thibault, who resided at [...] in Montreal and that the applicant was her mandatary. [ 30 ] Detective Sergeant Sévigny’s police investigation began in the fall of 2016 with the first two reports, that is, those that led to 4815 Queen Mary Road, apartment 21, Montreal.

He received the other reports later. [ 31 ] During his research, the police officer learned that someone named Jacques Godbout was also linked to this address. [ 32 ] The police officer planned a search of this address, but discovered that the applicant and Jacques Godbout no longer lived there.

The applicant was in France. [ 33 ] Without any grounds to conduct the search, Detective Sergeant Sévigny closed both cases. [ 34 ] In the fall of 2017, the police officer received the other reports that again led him to the applicant. [ 35 ] Report No. 3 was linked to 4897 Queen Mary Road, apartment 10, Montreal, where the applicant was living. He had therefore moved to the same street. [ 36 ] The other reports linked Mélanie Thibault to [...].

The applicant, however, was only her mandatary. [ 37 ] Armed with this new information, the police officer reopened the cases involving the first two reports and again planned a search, this time of 4897 Queen Mary Road, apartment 10, Montreal.

[ 38 ] While researching the first two reports, the detective sergeant learned that the applicant and Jacques Godbout were connected to the world of journalism. [ 39 ] He also knew from his internet research that the applicant had a certificate in journalism. [ 40 ] The police officer did other research on the applicant and Jacques Godbout while planning the search. [ 41 ] He learned from his internet research that the applicant claimed to be the editor and editor-in-chief of 45enord , a publication dedicated to news about the army.

Jacques Godbout was also part of the journalism team. [ 42 ] The investigator knew that the internet invoices for Queen Mary Road were in the applicant’s name, but he did not know if he lived there, despite the surveillance he had done. The latest information available to the police officer was that the applicant was in France. Jacques Godbout, however, lived at that address. [ 43 ] At this stage of the police investigation, the potential suspect who allegedly committed the offences was just an IP address in the applicant’s name, which in itself did not reveal the identity of the person using the keyboard.

Thus, Jacques Godbout, who lived at this address, was equally likely to have committed the offences. [ 44 ] The investigator knew that there is an apartment at 4897 Queen Mary Road, that is, apartment 10, and he suspected that Jacques Godbout and the applicant were working from that location. [ 45 ] The police officer drafted an information to obtain a search warrant for that address under s. 487 Cr. C. [ 46 ] He proceeded under that

section of the Criminal Code , because he always proceeded this way for this type of case. The police officer did not know that the Criminal Code included specific provisions applicable to journalists. He learned this in the winter of 2019 during a meeting with Crown counsel for the case. [ 47 ] Before conducting the search, the detective sergeant notified his organization’s superiors that he intended to search a journalist’s home. [ 48 ] He filled out the form created for that purpose and sent it to management. The form was returned to him with the signature of the five directors concerned.

To the investigator, that meant that everyone in management knew that a journalist’s home was going to be searched. [ 49 ] The investigator then applied to a presiding justice of the peace for authorization of the warrant. He did not tell the judge that the warrant involved a journalist.

To the police officer, there was no connection between the offence of possession of child pornography and the fact that the applicant was a journalist. [ 50 ] The warrant did not mention the fact that the applicant was a journalist. [3] It was signed on February 1, 2018, and executed on February 8, 2018. [ 51 ] The investigator showed up at the address indicated in the search warrant accompanied by three detective sergeants and other uniformed police officers. Two computer specialists joined them later on. [ 52 ] The search warrant was shown to Jacques Godbout, who was the only person on the premises.

He was a possible suspect. [ 53 ] When questioned by Detective Sergeant Sévigny, Jacques Godbout confirmed that he was living in that apartment with the applicant, who was visiting his parents in France. He returned from France on February 14, 2018. [ 54 ] Investigator Sévigny described the police officer the computer equipment used by Jacques Godbout and that used by the applicant. The police officers seized the equipment based on the information received. [ 55 ] The living room computer allegedly used by the applicant contained 42 child pornography images under the session name “Nicolas”.

To investigator Sévigny, the applicant was the suspect he was looking for. [ 56 ] Jacques Godbout told the police officers that the applicant had a locker in the basement of the building. [ 57 ] That same day, a second search warrant was authorized to search the locker. As with the first warrant, there was no mention that the applicant was a journalist. A presiding justice of the peace signed it. [4] [ 58 ] The search of the locker was fruitless. [ 59 ] Investigator Sévigny then did what was necessary to arrest the applicant upon his arrival at the airport on February 14, 2018.

The police officer called him in France to inform him of the situation. [ 60 ] On February 14, 2018, Canadian Border Services Agency officers intercepted the applicant and his luggage. [ 61 ] On March 14, 2018, a presiding justice of the peace issued a search warrant under s. 487 Cr. C . to seize the computer material in the applicant’s luggage.

