R. v. R.M.J.T., 2014 MBCA 36

Citation: R. v. R.M.J.T., 2014 MBCA 36 Date: 20140424 Docket: AR 13-30-07923 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) L. C. Robinson ) for the Appellant Respondent ) ) R. N. Malaviya and ) N. P. Steen - and - ) for the Respondent ) T. (R. M. J.) ) Appeal heard: ) November 1, 2013 (Accused) Appellant ) ) Judgment delivered: ) April 24, 2014 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). CAMERON J.A. Introduction [ 1 ] The accused is appealing his conviction on several sex-related offences. His appeal raises a number of issues surrounding the seizure of the accused’s computer from his home by the police and the seizure of CDs, a mini DV tape and a camcorder by a Child and Family Services child abuse investigator (the child abuse investigator).

First, did the seizures breach the accused’s s. 8 Charter right to be free from unreasonable search and seizure and, if so, should the evidence be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the Charter )? [ 2 ] Alternatively, was the police seizure authorized pursuant to s. 489(2) of the Criminal Code (the Code ), and was the seizure by the child abuse investigator authorized by s. 18.4(1) of The Child and Family Services Act , C.C.S.M., c.

C80 (the CFSA )? [ 3 ] The above are important questions in this case, where the accused appeals his convictions for sexual assault, sexual interference, surreptitiously observing or visually recording a person in circumstances that entailed a reasonable expectation of privacy (voyeurism), making child pornography and possessing child pornography, all in relation to his stepdaughter, the complainant. [ 4 ] For the reasons that follow, I would find that neither the seizure of the accused’s computer by the police nor the child abuse investigator’s seizure of the CDs, mini DV tape and camcorder constituted a breach of the accused’s s. 8 Charter right, as both were authorized by legislation.

Furthermore, even if the seizures did breach the accused’s right, I would not exclude the evidence pursuant to s. 24(2) of the Charter . Facts [ 5 ] By way of background, the accused met the complainant’s mother in 2005 while she was in Canada as a refugee claimant. They married that same year. In December 2006, the accused sponsored the complainant and her mother to come to Canada.

[ 6 ] In 2009, the complainant, who was then 14 years old, and her mother, learned that the accused had placed a web camera in a hidden location in the complainant’s bedroom. The camera appeared to be surreptitiously placed and connected to a computer which was used by the accused and the mother. The complainant did not use or have access to the computer.

Although the complainant confronted the accused about the discovery of the web camera, authorities were not contacted at the time. [ 7 ] In 2010, further allegations arose when the complainant advised her mother that the accused had sexually assaulted her and that he was sending her inappropriate emails. She showed copies of some of the emails to her mother. A decision was made that the complainant would speak with her guidance counsellor about the situation. [ 8 ] As a result of the complainant’s disclosure of the incidents, the child abuse investigator was assigned to interview the complainant.

During this interview, the complainant advised the child abuse investigator that she had discovered a second web camera in her bedroom. [ 9 ] Meanwhile, the mother sought assistance regarding the situation from a police officer whom she knew from her place of employment, Cst. Spridzans. A police investigation ensued, which resulted in Cst. Koreen and Cst. Olson being assigned to the case. Acting on instructions from their supervisor, Sgt. Barker, these officers approached the mother and requested her consent to seize the computer. [ 10 ] The mother agreed, and Cst. Koreen and Cst.

Olson drove her to the family home where she allowed them in and showed them where the computer was. The officers seized the computer. [ 11 ] Later the same day, the child abuse investigator went to the complainant’s residence to arrange for the accused to leave the home in compliance with a protection order that the mother had obtained after the officers seized the computer. The child abuse investigator advised the accused that he was required to leave the residence. While the accused was preparing his personal belongings, he attempted to take some CDs.

However, the child abuse investigator told him that he could not take them. [ 12 ] After the accused left, the child abuse investigator told the mother that she should look for and gather any discs, as the police would want them. The mother complied with this suggestion. The next day at the request of the mother, the child abuse investigator picked up a box containing CDs, a DV tape and camcorder (the boxed items) from the complainant’s residence and delivered it to Cst. Olson. [ 13 ] In March 2011, another officer obtained a warrant to search all of the seized items.

Found on the computer were fragments of emails to the complainant that were sexually explicit in nature. Further, the boxed items contained still images and videos from one of the hidden cameras in the complainant’s bedroom. The complainant was recorded in various states of undress, including being entirely nude. [ 14 ] At the trial of the matter, the accused challenged the admissibility of the evidence seized, but did not testify at the voir dire . However, he did testify in defence to the allegations and denied them in their entirety.

Decision of the Trial Judge The Voir Dire [ 15 ] After a voir dire concerning the admissibility of the evidence, the trial judge held that neither the seizure of the computer by the officers nor the seizure of the boxed items by the child abuse investigator infringed the accused’s s. 8 Charter rights. [ 16 ] Regarding the seizure of the computer, he correctly noted that the accused had a very high expectation of privacy in the information it contained. He stated that, because the computer was taken without prior judicial authorization, a presumption of unreasonableness arose which had to be rebutted by the Crown.

After reviewing the accused’s argument that the mother did not have the authority to consent to the seizure, the trial judge determined that it was not necessary for him to decide the issue. Rather, he held that the mother consented to the officers’ entry to her home and, once there, the officers had lawful authority to seize the computer, without warrant, pursuant to subss. 489(2)(

b) and (

c) of the Code . Those subsections of the Code authorize a police officer to make a warrantless seizure when the officer is “lawfully present in a place pursuant to a warrant or otherwise in the execution of duties” and “the officer believes on reasonable grounds” that the thing “has been obtained by the commission of an offence” or “will afford evidence in respect of an offence.” [ 17 ] Regarding the seizure of the boxed items by the child abuse investigator, the trial judge held that such a seizure was authorized by s. 18.4(1) of the CFSA . That

section provides that, where it is determined that a child is in need of protection, the child care agency shall take “such further steps as are required by [the CFSA ] or are prescribed by regulation or as the agency considers necessary for protection of the child.” In reaching his conclusion, the trial judge accepted that the child abuse investigator seized the boxed items based on her belief that they contained images of the complainant that would constitute child pornography, and that she had a duty to prevent any further dissemination of them to protect the complainant from further abuse.

He also accepted that part of her motivation for the seizure was to safeguard potential evidence of a crime. The Trial [ 18 ] In his oral reasons convicting the accused, the trial judge reviewed the evidence of the complainant, the mother, the child abuse investigator and the accused. He rejected the accused’s testimony on each of the five counts and found that it did not raise a reasonable doubt. In rejecting the accused’s testimony, the trial judge referred to fragments of emails retrieved from the accused’s computer that he found the accused had sent to the complainant.

In these emails, the accused referred to one occasion where he touched the complainant’s breast. In other emails, the accused expressed his sexual attraction to the complainant. Additionally, in one email, the accused asked the complainant to come into his bedroom wearing only a towel and stated that, if she refused, he would post a photo of her on Facebook.

[19] The trial judge explained why the complainant’s evidence that the accused had sexually assaulted her convinced himbeyond a reasonable doubt of the accused’s guilt on the charges of sexual assault and sexual interference. He determined that the onlyreasonable inference that he could draw from all the evidence was that the accused was also guilty of the charges of voyeurism, makingchild pornography and possessing child pornography. He concluded by entering a conditional stay with respect to the charge of sexualassault in accordance with Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729.