The warrant did not mention that the applicant was a journalist. [5] [ 62 ] Police officers seized two cell phones and a laptop. [ 63 ] Detective Sergeant Sévigny described to the Court his procedure for viewing the photos and videos found in the seized material. [ 64 ] His testimony can be summarized as follows:

• The six transmissions all included the same child pornography images; • The investigator’s job was to extract all of the child pornography files from the seized material. To do so, he used the “Lace” software, which allows the sought items to be viewed and filed; • He looked only for photos and videos, which are the media on which child pornography material is generally found. “Lace” detected this type of file in the seized equipment.

Written files were excluded from the analysis; • The items were filed into three categories: 1- Child pornography as defined in the Criminal Code ; 2- Child nudity; 3- Other. • Detective Sergeant Sévigny found 2,109 image files and 814 video files in category 1. Most of the files contained prepubescent children, more boys than girls. They included the two images sent in the six reports. No category 2 image was found. • The viewing: o It is done using one of the four computers designated for that purpose at Place Versailles office in Montreal.

Only the unit’s detective sergeants have access to them (10 police officers at the time of the events); o Access is password protected; o The work is done using mirror images to avoid altering the original computer material. Once the expert assessment has been performed, the material was handed over to the technological crimes section, which keeps it as an exhibit until the end of the legal proceeding; o The computer specialists send the images to the “Lace” server. Only the investigator views them.

Other police officers from the unit can also access the same images to help with the viewing, which can involve many items; o A single page can contain 40 images. If the image is clear and is not child pornography, it is filed in category 3, which takes a few seconds; o In this case, the army images were filed in category 3; o The images are stored on “Lace” and deleted at the end of the judicial process. During the process, they are saved on a CD for legal purposes; o The “Lace” procedure can take six months, and ends with the production of a report. In this case, the “Lace” report was ready in June 2018.

The viewing was done in the spring of 2018. [ 65 ] Detective Sergeant Sévigny’s cross-examination revealed the following: • Given his verifications, he acknowledges that he should have expected to find journalistic material on the seized computers. He may even have seized some; • The investigator was aware that he might find journalistic sources in the seized computer material; • 19 computer items were seized, six of which contained child pornography; • While he was doing the viewing, the investigator saw many images of the army.

When he did, he immediately moved on to another image. [ 66 ] The respondent called the computer experts who were involved in the applicant’s file. [ 67 ] Sylvio Foglietta is an SPVM investigator with the technological crimes section. His main task is to extract data from the computers, hard drives, or other computer material. [ 68 ] He participated in the search of the applicant’s home. Mr.

Foglietta knew it was a child pornography file, but nothing more. [ 69 ] That day, at around 9:30 a.m., he parked the mobile laboratory near the residence and met with Detective Sergeant Sévigny. [ 70 ] He described the procedure followed with respect to the seized computer material. [ 71 ] The Acer computer was taken to the mobile laboratory. The hard drive was extracted and plugged into a blocker to carry out a rapid and targeted search for certain evidence, that is: Skype conversations, photos, videos.

The blocker is used to prevent read-only data from being modified. [ 72 ] That search excluded any written documents. Furthermore, no keyword search was done.

[ 73 ] Although five hard drives were seized, the only one that was checked was the one plugged into the Acer tower. [ 74 ] Inside the mobile laboratory, Mr. Foglietta used software to extract the data and the investigator sitting beside him selected the items. The purpose of this operation was to confirm that the seized material contained child pornography. [ 75 ] At the end of the search, the items were copied onto DVDs then sent to the technological crimes

section responsible for putting them on its server. [ 76 ] Mr. Foglietta viewed 45 photos, which, according to him, were clearly child pornography photos. Only these photos were copied onto DVDs. [ 77 ] The witness’s cross-examination revealed that he was not told that the location searched was a newspaper’s place of business. In addition, he was not told to be careful with confidential material. He never dealt with any emails when preparing his expert report. [ 78 ] Dave Giordano is a computer forensics investigator.

He performed the pre-expert assessment of the seized material and extracted the data in the cell phones. [ 79 ] Mr. Giordano’s only mandate was to extract data. [ 80 ] The items were stored in Room 50 and a clerk was responsible for them. Their chain of possession can be consulted using Room 50’s control system. The investigator sent the items to Mr. Giordano and they were returned to Room 50 when they were no longer needed. [ 81 ] Mr. Giordano explained that he extracted the data from the item, then selected the images and the videos that he imported so that the case investigator could view them.