Grounds of Appeal [20] While the accused appeals his convictions on a number of grounds, those relevant to this appeal are: (1) that the trial judge erred in his determination that the seizure of the computer by the police was authorized by s. 489(2) of theCode and therefore not in breach of s. 8 of the Charter; (2) that the trial judge erred in his determination that the seizure of the boxed items by the child abuse investigator was authorizedby s. 18.4(1) of the CFSA; (3) that the trial judge erred when he held that, in the event he was wrong in his finding that there were no breaches of s. 8 of theCharter, he would have held the evidence to be admissible pursuant to s. 24(2) of the Charter. [21] The accused also appealed the trial judge’s findings of admissibility on the voir dire on the basis that the trial judgemisapprehended the evidence, in that he failed to recognize and reconcile contradictions in the evidence of the Crown witnesses.

Heclaims that this misapprehension played an essential part of the reasoning process that resulted in the admission of the evidence, therebyresulting in an unfair trial. However, a review of the record shows that the inconsistencies and corresponding credibility issues werefully argued at the voir dire and the trial judge made findings of fact regarding the inconsistencies. While I agree that the trial judge didnot engage in a detailed credibility analysis respecting each finding he made, it does not automatically follow that he misapprehended theevidence.

It is clear from the record that the trial judge did not place as much weight on the significance of the alleged inconsistencies aswas argued by the accused. Rather, he was more concerned with what he considered to be the real issues such as, whether, based on theevidence of the witnesses, the mother had the authority to consent to the seizure of the computer, the scope and application of s. 489(2)of the Code and the

interpretation of s. 18.4(1) of the CFSA. In this regard, his reasons for decision on the voir dire centered on thoseissues as opposed to credibility assessments of the Crown witnesses. Thus, for the above reasons, the trial judge did not misapprehendthe evidence, and I would dismiss this ground of appeal. [22] Finally, the accused appeals his convictions on the basis that the trial judge provided insufficient reasons for convictinghim, erred in his application of the test in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, and subjected the accused’sevidence to a higher degree of scrutiny than the Crown’s evidence.

At the oral hearing of this matter, the court expressed that the trialjudge’s reasons for conviction clearly explained why he found the accused guilty, that he did not err in his application of W.(D.), nor didhe hold the accused’s evidence to a higher degree of scrutiny than that of the Crown. Therefore, these grounds of appeal can bedismissed without further comment.

The First Ground of Appeal – the Seizure of the Computer Positions of the Parties [23] The accused correctly observes that, because the seizure of his computer was made without warrant, the onus shifts tothe Crown to prove that it was reasonable, that it was authorized by law and that the law itself is reasonable (R. v. Collins, (SCC), [1987] 1 S.C.R. 265). [24] The accused does not challenge the validity of s. 489(2) of the Code. Rather, he submits that the trial judge erred byinterpreting it too liberally.

In this regard, he states that the officers entered his house with the specific purpose of seizing the computerand not for any other unrelated purpose. He asserts that the application of legislation by the trial judge in such a circumstance wasunreasonable and unconstitutional in that it allowed the officers to circumvent the need for prior judicial authorization to enter and searchhis residence. [25] The accused observes that s. 489(2) of the Code is only a power to seize and does not authorize entry into a residence. Further, he argues that, in light of the Supreme Court of Canada decision in R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, a third partycannot consent to the infringement of another’s Charter rights and, therefore, the mother could not have consented to the officersentering and searching for the computer prior to seizing it. [26] Finally, the accused argues that, even if s. 489(2) of the Code applies to this case, the requirements of the

section werenot fulfilled in that there was no evidence that the police officers subjectively believed that the computer had been used in thecommission of an offence or would afford evidence in respect of the commission of an offence. [27] The Crown underscores that the accused did not challenge the validity of s. 489(2) of the Code. It maintains that thetrial judge appropriately applied the legislation to the facts of this case. Further, the Crown states that the more significant expectationof privacy in the computer was in its contents and that a warrant was obtained before the contents were searched.

Analysis Standard of Review [28] The standard of review to be applied in the determination of a Charter breach where an accused is appealing hisconviction was stated by Chartier J.A. (as he then was) in R. v. Farrah (D.), 2011 MBCA 49 at para. 7, 268 Man.R. (2d) 112. First, thecourt will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in theirapplication. This raises questions of law and the standard of review is correctness. Next, the court will review the evidentiary

foundation which forms the basis for the trial judge’s decision to see whether there was an error. On this part of the review, the trialjudge’s decision is entitled to deference. Finally, the court will examine the application of the legal principles to the facts of the case tosee if the facts, as found by the trial judge, satisfy the correct legal test. In the criminal law context, this is a question of law and thestandard of review is correctness. Consent to Seize [29] At the trial, the parties forcefully argued whether the mother lawfully consented to the seizure of the computer.

Thetrial judge declined to rule on the issue. A review of his reasons in light of the record indicates that he was concerned that, because shehad limited access to the computer, the mother might not have had the requisite authority or a sufficient privacy interest in it to consent toits seizure. Given the trial judge’s factual concerns and my finding that the officers lawfully seized the computer pursuant to s. 489(2) ofthe Code, it is not necessary to determine whether, on the facts of this case, the mother was capable in law of consenting to the seizure ofthe computer.

Interpretation of Section 489(2) [30] Section 489(2) of the Code provides: Seizure without warrant 489(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal orprovincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a placepursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes onreasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [31] The accused denies that he is arguing that s. 489(2) of the Code imports the conditions precedent to the common-lawdoctrine of plain view seizure. However, his argument that, in order to be Charter compliant, the seizing officer must be engaged in alawful activity for a purpose unrelated to the seizure, is premised upon the very condition required for a lawful “plain view” seizure. [32] The purpose of s. 489(2) of the Code is the preservation of evidence. In the recent case of R. v.

Frieburg (T.), 2013MBCA 40, 294 Man.R. (2d) 1, Beard J.A., writing on behalf of the court, reviewed the jurisprudence regarding s. 489(2) of the Code andthe doctrine of “plain view,” stating (at para. 63): The following is a concise

summary of the plain view doctrine, as set out in R. v. Jones (R.) (2011), 2011 ONCA 632 , 285O.A.C. 25; 107 O.R. (3d) 241; 2011 ONCA 632 (at para. 56): The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfullyauthorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power issubject to the following restraints, however: (

i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of theauthorities); (ii) The nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) The evidence must have been discovered inadvertently;

(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permitan exploratory search to find other evidence of other crimes. [emphasis added] [33] Next, she noted the different approaches courts have taken in interpreting s. 489(2) of the Code in relation to the plainview doctrine (at paras. 65-67): In R. v.

Le (T.D.) (2011), 2011 MBCA 83 , 270 Man.R. (2d) 82; 524 W.A.C. 82; 2011 MBCA 83, this court found that s.489(1) (which is similar to s. 489(2) except that it applies to items that are not specified in a search warrant but that are seized whileexecuting a search warrant) and the plain view doctrine are not coextensive. The Courts of Appeal of Alberta and Ontario have bothcome to this conclusion regarding s. 489(2). (See R. v. Makhmudov (R.) et al. (2007), 2007 ABCA 248 , 417 A.R. 228; 410W.A.C. 228; 2007 ABCA 248, at para. 19; R. v.

Bottineau (E.) et al. (2011), 2011 ONCA 194 , 276 O.A.C. 173; 2011 ONCA194, at paras. 75-77, leave to appeal denied [2011] S.C.C.A. No. 455; (2012), 432 N.R. 391; 295 O.A.C. 398 (S.C.C.), and Jones, atpara. 58.) The Court of Appeal of Québec has come to the contrary conclusion. (See R. v. Boudreau-Fontaine, 2010 QCCA 1108, atpara. 50, and R. v. L’Espérance, 2011 QCCA 237, at para. 36.) [34] Beard J.A. concluded that, properly interpreted, s. 489(2) of the Code is a self-contained provision that does not requirethe seizing officer to meet all of the requirements of the plain view doctrine (see para. 67).

Thus, it is only the test as set out in s. 489(2)that must be met. [35] The above conclusion is the same as that reached by the trial judge. That is, unlike the plain view doctrine, it is notnecessary for the evidence seized to have been discovered in the course of a search in an unrelated investigation. Failure to incorporatethis requirement does not make the application of s. 489(2) of the Code unconstitutional.

Indeed, in Frieburg, the seizure of drugs inquestion resulted from a drug dog sniffer search. [36] The accused tries to distinguish the jurisprudence relied on by Beard J.A. on the basis that, in those cases, the policewere either executing a search warrant or were in a public place when the evidence was discovered, whereas in this case, the officerswere in a private home. [37] In my view, place of seizure alone cannot render the legislation constitutionally inapplicable. The issue is not simplythe place where the officers were, but whether they were lawfully there.

The requirement of legality is a safeguard enhancing theconstitutionality of the legislation and its application. [38] Based on the above, the trial judge did not err by applying s. 489(2) of the Code in this situation. Application of Section 489(2) of the Code [39] The accused argues that, if s. 489(2) of the Code is applicable in this circumstance, the requirements of the legislationhave not been met for two reasons.

First, the officers were not lawfully in his dwelling house and, second, there was no evidence thatthey had the necessary subjective belief required for a finding that they had reasonable grounds to believe that the computer had beenused in the commission of an offence or that it would afford evidence in respect of an offence. [40] The trial judge dismissed both arguments, stating (at para. 31): …. The officers were lawfully in the home having been given access to it by [the mother]. Her consent to them entering her home wasboth voluntary and informed.

They were in execution of their duties investigating serious crimes. Finally, on the basis of theinformation they had received from Sgt. Barker and [the mother], they believed on reasonable grounds that the computer tower had beenused in the commission of an offence and would afford evidence in respect of an offence under the Criminal Code.

a) Unlawful Entry [41] As earlier indicated, the accused maintains that, based on the decision in Cole, the mother was not capable in law ofconsenting to the entry of the family home by the officers to seize the computer. [42] In Cole, the Supreme Court of Canada held that a school principal could not consent to a police search of the contents ofa computer assigned to a teacher for employment purposes. In reaching that conclusion, Fish J., for the majority, stated (at paras. 78-79): For consent to be valid, it must be both voluntary and informed.

The adoption of a doctrine of third party consent in this country wouldimply that the police could interfere with an individual’s privacy interests on the basis of a consent that is not voluntarily given by therights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice.

I would therefore reject the Crown’s contention that a third party could validly consent to a search or otherwise waive a constitutionalprotection on behalf of another. [43] It must be remembered that, in Cole, Fish J. was dealing with informational privacy in the content stored in a computer. As he noted, the expectation of privacy in such information is high (at paras. 47-48): Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of ourfinancial, medical, and personal situations” [R. v.

Morelli, 2010 SCC 8 at para. 105, [2010] 1 S.C.R. 253]. This is particularly the casewhere, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities,recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” …. This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter. [44] The issue in this case is not whether the mother could consent to the officers searching the contents of the computer.

Rather, it is whether the mother could have consented to the officers’ entry into the family residence. The law in that regard was notaddressed in Cole. [45] The law regarding consent to enter a dwelling house to arrest was recently considered by this court in Tymkin v. Ewatskiet al., 2014 MBCA 4, 299 Man.R. (2d) 294. In Tymkin, the plaintiff sued the Police Chief and individual police officers, claiming thathe had been unlawfully arrested.

He claimed that the police breached his s. 8 Charter right to be safe from illegal search and seizurewhen they relied on the consent of a third party to enter his residence to arrest him. [46] In that case, Marc Monnin J.A. (in dissent in the case, but agreed with on this point by Chartier C.J.M., writing for themajority) specifically noted that consent to enter for the purpose of an arrest was an exception to the requirement for police to obtain aFeeney warrant (R v. Feeney, (SCC), [1997] 2 S.C.R. 13).

In describing the nature of consent required, he analyzedManitoba jurisprudence and ultimately concluded (at para. 89): Where police seek to rely upon a consent to enter the premises to effect an arrest, they must rely upon a valid one. The requirements for avalid consent include that:

a) it must be given by someone who has a privacy interest in the premises (see Guiboche; Young v. Ewatski (2012), 2012 MBCA 64, 280 Man.R. (2d) 239; 548 W.A.C. 239; 2012 MBCA 64; and Feeney); and

b) the consent must be an informed one (see Wills [(1992), (ON CA), 7 O.R. (3d) 337] and M.C.G. [2001 MBCA178, 160 Man.R. (2d) 131]). [47] It should be noted that Tymkin was decided after, and referred to, the Cole decision. [48] While Tymkin dealt with the law in the context of arrest, the law regarding entry to search is summarized in Scott C.Hutchison et al., Search and Seizure Law in Canada, looseleaf (Toronto: Thomson Canada Limited, 2005) vol. 1 at ch. 7 (at pp. 7-12.7 –7-13, 7-15 – 7-16): In order to determine who may consent to a search, the guiding principle must be the ‘reasonable expectation of privacy’ referred to bythe Supreme Court in Hunter v.

Southam Inc. [ (SCC), [1984] 2 S.C.R. 145]. If an individual would not reasonablyexpect another person to be able to authorize a search, th[e]n that person cannot consent to a search. The question is one of fact and doesnot turn upon the relationship between the consenter and the suspect. Thus, where a suspect is living with a parent and there are norestrictions as to the parent’s rights to use the residence, the parent may consent to a police search of the residence.

On the other hand,where persons sharing a residence have private areas not accessible to other residen[t]s, a search of the private areas can be consented toonly by the person controlling that area. … The question of third party consents remains, then, in the realm of the reasonable, to be assessed against the measure of what it replaces,the judicially authorized search.

See also R. v. Woldrich (C.J.) (1997), (MB KB), 122 Man.R. (2d) 231 at paras. 22-24 (Q.B.), aff’d on other grounds(1998), (MB CA), 126 Man.R. (2d) 157 (C.A.); R. v. Gregson, [1985] O.J. No. 1474 at para. 1 (QL) (C.A.); R. v.Squires (E.), 2005 NLCA 51 at para. 34, 249 Nfld. & P.E.I.R. 14, leave to appeal to S.C.C. denied, [2005] S.C.C.A. No. 561 (QL); R. v.Meyers (1987), (AB KB), 78 A.R. 255 at paras. 39, 41, 45; R. v. King (A.G.) (1993), (NL SC), 114Nfld. & P.E.I.R. 353 at paras. 14-19 (S.C. (T.D.)). [49] Regarding consent to enter to search, in the recent case of R. v.

T.W.B., 2012 MBCA 7, 275 Man.R. (2d) 157, this court,in obiter, expressed concern about the trial judge’s finding of a s. 8 Charter breach in circumstances where the accused’s mother calledpolice to report that her son had a gun in the house and authorized the accused’s step-grandmother to provide police with access to thehouse to search because the mother was unavailable.

In commenting on the Crown’s appeal of the trial judge’s order excluding theevidence, Michel Monnin J.A. wrote (at para. 18): Although the Crown has not appealed the judge’s finding that the accused’s s. 8 Charter rights were breached, I am far from convincedof the correctness of that decision in as far as the accused’s expectation of privacy is concerned.