The selection of photos and videos was done with the investigator, regardless of where the evidence was stored on the item that was the subject of the expert report. [ 82 ] The videos and the photos were sent using the “Lace” software, which is not available to the public. [ 83 ] Mr. Giordano worked alone, and nothing he did was accessible to the public or to journalists. [ 84 ] Francis Claverie is a computer technician in the investigation support unit of the forensic identification and technological crimes section.

He is a civilian employee of the SPVM. [ 85 ] He produced several acquisition reports filed by the respondent. [ 86 ] The acquisition procedure consists of making full digital copies of the data found on the items the technician receives. These are judicial copies made according to the procedures in force in the technological crimes section. [ 87 ] The items he received from a clerk came from Room 50. [ 88 ] Sometimes, the technician kept the items for more than one day.

Nevertheless, the room he worked in was secure and access was therefore restricted. [ 89 ] During the acquisition, he did not read the files and he used blockers. [ 90 ] Although the technician’s role is not to view the material, he might sometimes see it when assisting the investigator doing the viewing. Applicant’s evidence [ 91 ] The applicant testified at the voir dire . [ 92 ] He is a journalist with a master’s in communication and a certificate in journalism. He has had a press card since 2009. [ 93 ] In 2012, Mr. Godbout and the applicant founded 45enord.ca, a website devoted exclusively to military news.

The website contains videos, photos, and news reports on the subject. Financing for 45enord came from advertising, sponsorships and donations. [ 94 ] The newspaper’s address was 4897 Queen Mary Road, apartment 10, Montreal. That is also the residential address of the applicant and Jacques Godbout, who live together. [ 95 ] Info Média is directed by Mr. Godbout, who owns it and works there as a journalist. [ 96 ] The applicant is responsible for editing and is a field reporter. [ 97 ] On February 8, 2018, the applicant was in France for family reasons. That day, all his computer material was seized.

He had bought and invested it as an asset of 45enord. [ 98 ] The applicant used his laptop computer for both personal and professional purposes. [ 99 ] The office computer tower was used to store the newspaper’s archives and for video editing. The applicant also used it for

personal and professional purposes. [ 100 ] The cell phone was mostly for personal use, but was sometimes used to record interviews. [ 101 ] The applicant was arrested at the Montreal-Trudeau airport and authorities seized his laptop and two cell phones. [ 102 ] Among other things, the laptop the applicant also used for personal purposes contained the business’s files, articles, contracts, invoices, contact information of “key persons” and resource persons, investigations, and sensitive documents. [ 103 ] Informants had sometimes supplied the sensitive documents.

The applicant added that his computer contained videos of special forces or persons testifying anonymously. Although there were no written agreements with such persons, the applicant guaranteed their anonymity and the non-disclosure of the information shared. [ 104 ] Detective Sergeant Sévigny told the applicant that his home had been searched. [ 105 ] The day after his arrest, he was interrogated by the police. [ 106 ] the newspaper stopped operating because the computer equipment had been seized. The applicant told a female police officer that it contained journalistic material.

She asked for his cooperation to identify items that might contain child pornography so that items that did not could be returned to Mr. Godbout. [ 107 ] The applicant described the impact of the search on 45enord: • Lack of updates: the paper was out of date for two weeks; • Decline in readership: at the end of 2017, the newspaper had nearly 100,000 visitors a month.

After the search, it had a little over 45,000; • Loss of income and departure of certain sponsors; • Impossible to access the newspaper’s archives because the material was still seized. • Impact on sources: impossible to access their contact information. Some of them stopped speaking to the applicant, who could no longer reassure his sources. [ 108 ] The applicant’s cross-examination revealed the following: [ 109 ] 45enord had a dozen collaborators.

However, Jacques Godbout and the applicant were alone responsible for posting information on the website. [ 110 ] The articles signed [ translation ] “The Editor” were texts that had been rewritten. Those signed “AFP” were from Agence France Presse, to which 45enord had been subscribing since 2014. [ 111 ] Due to the search, the newspaper did not publish for two weeks.

Nonetheless, the applicant has since published many articles, most of which are original material, that is, 228 articles in total. [ 112 ] In addition, in April 2019, the applicant created a new media, a French version of 45enord, whose office is in Béziers. He is the only writer for that paper and has published 71 articles. [ 113 ] The applicant’s court conditions were revised: - To allow him to visit his parents in France.

He took advantage of that to create 45enord.fr; - To cover the G7 in Charlevoix; - To follow the Canadian army in the Antarctic; [ 114 ] He was permitted under his court conditions to use a cell phone for work. [ 115 ] The applicant stated the following about the impact of the search on 45enord: • He predated certain articles; • He programmed certain articles so that they would be published on specific dates; • Everything he had ever published in 45enord remained accessible on the internet; • He lost the collaboration of some informants but was able to recruit others; [ 116 ] In 2016-2017, the applicant had to return to France due to his status in Canada.