Notwithstanding my reservations, Irespect the Crown’s decision not to appeal that portion of the judge’s decision and, accordingly, will deal only with the exclusion of theevidence under s. 24(2) of the Charter. [50] This comment was made in recognition of the fact that courts have found a reduced expectation of privacy in certainshared areas of dwelling houses. It must be remembered that s. 8 of the Charter only protects a reasonable expectation of privacy andthere are varying degrees of privacy. The higher the expectation of privacy, the greater the claim to constitutional shelter: R. v.

Tessling,2004 SCC 67 at paras. 19-21, [2004] 3 S.C.R. 432. Indeed, in T.W.B., the gun in question was located in the duct work of the mother’shome and therefore not in an area with a heightened expectation of privacy. [51] In light of the above, had the Supreme Court of Canada in Cole intended to diminish the developing law respectingconsent to enter a dwelling house, in my view, it would have said so in clearer terms. Contrary to the accused’s argument, it did not do sobecause that was not the issue before it. [52] In this case, it is uncontested that the computer was located in a shared area of the home.

In consideration of the factthat the mother was the wife of the accused and lived in the home, in my view, she had the authority to provide consent to enter the areawhere the computer was located. The trial judge found that the mother provided informed consent, and I see no reason to disturb hisfinding. Therefore, the entry was authorized by law.

b) Reasonable and Probable Grounds to Seize [53] The question of whether police have reasonable and probable grounds is a question of law and, therefore, to bereviewed on a standard of correctness. R. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527. [54] In order for there to be reasonable grounds, there must be a subjectively held belief by the police as well as a readilyascertainable objective belief (Shepherd at para. 17; R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at 250-251). [55] The accused urges this court to find that the trial judge erred when he inferred that the officers had a subjective beliefthat there existed reasonable grounds to believe that the computer was used in the commission of an offence and that it would affordevidence of an offence. He argues that neither Cst. Koreen nor Cst. Olson testified as to their subjective belief.

Also in support of hisposition, he argues that the officers were not relying on s. 489(2) of the Code to justify the seizure, but rather, the consent of the mother. [56] The above issue raises two questions. The first is whether, in law, a trial judge can infer subjective belief as to theexistence of reasonable grounds where the police officer does not specifically testify as to such a belief.

The second question is whethers. 489(2) of the Code can apply when the police officer testifies that a seizure was not founded on that section, but rather, on a differentbasis (such as consent). [57] Both of these questions can be answered in the affirmative. Regarding the inference that a police officer had asubjective belief that reasonable grounds existed, courts have held that such an inference is possible if supported by evidence. In therecent case of R. v.

Jacob (J.A.), 2013 MBCA 29, 291 Man.R. (2d) 135, Beard J.A. considered the question of whether the court couldinfer reasonable grounds to make a breathalyzer demand where there was no direct evidence that the police officer who made thedemand had the subjective belief that the screening device was an approved screening device. In answering the question in theaffirmative, she undertook an extensive analysis regarding the law of reasonable grounds.

She summarized it as follows (at para. 35): ….. - there are two components to reasonable grounds - whether the police officer had a subjective belief, honestly held, that he hadreasonable grounds to arrest or to demand a breath sample and whether a reasonable person in the position of the police officer wouldconclude that there were reasonable grounds for the arrest or the demand;

- in weighing the evidence, the court should take into account the totality of the circumstances known to the police officer and shouldnot examine and test each piece of evidence and each factor individually; - the question is not whether the facts, circumstances and inferences ultimately prove to be true, but whether it was reasonable for thepolice officer to believe, at the time, that the facts and circumstances were true, to draw the inferences that were drawn and to rely onthem at the time of the arrest or the breathalyzer demand; - the standard of proof for reasonable grounds to believe is not high or particularly onerous - it has been referred to as “credibly-basedprobability,” which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower thanproof on a balance of probabilities (the civil standard) or proof of a prima facie case. [58] She continued to observe (at para. 36): These rules apply equally to facts and circumstances that are a requirement of the Code, whether that is the requirement for bodily harmthat was at issue in Grotheim [2001 SKCA 116, 213 Sask.R. 141], the requirement that the accused have care and control of the vehiclethat was at issue in Trask [(1987), (NS CA), 81 N.S.R. (2d) 376 (S.C. (A.D.))], or the requirement that the screeningdevice used was an approved device, as in this case. [59] In this case, it must be noted that the accused did not argue that there was no objective basis for the belief.

He simplystated that the subjective belief could not be inferred. I disagree. [60] A review of the evidence shows that, prior to the seizure of the computer, Cst. Spridzans had discussed the allegationstwice with the mother and once with the child abuse investigator. He learned from the mother that the complainant had alleged that theaccused sexually assaulted her and he was aware from the mother that a web camera had surreptitiously been installed in thecomplainant’s bedroom. He learned from the child abuse investigator that the wiring to the web camera was linked to the computer thatwas used by the accused.

Based on this evidence, and after consultation with Sgt. Barker, it was decided that a request should be madeto allow police entry to seize the computer. In support of this decision, Cst. Spridzans reinterviewed the mother and asked her questionsconcerning the location and use of the computer in order to determine whether she had authority over it and whether it was in a sharedspace in the home. [61] After meeting with the mother, Cst. Spridzans met with Cst. Koreen and Cst. Olson and told them “of the situationoverall and what [they] had learned.” [62] Constable Koreen testified that he had spoken with Sgt.

Barker who told him about the allegations of sexual assault,that there was a surreptitious recording and that it may be on the computer. He reinforced his understanding of the situation in hisconversation with the mother when he sought her consent to enter the family home and seize the computer. [63] All of the above provided sufficient evidence on which the trial judge could infer that Cst. Koreen and Cst.

Olsonsubjectively believed there were reasonable grounds to believe that the computer was used in the commission of an offence and/or that itwould afford evidence of an offence. [64] With respect to his argument that the officers could not have had subjective belief for a seizure pursuant to s. 489(2) ofthe Code on the ground that neither officer attempted to rely on that

section as justification for the seizure, I would simply note that sucha failure is not fatal to the application of the section. Jurisprudence has demonstrated that a seizure made under mistaken authority is notnecessarily fatal where authority otherwise exits. For example, in R. v. Miller (1987), (ON CA), 62 O.R. (2d) 97(C.A.), the police seized a bandage from an accused pursuant to a search warrant. However, there was no power to grant such a warrantat the time. Nevertheless, the court held that the seizure was authorized as incident to arrest and therefore not in violation of s. 8 of theCharter.

In reaching this conclusion, Goodman J.A. stated (at p. 103): In my view, the fact that the investigating officer misconceived his right to seize the bandage as incident to the lawful arrest andpurported to seize under an invalid warrant is not a conclusive factor in determining the validity of the search or seizure. If the right toseize the bandage is valid independent of the warrant, the warrant may be regarded as surplusage. [65] More recently, the case of R. v.

Makhmudov (R.) et al., 2007 ABCA 248, 417 A.R. 228, involved circumstances wherean officer detected the smell of marijuana on the zippers of two identical bags during the accused’s journey from Vancouver to Toronto. The bags were temporarily seized pending identification of ownership. After identifying themselves as owners, the accused werearrested and charged, and the bags were searched. Restricted guns, ammunition and drugs were found in the bags.

The trial judge foundthat the arrest was lawful, and the interim seizure of the bags without a warrant was carried out by a police officer in the execution of hisduty and for the purpose of preserving evidence. On appeal, the accused argued that the initial temporary seizure of the bags was notauthorized under s. 489(2) of the Code.

[66] The court dealt with the argument pertaining to s. 489(2) of the Code, stating (at para. 18): The initial, temporary seizure of the bags was not unlawful. After smelling marijuana, the police officer had reasonable grounds tobelieve the bags contained marijuana. The officer testified that the seizure was to preserve that evidence. The police officer’s lack ofknowledge of, and failure to cite the particular provision of the Criminal Code, was not fatal. Section 489(2) permits a police officer inthe execution of his duty to seize things that he believes, on reasonable grounds, have been used in the commission of an offence or willafford evidence in respect of an offence. Here, the

section was satisfied and the seizure was lawful. [emphasis added] [67] In this case, I have already held that the officers met the requisite conditions to seize the computer pursuant to s. 489(2)of the Code. The fact that they did not state that they were relying on that

section is not fatal.

Also not fatal is the fact that they wererelying on different authority, that being the consent of the mother, to seize. [68] I agree with the trial judge’s observation that, rather than being unconstitutional, the actions of the officers in seizingthe accused’s computer and subsequently obtaining a warrant to search its contents are in compliance with what Fish J. stated in Cole (atpara. 65): The police may well have been authorized to take physical control of the laptop and CD temporarily, and for the limited purpose ofsafeguarding potential evidence of a crime until a search warrant could be obtained. ….

And also see R. v. Vu, 2013 SCC 60 at para. 49, [2013] 3 S.C.R. 657. [69] Therefore, based on all of the above, the trial judge did not err in finding that the officers lawfully seized the computerpursuant to s. 489(2) of the Code. The Second Ground of Appeal – the Seizure by the Child Abuse Investigator The Positions of the Parties [70] The accused argues that, when the child abuse investigator seized the boxed items, she was not acting independently,but in concert with, and as an agent for, the police.

Further, he contends that the trial judge erred in interpreting s. 18.4(1) of the CFSA ina manner that provided authority to the child abuse investigator to seize the boxed items. Finally, he argues that, if the boxed items wereseized for a proper legislative purpose, law enforcement cannot later claim the “fruits of the search” without prior judicial authorization. [71] The Crown argues that the trial judge did not err when he held that the seizure was reasonable in order to preventpossible further dissemination of the images and for the purposes of safeguarding potential evidence of a crime.

Further, the Crownmaintains that the police did not claim the “fruits of the search” without prior judicial authorization because they obtained a searchwarrant prior to accessing the contents of the boxed items. Analysis Was the Child Abuse Investigator Acting as a Police Agent at the Time of the Seizure? [72] It is helpful to commence the discussion with an examination of whether the child abuse investigator was acting as apolice agent at the time she seized the boxed items.

If she was acting as a police agent, then the constitutional standard in Hunter et al. v.Southam Inc., (SCC), [1984] 2 S.C.R. 145, would apply and the warrantless seizure would be considered to be primafacie unreasonable (at p. 161). Also see R. v. M. (M.R.), (SCC), [1998] 3 S.C.R. 393 at para. 56. [73] While the law with respect to whether an individual is acting as a police agent has been addressed by the Supreme Courtof Canada in several cases, perhaps the most relevant to this case is M. (M.R.). In that case, the court considered the search of a studentby a school authority.

Cory J., writing for the majority on this issue, identified the test to be used (at para. 29): The issue as to whether an individual is acting as an agent of the police was considered by this Court in R. v. Broyles, (SCC), [1991] 3 S.C.R. 595. While that case involved a police informer, the essential elements of the test applied in that case are equallyapplicable to the case at bar.

There it was said at p. 608: Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materiallydifferent from what it would have been had there been no such relationship should the informer be considered a state agent for the

purposes of the exchange .... [W]ould the exchange between the accused and the informer have taken place, in the form and manner inwhich it did take place, but for the intervention of the state or its agents? ….. [74] Cory J. also discussed the issue of cooperation between the individual and the police, stating (at para. 28): The mere fact that there was cooperation between the vice-principal and the police and that an officer was present during the search isnot sufficient to indicate that the vice-principal was acting as an agent of the police.

The trial judge stated that there was an “agreedstrategy” between [the vice-principal] and [the police] that resulted in [the vice-principal] acting as a police agent. With respect, there isno evidence to support this conclusion. There is no evidence of an agreement or of police instructions to [the vice-principal] that couldcreate an agency relationship. See also R. v. Buhay, 2003 SCC 30 at paras. 29-30, [2003] 1 S.C.R. 631. [75] In the present case, the trial judge determined that the child abuse investigator “was not acting as a police agent butsimply carrying out her duties under the [CFSA]” (at para. 40).

He had previously found as a fact that the child abuse investigator hadtold the mother to look for other discs and that, after gathering the boxed items, the mother called the child abuse investigator to ask ifthe police could pick them up. The trial judge found that the child abuse investigator contacted Cst. Olson, but upon being told that hecould not pick the boxed items up that day, she agreed to deliver them to him.

He also indicated that it was the child abuse investigatorwho felt that it was necessary to give physical control of the boxed items to the police. [76] Further, the child abuse investigator testified that she had originally prevented the accused from taking the discs fromthe residence because she believed there was child pornography involving the complainant on those items.

Despite the fact that the childabuse investigator agreed that she was also preserving the evidence for the police, she stated that her actions were taken primarilypursuant to her authority under the CFSA, to protect the complainant from further harm or abuse. [77] Although the trial judge did not discuss the test or principles relating to police agents as set out above, it is clear fromthe evidence that his conclusion that the child abuse investigator was not acting as a police agent was well founded.

The child abuseinvestigator initiated the collection of the boxed items without direction or advice from the police. Rather, she believed that she had theauthority to prevent the accused from taking the items pursuant to her obligation under the CFSA to protect the complainant. Althoughthere was some cooperation between Cst.

Olson and the child abuse investigator in relation to the delivery of these items, there was noevidence of any police strategy to have the child abuse investigator seize these items from the accused’s house. [78] I would also note that the child abuse investigator’s actions in telephoning Cst. Olson and asking him to take the boxeditems from her are consistent with her duties under the Child Abuse Regulation, Man. Reg. 14/99.

Section 2 of that Regulation requiresthat, where an agency suspects that a child is or may be abused, the agency shall notify and consult with an appropriate police officer forthe area as to the particulars of the case and share all relevant information with the police officers involved in the investigation of thecase to ensure the best course of action for the protection of the child is taken. To be clear, this

section does not make a child protectionworker a police agent, but rather, speaks to the desire that various agencies engaged in the protection of the public cooperate. [79] Therefore, the trial judge did not err when he concluded that the child abuse investigator was not acting as a policeagent regarding the seizure of the boxed items. [80] However, the above conclusion simply means that the seizure by the child abuse investigator is not automaticallysubject to the same constitutional standard as the police and therefore prima facie unreasonable.

While not acting as a police agent, theseizure by the child abuse investigator did constitute a state action and, as a result, is still subject to Charter scrutiny. New Brunswick(Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46 at para. 65. Therefore, furtheranalysis is required to determine whether a child protection worker is authorized by law to seize evidence in child protection matters atall and, if so, the constitutional standard to be applied.

Child Protection Worker’s Authority to Search and Seize [81] As noted earlier, a search will be reasonable under s. 8 of the Charter if it is authorized by law, if the law itself isreasonable and if the manner in which the search was carried out is reasonable.