He had visitor’s status, which did not allow him to have remunerated employment. He lived off the money his parents sent him and the dividends he received from the business. [ 117 ] During the period from January 22, 2016, to June 22, 2017, the applicant wrote and published 228 articles on 45enord. For that same period, at least as many articles would be published as [ translation ] “The Editor”. [ 118 ] Jacques Godbout testified. He is a journalist. He is responsible for Info Média and cofounder of 45enord. He works for the

paper’s news desk and is also a reporter. [ 119 ] He had access to the two computer towers in the apartment. On February 8, 2018, police officers seized all of the computer material in the apartment, including the two towers. He managed to recover only his cell phone from the police officers. Positions of the parties [ 120 ] The applicant argues that his constitutional right to be secure against unreasonable searches or seizures set out at s. 8 of the Charter was infringed. The applicant is a journalist, so search warrants authorized under s. 487 Cr.

C. by a presiding justice of the peace are invalid and should have been authorized under s. 488.01 Cr. C. by a judge designated in that provision of the Criminal Code . [ 121 ] The applicant claims the infringement is exacerbated by the fact that the search and seizure were performed without taking into account that it was not only his home, but also the place of business of the 45enord newspaper ( s. 2(

a) of the Charter ). He seeks the exclusion of the evidence obtained in violation of the Charter . [ 122 ] The respondent acknowledges that the applicant is a journalist within the meaning of s. 39.1(1) of the CEA . [ 123 ] It also admits that the applicant has established that his right under s. 8 of the Charter was infringed. Nevertheless, it argues that the evidence obtained by the State should not be excluded. Legal Context [ 124 ] Excerpts of ss. 488.01, 488.02 Cr. C. and s. 39.1 of the CEA read as follows: 488.01

(1) The following

definitions apply in this

section and in

section 488.02. document has the same meaning as in

section 487.011. (document) data has the same meaning as in

section 487.011. (données) officer means a peace officer or public officer. ( fonctionnaire ) journalist has the same meaning as in subsection 39.1(1) of the Canada Evidence Act . ( journaliste ) journalistic source has the same meaning as in subsection 39.1(1) of the Canada Evidence Act . (source journalistique) Warrant, authorization and order

(2) Despite any other provision of this Act, if an applicant for a warrant under

section 487.01, 487.1, 492.1 or 492.2, a search warrant under this Act, notably under

section 487, an authorization under

section 184.2, 184.3, 186 or 188, or an order under any of sections 487.014 to 487.017 knows that the application relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist, they shall make an application to a judge of a superior court of criminal jurisdiction or to a judge as defined in

section 552. That judge has exclusive jurisdiction to dispose of the application. Warrant, authorization and order

(3) A judge may issue a warrant, authorization or order under subsection (2) only if, in addition to the conditions required for the issue of the warrant, authorization or order, he or she is satisfied that

a) there is no other way by which the information can reasonably be obtained; and

b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information. Special Advocate

(4) The judge to whom the application for the warrant, authorization or order is made may, in his or her discretion, request that a special advocate present observations+ in the interests of freedom of the press concerning the conditions set out in subsection (3). Offence by journalist — exception (5) Subsections (3) and (4) do not apply in respect of an application for a warrant, authorization or order that is made in relation to the commission of an offence by a journalist. Offence by journalist — order

(6) If a warrant, authorization or order referred to in subsection (2) is sought in relation to the commission of an offence by a journalist and the judge considers it necessary to protect the confidentiality of journalistic sources, the judge may order that some or all documents obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with

section 488.02. Conditions

(7) The warrant, authorization or order referred to in subsection (2) may contain any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities. Powers (8) … Discovery of relation to journalist (9) … (a) … (b) … Powers of judge

(10) On an application under subsection (9), the judge may: (

a) confirm the warrant, authorization or order if the judge is of the opinion that no additional conditions to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities should be imposed; (

b) vary the warrant, authorization or order to impose any conditions that the judge considers appropriate to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities; (

v) if the judge considers it necessary to protect the confidentiality of journalistic sources, order that some or all documents that were or will be obtained pursuant to the warrant, authorization or order are to be dealt with in accordance with

section 488.02; or (

d) revoke the warrant, authorization or order if the judge is of the opinion that the applicant knew or ought reasonably to have known that the application for the warrant, authorization or order related to a journalist’s communications or an object, document or data relating to or in the possession of a journalist. 488.02

(1) Any document obtained pursuant to a warrant, authorization or order issued in accordance with subsection 488.01(3), or that is the subject of an order made under subsection 488.01(6) or paragraph 488.01(10)(c), is to be placed in a packet and sealed by the court that issued the warrant, authorization or order and is to be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and is not to be dealt with except in accordance with this section. Notice

(2) No officer is to examine or reproduce, in whole or in part, a document referred to in subsection (1) without giving the journalist and relevant media outlet notice of his or her intention to examine or reproduce the document. Application