Thus, the first step in the analysis is to determinewhether the search or seizure is authorized by law. [82] The trial judge held that the child abuse investigator’s seizure of the boxed items was authorized pursuant to s. 18.4(1)of the CFSA which states: Agency to investigate 18.4(1) Where an agency receives information that causes the agency to suspect that a child is in need of protection, the agency shallimmediately investigate the matter and where, upon investigation, the agency concludes that the child is in need of protection, the agency

shall take such further steps as are required by this Act or are prescribed by regulation or as the agency considers necessary for protection of the child. [emphasis added] [ 83 ] In M. (M.R.) and Cole , the Supreme Court of Canada held that, pursuant to their general duties under provincial education legislation to protect students and provide a safe and orderly learning environment, and especially given the problems in recent years with drugs and weapons in the schools which threaten the safety of students, school authorities had an implicit authority to search for and seize items in that environment. [ 84 ] In M. (M.R.) , the court found an implicit power to search a student.

In reaching this conclusion, Cory J. wrote (at para. 51): …. There is no specific authorization to search provided in the Education Act , R.S.N.S. 1989, or its regulations. Nonetheless, the responsibility placed upon teachers, and principals to maintain proper order and discipline in the school and to attend to the health and comfort of students by necessary implication authorizes searches of students. See s. 54(

b) and Regulation 3(7) and (9). Teachers must be able to search students if they are to fulfil the statutory duties imposed upon them. It is reasonable, if not essential to provide teachers and principals with this authorization to search. …. [ 85 ] In Cole , the court held that the school authority had an implicit power to seize and search a computer issued to a teacher. Fish J., for the majority, stated in obiter (at para. 62): …. The principal had a statutory duty to maintain a safe school environment ( Education Act , R.S.O. 1990, c.

E.2, s. 265), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student. This implied power is not unlike the one found by the majority of this Court in M. (M.R.) , at para.51. [ 86 ] Thus, in M. (M.R.) and Cole , the Supreme Court of Canada determined that the legal authority to search or seize need not be explicitly provided in the legislation. [ 87 ] In reaching its determination in both of the above cases, the Supreme Court of Canada considered:

a) the purpose of the legislation;

b) the specific legislative provisions; and,

c) the operating requirements of the legislative scheme in the determination of whether an implied authority to search or seize arises. In essence, the issue is one of statutory

interpretation.

a) The Purpose of the CFSA [ 88 ] One of the primary purposes of the CFSA is to protect children. Clause 1 of the “Declaration of Principles,” found at the beginning of the CFSA , states: The safety, security and well-being of children and their best interests are fundamental responsibilities of society. Also see ss. 4(1) (

i) and 7(1) (

e) of the CFSA .

b) The Legislative Provisions [ 89 ] To repeat, s. 18.4(1) of the CFSA provides: Agency to investigate 18.4(1) Where an agency receives information that causes the agency to suspect that a child is in need of protection, the agency shall immediately investigate the matter and where, upon investigation, the agency concludes that the child is in need of protection, the agency shall take such further steps as are required by this Act or are prescribed by regulation or as the agency considers necessary for protection of the child .

[emphasis added] [ 90 ] The provision that the agency “take such further steps” is properly characterized as a residual clause.

It suggests that the Legislature intended to provide child protection workers with discretionary powers not explicitly provided in the CFSA which can be used if the child protection worker concludes that a child is in need of protection and if necessary for the protection of the child. [ 91 ] Section 17(1) of the CFSA states that “a child is in need of protection where the life, health or emotional well-being of the child is endangered by the act or omission of a person.” [ 92 ] Section 17(2) gives examples of when a child may be in need of protection and includes situations where a child “ is abused or is in danger of being abused, including where the child is likely to suffer harm or injury due to child pornography ” (at s. 17(2) (c)) (emphasis added). [ 93 ] Where an agency receives information that a child may be in need of protection, the agency must immediately investigate the matter and, if the agency concludes that the child is in need of protection, then the agency must take “such further steps … as the agency considers necessary for protection of the child” (at s. 18.4(1)). [ 94 ] One of the steps which an agency can take is to apprehend the child and take the child to a place of safety (see s. 21(1)).

Apprehension may take place without a warrant where the agency reasonably believes that the child may be subject to serious harm or the risk of serious harm ( Winnipeg Child and Family Services v. K.L.W . , 2000 SCC 48 at para. 104 , [2000] 2 S.C.R. 519 ).

Section 21(2) authorizes the entry into any premises without a warrant where the child is in immediate danger or has been abandoned. [ 95 ] Where the agency believes on reasonable and probable grounds that a person has subjected a child to abuse or is likely to do so, the CFSA also authorizes an agency to apply for a court order that the person cease living in the same premises as the child and refrain from contacting the child (see s. 20(1)). However, the agency must give seven clear days notice of the hearing of any such application (see s. 20(2)).

Thus, a CFS worker has no power to require an occupant of the premises to immediately leave the premises and refrain from reattending prior to a hearing in which a judge makes such an order.

c) Operational Requirements [ 96 ] In terms of the operational context of child protection proceedings, in K.L.W , the Supreme Court of Canada indicated that there are specific evidentiary difficulties and time pressures associated with child protection situations and has recognized that there is a need for preventative as well as protective state intervention with respect to children (see para. 99).

In particular, the court noted that the evidentiary difficulties in the child protection context arise from the fact that child protection situations almost always occur within the intimacy of private homes (see para. 100). Furthermore, the court noted that child protection workers are inevitably called upon to make highly time-sensitive decisions in situations where it is often difficult to determine whether a child is at risk of imminent harm or at risk of non-imminent, but serious harm (see para. 100).

Finally, the Supreme Court of Canada indicated that it is also important to recognize that the state must be able to take preventative action to protect children, meaning that the state should not always be required to wait until a child has been seriously harmed before being allowed to intervene (see para. 102). [ 97 ] In the context of an allegation of child pornography, these concerns are heightened.

With child pornography, there is the additional evidentiary difficulty which arises from the fact that digital images and recordings can be concealed from others in computer files and discs, which can be easily and quickly removed to another location.

In addition, pornographic images and recordings can be easily and quickly distributed to others by email and via the internet, thereby placing the child in question at further risk of serious mental and emotional harm by having pornographic images replicated and widely distributed. [ 98 ] In light of the residual nature of s. 18.4(1) of the CFSA , the purpose and scheme of the legislation and its operating requirements, and keeping in mind that child protection workers are specifically empowered to act where a child is likely to suffer harm or injury due to child abuse including pornography, it is my view that child protection workers must be able to respond quickly and effectively in situations where they believe on reasonable grounds that computer files or discs contain child pornography.

As I have explained, given the nature of child pornography, the mere apprehension of the child will not protect the child from the risk of serious harm, as the alleged perpetrator would still have the means and opportunity to quickly and easily remove the computer, the files or the discs from the home or distribute the images once the child protection worker apprehends the child.

As the child protection worker has no power to require the alleged perpetrator to immediately leave the house and refrain from returning, the child protection worker would be unable to prevent any dissemination of the images or recordings.

It is therefore reasonable, if not essential, that child protection workers have the authority to seize items when they believe, on reasonable grounds, that those items contain images or recordings of child pornography. [ 99 ] Thus, although there is no specific authorization given to child protection workers to seize evidence, s. 18.4(1) of the CFSA , for the reasons I have stated, by necessary implication, authorizes child protection workers to seize child pornography for the protection of the child. To be clear, this case deals with a seizure and not a search.

Powers conferred on child protection workers to search (if any) are beyond the scope of this decision and better left for another case, should the issue arise. [ 100 ] In reaching the above conclusion, I am aware that there are a number of cases wherein courts have refused to fin d an implied authority in the context of child protection proceedings. For example, in R. v. P.B. , 2011 ONSC 4559 (QL) , the court concluded that a child protection worker did not have implied authority to search for a gun alleged to be in the mother’s closet when investigating an allegation that a child was in need of protection .