(3) The journalist or relevant media outlet may, within 10 days of receiving the notice referred to in subsection (2), apply to a judge of the court that issued the warrant, authorization or order to issue an order that the document is not to be disclosed to an officer on the grounds that the document identifies or is likely to identity a journalistic source. Disclosure: prohibition

(4) A document that is subject to an application under subsection (3) is to be disclosed to an officer only following a disclosure order in accordance with paragraph (7)(b). Disclosure order

(5) The judge may order the disclosure of a document only if he or she is satisfied that (

a) there is no other way by which the information can reasonably be obtained; and (

b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information. Examination

(6) The judge may, if he or she considers it necessary, examine a document to determine whether it should be disclosed. Order

(7) The judge must, (

a) if he or she is of the opinion that the document should not be disclosed, order that it be returned to the journalist or the media outlet, as the case may be; or (

b) if he or she is of the opinion that the document should be disclosed, order that it be delivered to the officer who gave the notice under subsection (2), subject to such restrictions and conditions as the judge deems appropriate. 39.1

(1) The following

definitions apply in this section. document has the same meaning as in

section 487.011 of the Criminal Code . ( document ) journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person. ( journaliste ) journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source. ( source journalistique ) Objection

(2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source. Former journalist

(3) For the purposes of subsections (2) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual. Power of court, person or body

(4) The court, person or body may raise the application of subsection (2) on their own initiative. Objection of court, person or body

(5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section. Observations

(6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations+. Authorization

(7) The court, person or body may authorize the disclosure of information or a document only if they consider that o (

a) the information or document cannot be produced in evidence by any other reasonable means; and o (

b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things, ▪ (

i) the importance of the information or document to a central issue in the proceeding, ▪ (ii) freedom of the press, and ▪ (iii) the impact of disclosure on the journalistic source and the journalist. Conditions

(8) An authorization under subsection (7) may contain any conditions that the court, person or body considers appropriate to protect the identity of the journalistic source. • Burden of proof

(9) A person who requests the disclosure has the burden of proving that the conditions set out in subsection (7) are fulfilled. • Appeal (10) … (a) … (b) … (v) …

(d) … • Limitation period for appeal (11) … • Hearing in

summary way (12) … [ 125 ] The Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources) came into force on October 18, 2017. [6] [ 126 ]

Section 488.01 Cr. C. governs the procedure for issuing warrants, authorizations, and orders relating to a journalist’s communications and the documents or data that concern that journalist or that are in his or her possession. [ 127 ]

Section 39.1 of the CEA reiterates the principles established by the Supreme Court in National Post and in Globe and Mail [7] based on the “Wigmore test”. [ 128 ] As the Supreme Court wrote in Denis v. Côté , [8] s. 39.1 of the CEA is “a scheme of new law” which affords enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources. [28] Only s. 39.1 CEA is at issue in the instant case.

It is important to stress that in carrying out its plan to modernize the law by including s. 39.1 in the CEA , Parliament drew upon the various decisions rendered by the Court on this subject over the years. However, it modified the structure of the test and the weights of the identified criteria. Thus, some criteria that were but considerations are now essential conditions, while others have become less important.

By this meticulous reorganization, Parliament has created a scheme of new law from which a clear intention emerges: to afford enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources. Although the clearest illustration of this intention lies in the shifting of the burden of proof provided for in s. 39.1(9) CEA , there are, as I will explain below, a number of other modifications that also attest to it.

A brief overview of the two schemes — the old and the new — is needed in order to fully explain the scope of the change. [Emphasis added.] [ 129 ] In R. v. Canadian Broadcasting Corporation , [9] the Ontario Superior Court of Justice describes the objectives of the Journalistic Sources Protection Act : [1] This ruling concerns the provisions of the Journalistic Sources Protection Act , S.C. 2017, c.22 (“ JSPA ”), which came into force on October 18, 2017. Despite its name, the Act addresses more than the protection of journalistic sources.

It also gives a measure of protection to the right of journalists to privacy in their gathering or dissemination of information. [2] The JSPA accomplishes the first of these objectives by amending the Canada Evidence Act , R.S.C. 1985, c.C-5 to protect the confidentiality of journalistic sources.

It allows journalists to refuse to disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source. [3] The JSPA further advances the first objective and accomplishes the second objective by adding restrictions to the provisions of the Criminal Code of Canada, R.S.C. 1985, c.C-46 (“the Criminal Code ” or “the Code ”) that authorize search warrants, orders to intercept private communications and production orders when they relate to journalists.

Analysis under s. 24(2) of the Charter . [ 130 ] The applicant has the burden of proving to the Court, on a balance of probabilities, that one of his Charter -protected rights or freedoms was infringed or denied. [ 131 ] In light of the respondent’s admission and the evidence heard, the Court finds that the applicant’s right set out in s. 8 of the Charter , that is, the right to be secure against unreasonable search or seizure, was infringed. Indeed, the evidence as a whole establishes that the search warrants should have been authorized under s. 488.01 Cr.

C . by a competent judge according to the terms of that provision.

Therefore, the warrants are invalid and the searches executed unreasonable. [ 132 ] When faced with an application for exclusion under s. 24(2) of the Charter , the Court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. [ 133 ] The Court must now determine whether the evidence obtained as a result of a Charter infringement must be excluded. [ 134 ] This issue must be examined using the three criteria set forth by the Supreme Court in Grant : [10] 1- the seriousness of the Charter -infringing state conduct; 2- the impact of the breach on the Charter -protected rights of the applicant; and 3- society's interest in the adjudication of the case on its merits. [ 135 ] The test for excluding evidence is flexible. [ 136 ] The applicant has the burden of proving to the Court, on a balance of probabilities, that the admission of the evidence is likely to

bring the administration of justice into disrepute. 1- Seriousness of the Charter -infringing state conduct [ 137 ] This factor must be weighed against all of the circumstances by examining the conduct of the agents of the state as a whole. [ 138 ] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence obtained in breach of the Charter . [ 139 ] The respondent acknowledges that journalism is a pillar of Canadian democracy.

Nonetheless, although it admits that the applicant’s s. 8 Charter rights were infringed, it argues that this infringement is first and foremost technical. [ 140 ] In the respondent’s view, s. 488.01 Cr. C. does not protect the journalist, but journalism. This protection applies above all to journalistic sources, which in this case was irrelevant since the search targeted exclusively child pornography. [ 141 ] The respondent added that it is admitted that the search warrants were based on reasonable grounds and that the material would have been seized regardless of the Cr.

C. provision used to authorize its seizure. In addition, Officer Sévigny, who performed the searches, was not in bad faith or act deliberately. [ 142 ] Last, it argues that the Court need not necessarily dissociate itself from this kind of state conduct. [ 143 ] Let us briefly return to the facts. [ 144 ] In this case, the credibility of the witnesses, either those of the applicant or those of the respondent, is not at stake. The cross- examination of these witnesses did not reveal any weakness or contradiction, but merely provided details.

The Court accepts the testimony heard and considers it trustworthy. [ 145 ] Even before he obtained the search warrants, Detective Sergeant Sévigny knew that the applicant was a journalist and presented himself as the editor and editor-in-chief of 45enord. He acknowledges that he could expect the seized computers to contain journalistic material and sources.

He also suspected that the applicant and Jacques Godbout were working from 4897 Queen Mary Road, apartment 10. [ 146 ] Since he knew a journalist was involved, Detective Sergeant Sévigny sent a form to SPVM management, which was signed and returned to him. [ 147 ] Given the green light by management, Detective Sergeant Sévigny drafted the informations in accordance with s. 487 Cr. C.

He was not even aware of the provisions applicable to journalists. [ 148 ] He went before a presiding justice of the peace, who authorized each of the warrants without knowing that they concerned a journalist and a location that housed a media outlet, that is, the apartment where the applicant lived. [ 149 ] The search warrant for the apartment was executed on February 8, 2018 (signed on February 1, 2018).

On March 14, 2018, a presiding justice of the peace issued the search warrant to seize the applicant’s computer equipment when he was intercepted at the Montreal-Trudeau airport. [ 150 ] None of the warrants mentioned that the applicant was a journalist and that 4897 Queen Mary Road, apartment 10 likely housed a media outlet. [ 151 ] In the winter of 2019, during discussions with counsel responsible for this case, the police officer learned about the Cr. C. provisions concerning journalists.

The Journalistic Sources Protection Act had been in force since October 18, 2017. [ 152 ] As a result, the search warrants are invalid and should have been authorized under ss. 488.01 Cr. C. et seq. The resulting searches were unreasonable and infringed s. 8 of the Charter . The documents seized during the searches should have been handled pursuant to s. 488.02 Cr. C. had the judge considered it necessary to protect the confidentiality of the sources.

The protection of the confidentiality of journalistic sources also applies to “a warrant, authorization or order” in relation to the commission of an offence by a journalist. [11] [ 153 ] After assessing all of the circumstances of this case, the Court is of the view that this was a blatant ignorance of the law, both by Detective Sergeant Sévigny and the SPVM management, which is serious state misconduct. [ 154 ] In Lévesque Mandanici , [12] our Court of Appeal noted that police officers’ good faith is a significant factor at this stage of the analysis of the three Grant criteria. [ 155 ] Ignorance of the law cannot be raised to show the police officers’ good faith and if they misunderstood, it must have been a reasonable misunderstanding. [ 156 ] The Court of Appeal cited Larouche and added that good faith: [ translation ] “is not satisfied by blatant ignorance of the scope of its powers” ( the police officer’s powers ) [13] [Emphasis added]. [ 157 ] Although Detective Sergeant Sévigny appeared sincere, even honest about his ignorance of the law, that does not diminish the seriousness of the infringement.