In reaching its conclusion, the court stated (at para. 52) : Essentially it is the Crown’s position that if [child protection] workers are statutorily authorized to apprehend children under the CFSA , then they have the incidental authority to take reasonable steps to ascertain whether a child is in fact at risk. This reasoning is circular

and not a correct characterization of the effect of

Section 78 on powers derived from the CFSA .

Section 78 would bestow powers on [child protection] workers to affect the apprehension of a child once grounds for an apprehension have crystallized.

Section 78 does not grant additional powers to ascertain whether the requisite grounds to apprehend exist. [ 101 ] Essentially , therefore, the above case indicates that a child protection worker is not entitled to search for evidence in order to establish that a child is in need of protection. However, as I have explained, this is not the issue in the present case.

In the present case, the issue is whether the child protection worker is entitled to seize evidence after determining that the child is in need of protection. [ 102 ] Another case from Ontario in which the court decided that a child protection worker did not have implicit authority to search for evidence after determining that the child was in need of protection is Chatham-Kent Children’s Services v. J.K . , 2009 ONCJ 589 , 79 R.F.L. (6th) 225 . In that case, the child protection worker entered the home after already seizing the child for the purpose of taking photographs to show the state of the residence.

In rejecting an implied authority to enter, the court stated (at para. 46): …. Although I agree that the society has an obligation to continue its investigation, I do not agree that clause 15(3)(

a) of the Act grants it the right to enter the mother’s home at will to do so. [Children’s Aid] Societies do not have free reign to operate unchecked by the limitations placed on all State agents under the Charter . [ 103 ] See also V.S. et al. v. Director of Child Welfare (Alta.) , 2004 ABQB 892 , 373 A.R. 201 , which is referred to in detail at paras. 41-43 of the Chatham-Kent case. [ 104 ] It should be noted that each of the above cases is distinguishable in that they each dealt with a search and seizure.

Further, the actions of the child protection workers in those cases were undertaken for purposes other than the prevention of further child abuse. Additionally, the legislation in question in those cases did not contain a provision authorizing the child protection worker to take such further steps as are considered necessary for the protection of the child, as is present in s. 18.4(1) of the CFSA . [ 105 ] Therefore, based on the above, the trial judge correctly concluded that s. 18.4(1) of the CFSA was capable of implicitly authorizing the child abuse investigator to seize the boxed items.

What is the Constitutional Standard to be Applied to Seizures Made by Child Protection Workers Pursuant to

Section 18.4(1) of the CFSA ? [ 106 ] As earlier stated, because a seizure by a child protection worker constitutes a state action, it is subject to Charter scrutiny. As such, any seizure by a child protection worker pursuant to s. 18.4(1) must be reasonable pursuant to s. 8 of the Charter . [ 107 ] At issue in the present case is whether, in light of their duties and responsibilities in child protection matters, seizures by child protection workers should be considered reasonable in the absence of a warrant, or whether the usual rule that a warrantless seizure is prima facie unreasonable should be applied.

Stated differently, should a more flexible constitutional standard be applied to child protection workers who seize evidence in order to protect a child from further abuse? [ 108 ] In M. (M.R.) and Cole , the court determined that school authorities should be entitled to a more lenient and flexible standard when conducting searches due to their statutory duty to ensure a safe school environment and the diminished expectation of privacy within the school setting. [ 109 ] In the present case, it may be said that child protection workers share similar goals with school authorities regarding the protection of children.

However, unlike school authorities, child protection workers do not operate in an environment in which the potentially affected parties have a reduced expectation of privacy in relation to the child protection worker.

In cases where a child protection worker has entered a home where a child in need of protection is located, the other occupants of the home have a high expectation of privacy and would not reasonably expect that a public authority would be entitled to seize items within the house without a warrant. [ 110 ] While there have been cases wherein courts have automatically applied, without analysis, the usual requirement for prior judicial authorization ( P.B. ; R. v. S.S. (2012), 322 Nfld. & P.E.I.R. 61 (Prov.

Ct.) ), there is no authority specifically addressing the issue of whether child protection workers should be subject to this standard or the more flexible standard enunciated in M. (M.R.) and Cole .

To analyze this issue, it is helpful to examine the operational sphere of child protection workers. [ 111 ] As earlier stated, in K.L.W. , the Supreme Court of Canada considered the operational sphere of child protection workers in relation to their authority to apprehend a child in need of protection and discussed the circumstances in which a child protection worker would or would not need to have a warrant when making an apprehension.

Although the case was determined on the basis of s. 7 of the Charter , it is my view that the comments of the court in K.L.W. shed much light on the subject of whether a child protection worker would be required to obtain a warrant under s. 8 of the Charter when seizing evidence in a child protection matter. [ 112 ] In K.L.W . , the issue was whether the principles of fundamental justice applicable in the child protection context required prior judicial authorization of apprehensions in “non-emergency” situations (see para. 88). [ 113 ] In order to answer this question, L’Heureux-Dubé J., for the majority, stated that it was necessary to balance the

following three factors (see para. 93): (1) the seriousness of the interests at stake; (2) the difficulties associated with distinguishing emergency from non-emergency child protection situations; and (3) an assessment of the risks to children associated with adopting an “emergency” threshold, as opposed to the benefits of prior judicial authorization. [ 114 ] Regarding the seriousness of the interests at stake, L’Heureux-Dubé J. stated (at para. 94): … [T]he interests at stake in cases of apprehension are of the highest order, given the impact that state action involving the separation of parents and children may have on all of their lives, and particularly on their psychological and emotional well-being.

From the child’s perspective, state action in the form of apprehension seeks to ensure the protection, and indeed the very survival, of another interest of fundamental importance: the child’s life and health.

Given that children are highly vulnerable members of our society, and given society’s interest in protecting them from harm, fair process in the child protection context must reflect the fact that children’s lives and health may need to be given priority where the protection of these interests diverges from the protection of parents’ rights to freedom from state intervention. [ 115 ] With respect to a parent’s interest to be free from state intervention, L’Heureux-Dubé J. considered the applicability of the rationale, developed in the criminal law context, for the requirement of prior ex parte authorizations to protect against the infringement of privacy interests.

She concluded that different procedural protections will be required in a child protection context. She explained (at para. 98): To summarize, the interests at stake in the child protection context dictate a somewhat different balancing analysis from that undertaken with respect to the accused’s s. 7 and s. 8 rights in the criminal context. Moreover, the state’s protective purpose in apprehending a child is clearly distinguishable from the state’s punitive purpose in the criminal context, namely that of seeing that justice is done with respect to a criminal act.

These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context.

On the importance of distinguishing between criminal and non-criminal contexts with respect to s. 7 analysis; see Blencoe [2000 SCC 44 , [2000] 2 S.C.R. 307 ] at para. 92. [ 116 ] With respect to the second factor, the difficulties associated with distinguishing emergency situations from non- emergency situations in a child protection context, she pointed out that there are evidentiary difficulties and time pressures associated with child protection situations, as well as the need for preventative and protective state intervention with respect to children (see para. 99).

She wrote (at para. 100): .… The challenging task facing child protection workers was also recognized by Lord Nicholls in his speech for the majority in In re H. (Minors) (Sexual Abuse: Standard of Proof) , [1996] A.C. 563 (H.L.) , at p. 592 : I am very conscious of the difficulties confronting [child protection] workers and others in obtaining hard evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove. The task of [child protection] workers is usually anxious and often thankless.

They are criticised for not having taken action in response to warning signs which are obvious enough when seen in the clear light of hindsight. Or they are criticised for making applications based on serious allegations which, in the event, are not established in court.