However, although the Court cannot find that the police officer acted in good faith, it also cannot find that he acted in bad faith. [ 158 ] Moreover, the fact that SPVM superiors endorsed Detective Sergeant Sévigny’s approach even though the Criminal Code provisions had been in force since October 2017 increases the seriousness of the infringement.

[ 159 ] In Sylvain , [14] the Court of Appeal noted that in such circumstances, the courts must dissociate themselves from this type of practice. [ translation ] [ 70] Alternatively, the police officers’ superior and/or the narcotics unit gave the wrong directions as to the extent of the search and seizure powers associated with the plain view doctrine.

In such circumstances, the courts must absolutely dissociate themselves from such a practice, especially when endorsed by a specialized and experienced police department that must be aware of a well-established legal principle . [Citation omitted] [Emphasis added.] [ 160 ] In this respect, the Court of Appeal referred to Harrison , [15] where the Supreme Court stated: [25] …while evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor. [ 161 ] Additionally, the Court cannot find that the infringement in this case is technical.

To conclude as such would render s. 488.01 Cr. C. meaningless and ignore Parliament’s main purpose in enacting the Journalistic Sources Protection Act , that is, to govern the procedure for issuing warrants, authorizations, and orders relating to “a journalist’s communications or an object, document or data relating to or in the possession of a journalist... .” [16] [ 162 ] This Act goes beyond protecting journalistic sources.

As the Ontario Superior Court of Justice wrote in Canadian Broadcasting Corporation : [17] It also gives a measure of protection to the right of journalists to privacy in their gathering or dissemination of information. [ 163 ] Recently, this was confirmed by the Superior Court: [18] [ translation ] [297] Journalists’ right to confidentiality in gathering and disseminating information is a distinct confidentiality right from that of their sources. [ 164 ] Furthermore, the warrants should have been issued by a judge with exclusive jurisdiction to dispose of such applications, that is, a judge of a superior court of criminal jurisdiction or a judge as defined in s. 522 Cr.

C. [19] [ 165 ] Additionally, the judge hearing an application under s. 488.01(2) Cr. C. may impose conditions to protect the confidentiality of journalistic sources and to limit the disruption of journalistic activities. [20] [ 166 ] The provisions of s. 488.02 Cr. C. must be applied together with those of s. 488.01 Cr. C.

Once the warrant or order has been duly executed, and if an order has been rendered to protect the confidentiality of the sources, all of the documents thus obtained are placed by the Court in a sealed packet and kept in its custody in a place to which the public has no access. [21] No officer is to examine or reproduce, in whole or in part, a document without giving the journalist and relevant media outlet notice of his or her intention to examine or reproduce the document. [22] [ 167 ] The journalist or media outlet may, within 10 days of receiving the notice, “apply to a judge of the court that issued the warrant, authorization or order to issue an order that the document is not to be disclosed to an officer on the grounds that the document identifies or is likely to identity a journalistic source.” [23] [ 168 ] Therefore, not only were the search warrants in this case not issued by a judge with the requisite jurisdiction under s. 488.01(2) Cr.

C ., but there was also no condition ordered for their execution to protect the journalistic sources. Furthermore, the seized material was not handled in accordance with the provisions of s. 488.02 Cr. C. , which should have been the case had the judge been able to render an order under s. 488.01(6) Cr.

C. to protect the confidentiality of the journalistic sources. [ 169 ] In this respect, the respondent argues that the agents of the state handled the computer material with care and ensured that the integrity of the material was protected from the public. [ 170 ] Although the Court does not doubt the professionalism of the persons involved in handling the seized material, none of them knew that the apartment searched housed a media outlet where journalistic material might be found.

The presiding justice of the peace did not know that it was a media outlet and did not impose any particular conditions in the warrant in this regard. [ 171 ] Even if the Court were to find that the searches had been executed in accordance with standard practice and that the computer material seized was handled with great care, it could not find that this in any way supersedes the provisions of ss. 488.01 et seq. of the Criminal Code . [ 172 ] Indeed, it is the judge, not the police officers, who determines the conditions that will apply to protect the confidentiality of journalistic sources.

Once seized, the material must be sealed and examined only in accordance with the provisions of s.488.02 Cr. C. if an order was rendered pursuant to s. 488.01(6) Cr. C. , after giving the journalist and relevant media outlet notice. [ 173 ] Here, the computer material was handled and viewed by several persons without regard for the fact that it might contain

journalistic material, sensitive documents, or documents likely to reveal journalistic sources. [ 174 ] Even if the Court found that all the seized computer material should have been viewed in any case, as the respondent argues, it ought to have been done pursuant to conditions imposed by the Court and after hearing the applicant, had he requested to be heard.

However, he had no say in the matter. [ 175 ] The Court finds that the state conduct leading to the infringement of the Charter is serious and that it must necessarily dissociate itself from conduct that brings the administration of justice into disrepute. [ 176 ] This factor favours excluding the evidence. 2- The impact of the breach on the Charter -protected interests of the applicant [ 177 ] An examination of this criterion emphasizes the importance of the effect of the Charter infringement on the rights it guarantees.

It calls for an evaluation of the actual extent of the infringement on the interests protected by the right at issue. [ 178 ] This involves, among other things, searches executed at the applicant’s home and at the airport.

Police officers seized and viewed the computer material used for his personal and professional purposes in the conditions described above. [ 179 ] In Morelli , [24] the Supreme Court noted the invasiveness of the search and seizure of a personal computer: [2] It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer. [ 180 ] The use of the computer for personal and professional purposes also gives the applicant an expectation of privacy. [ 181 ] The Court finds from the whole of the evidence that the searches and seizures were executed pursuant to invalid warrants.

The analysis of the applicant’s personal and professional computer material breached ss. 488.01 et seq. Cr. C. [ 182 ] The Court must qualify the respondent’s argument that the applicant imperilled his sources at risk by using his computer to commit an offence. [ 183 ] Although the applicant did indeed imperil his sources by using his computer to commit an offence, that did not deprive him of the provisions under ss. 488.01 et seq. Cr.

C. , because they also apply to a journalist who may have committed an offence. [25] [ 184 ] The Court, however, is of the view that even if the police officers had complied with the provisions of ss. 488.01 et seq. Cr. C. , it is highly likely that the applicant’s journalistic activities and those of 45enord would have been disrupted.

The judge may include conditions in the warrant to limit the disruption of journalistic activities. [26] [ 185 ] Similarly, it is highly likely that the activities of 45enord would have stopped temporarily and that some publicity would have caused the impact described by the applicant. [ 186 ] In this respect, the police officers’ conduct did not exacerbate a situation that would have occurred anyway. [ 187 ] The Court finds from the whole of the evidence that the state’s conduct gives the impression that journalistic material and the confidentiality of sources are of little or no importance or of no actual use to citizens.

They are, however, the basis of investigative journalism and, more broadly, of freedom of expression. [ 188 ] The Court finds that the impact of the infringement of the applicant’s Charter- protected rights is significant and that it weighs in favour of excluding the evidence. 3- Society’s interest in an adjudication of the case on its merits [ 189 ] This third criterion is examined to determine whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion. [ 190 ] The offences with which the applicant is charged are serious and punishable by significant prison sentences.

Furthermore, they incur strong social censure. [ 191 ] The evidence obtained in violation of the Charter is reliable and essential to the respondent’s case. Without it, it no longer has any evidence in support of the charges. [ 192 ] Society’s interest in the adjudication of the case on its merits weighs in favour of admitting the evidence because it is very reliable and essential to the respondent.

Balancing the factors [ 193 ] As Lacoursière J. wrote in Bettez : [27] [ translation ] [117] In Morelli , Fish J. states that justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. He adds thatits reputation is inevitably tarnished when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

[118] It is clear that over the long term, admitting evidence obtained in such circumstances would undermine the public’s confidence. Indeed, admitting the evidence in this case would be tantamount to sending a message that, [ translation ] “the end always justifies the means, whatever they may be” . [Emphasis added.] [Citation omitted] [ 194 ] The Court adopts the remarks of Lacoursière J. [ 195 ] The police misconduct is serious. Admitting evidence obtained under the conditions described would send a message that the courts condone serious police misconduct and tarnish the reputation of the justice system.

The Court must necessarily dissociate itself from such conduct. [ 196 ] Balancing the factors analyzed above, the Court finds that using the evidence seized in this case would bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: GRANTS the motion to exclude evidence; DECLARES that the applicant’s Charter rights protected under s. 8 have been infringed; INVALIDATES the search warrants bearing numbers: - 500-26-105321-180 - 500-26-105431-187 - 500-26-105987-188 EXCLUDES the evidence obtained in violation of the Charter , in accordance with s. 24(2) . __________________________________ JOSÉE BÉLANGER, J.C.Q.

Mtre Jérôme Laflamme Director of Criminal and Penal Prosecutions Counsel for the respondent Mtre Claudia Morin Bérubé Counsel for the applicant Hearing dates: March 18, 2019, June 7, 2019, December 18, 19, 20, 2019