Sometimes, whatever they do, they cannot do right. [ 117 ] Finally, with respect to the third factor, the risk of adopting an emergency threshold against the benefits of prior judicial authorization, she recognized that there was a risk that a child protection worker might err and make a wrong decision, thereby subjecting both the parents and children to the trauma of separation and unjustified state interference.

However, she also noted delays associated with prior ex parte authorization “would still leave children at risk of serious, or even life-threatening, harm for at least a number of hours, or even days” and that “[a] child should never be placed in such jeopardy” (at para. 109). [ 118 ] Next, she considered whether the benefits of prior judicial authorization outweighed the risks.

She determined that the protection that prior ex parte judicial authorization provided in terms of procedural fairness was not high (see para. 113), and further (at para. 116): …. … [F]or the purposes of the s. 7 constitutional analysis, however, that the procedural protections against state interference provided

by prior ex parte authorization do not enhance the fairness of the apprehension process sufficiently to outweigh the countervailing interests of, and potential risks to, a child who may be in need of the state’s protection. …. [ 119 ] Thus, after assessing all three of the factors identified as relevant to the issue of whether the principles of fundamental justice applicable in the child protection context require prior judicial authorization of apprehensions in “non-emergency” situations, L’Heureux-Dubé J. ultimately determined that it was constitutionally valid, in the child protection context, that an apprehension of a child may occur without a warrant not only in emergency situations, but also in situations of serious harm or the risk of serious harm to the child (see para. 117).

In all other situations, however, a warrant to apprehend a child will be required in child protection matters. [ 120 ] In my view, the factors discussed in K.L.W. regarding the warrantless apprehension of children apply equally with respect to the warrantless seizure of evidence of child pornography in the child protection context. [ 121 ] For example, with respect to the factor involving the interests at stake, as indicated in K.L.W. , a different balancing analysis from that used in the criminal context is required in the child protection context.

In the child protection context, society’s interest in protecting children from harm requires that children’s lives and health may need to be given priority over the interests of others who wish to be free from state interventions, such as seizure of their personal property.

Thus, where a child is at risk of serious harm from images or recordings of child pornography, the need to protect the child and prevent further harm may require the immediate seizure of those items in priority to another person’s interest in being free from such state intervention. [ 122 ] Regarding the difficulties associated with identifying emergency as opposed to non-emergency situations in the child protection context, again, it is clear that, where child pornography is at issue, the evidentiary difficulties are even more enhanced, as not only will the evidence normally be located within the intimacy of a private home, but it may also be located within computer files or discs.

With child pornography, the timeliness of the decision to seize will also be important. If the pornography is not seized immediately, it can quickly and easily be moved, destroyed or disseminated.

The comments of L’Heureux-Dubé J. regarding the need for child protection workers to be able to take action to prevent serious harm also apply with respect to child pornography. [ 123 ] Admittedly, the ultimate consequence to the possessor of the child pornography may be the invocation of the criminal justice system; however, that does not outweigh the potential consequence of subjecting the child to further abuse. [ 124 ] Finally, with respect to the risks and benefits associated with permitting warrantless seizures of child pornography, it is important to note that, in K.L.W. , the court noted that, if a warrantless child apprehension occurred unnecessarily, both the children and parents would be subject to the trauma of separation and the unjustified state interference in their lives, and that this could have significant impact on both the parents’ and the children’s emotional well-being.

Where there is a seizure of computers or discs containing images or recordings of child pornography, however, the impact will not be the same. The emotional well-being of the parents and child will not be affected in the same way by an unjustified seizure of “things,” although there may be some impact on the dignity and privacy interests of the owner of the computer.

However, if a child protection worker was required to leave the computer or discs behind and wait for the police to obtain a warrant to seize these items, the risk of harm that could result from the delay inherent in such a process would fall entirely upon the child. That is, it would be the child alone that would bear the risk that the images or recordings could be moved, destroyed or disseminated. [ 125 ] As I have explained, the concepts discussed in K.L.W. can be applied to warrantless seizures of child pornography by child protection workers to prevent further child abuse.

Consequently, a more flexible constitutional standard should be applied in cases where a child protection worker seizes evidence in order to protect a child from the harm of child pornography. In particular, a warrantless search for, or seizure of, child pornography by child protection workers in the child protection context will not violate s. 8 of the Charter , assuming always, of course, that the child protection worker has reasonable grounds to believe that the items seized contain such images or recordings.

Was the Seizure by the Child Abuse Investigator Reasonable? [ 126 ] As discussed above, it is my opinion that the warrantless seizure of the boxed items by the child abuse investigator was implicitly authorized by s. 18.4(1) of the CFSA and that such an

interpretation of the law is reasonable. [ 127 ] Regarding the requirement that the seizure be conducted reasonably, the trial judge found that the child abuse investigator believed on reasonable grounds that the boxed items contained images of child pornography and that she had a duty under the CFSA to protect the child against the risk of the pornographic images making their way permanently onto the internet (see para. 34). Thus, the seizure of the boxed items was a “further step” taken which was “necessary for protection of the child” as authorized by s. 18.4(1) of the CFSA.

The child abuse investigator did not search the contents of the boxed items, but simply turned them over to the police. [ 128 ] Based on the above, the seizure of the boxed items by the child abuse investigator was reasonable given the circumstances of this case. [ 129 ] With respect to the subsequent seizure by the officers, in Vu , the Supreme Court of Canada held (at para. 49): If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data.

If they wish to search the data, however, they must obtain a separate warrant.

[emphasis added] [ 130 ] The seizure of the computer in Vu to preserve evidence is the same as the seizure of the boxed items in this case. That is, the officers received or seized the items to preserve their integrity, but obtained a warrant to search the contents.

Thus, there is no issue regarding the officers’ seizure of the boxed items from the child abuse investigator and the officers did not benefit “from the fruits of the search.” The Third Ground of Appeal – Section 24(2) of the Charter [ 131 ] Having found that neither the computer nor the boxed items were seized in breach of s. 8 of the Charter , it is not necessary for me to engage in a detailed analysis regarding s. 24(2) of the Charter . [ 132 ] Nevertheless, the trial judge indicated that, if he was in error when he found that there were no breaches of the Charter , he would not have excluded the evidence pursuant to s. 24(2) of the Charter .

In reaching his conclusion, he correctly enunciated the test in R. v.

Grant , 2009 SCC 32 at para. 71 , [2009] 2 S.C.R. 353 , and reached the following conclusions: (1) the police officers who seized the computer acted in good faith and they believed that the mother had a sufficient proprietary interest in the computer to authorize them to remove it from the home (see para. 39); (2) the child abuse investigator was acting in good faith in that she knew she had a duty to protect the complainant and act in her best interests; further, she honestly believed on reasonable grounds that the boxed items would likely contain pornographic images of the complainant and she turned them over to the officers to prevent further dissemination of them (see para. 40); (3) the impact of the seizures on the accused’s privacy was minimal in that the more substantial interference with his privacy rights occurred when the officers accessed the contents of his computer pursuant to the unchallenged search warrant (see para. 41); and (4) society’s interest in adjudication of the charges is great insofar as the items seized contained highly relevant and probative evidence with respect to the charges against him (see para. 42). [ 133 ] I see no error in the trial judge’s analysis and would rely on it to find that, if the accused’s s. 8 Charter right had been breached, the evidence should not be excluded in this case.

Furthermore, I note that such a finding is consistent with those in Cole , Vu and R. v. McNeice (K.G.) , 2013 BCCA 98 , 335 B.C.A.C. 35 , where, unlike this case, the evidence was not excluded despite the fact that police did not obtain a warrant prior to searching the contents of an accused’s computer. Disposition [ 134 ] For all of the reasons above, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.