R. v. B.-H., 2013 ONSC 1183

CITATION : R. v. B.-H. , 2013 ONSC 1925 COURT FILE NO.: 11-5071 DATE: 2013/04/02 ONTARIO SUPERIOR COURT OF JUSTICE INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486 OF THE CRIMINAL CODE OF CANADA B E T W E E N: ) ) Her Majesty The Queen ) John Ramsay, for the Crown ) ) - and - ) ) ) C.B.-H. ) Joshua Clarke, for the Accused ) ) )) HEARD in Ottawa: February 7, 2013 REASONS ON VOIR DIRE Mr. Justice Patrick smith [ 1 ] C.B-H. faces four charges relating to the surreptitious filming of his 14 year old step-daughter with a hidden video camera placed in her bedroom. [ 2 ] On February 7, 2013 a blended voir dire was conducted concerning the voluntariness of a statement given by the accused upon his arrest along with a motion that ss. 7, 8, 9, 10(

a) and 10(

b) of his Charter rights had been infringed. [ 3 ] On February 22, 2013 I released brief written reasons and ruled that the statement was voluntary and dismissed the defence motions indicating that more extensive reasons would follow. An Overview of the Facts [ 4 ] On June 15, 2011 Constable Stephen Williams of the Ottawa Police Service responded to a 9-1-1 call at the complainant’s relative’s home in Ottawa where he spoke to the complainant, C.A., and her daughter, V.B.

The complainant informed him that her daughter had recently discovered a hidden video camera in her bedroom that contained naked pictures of herself. [ 5 ] Constable Williams testified that he then viewed three videos to ascertain if the allegations made by Ms. C.A. were well-founded. They included: (

a) a video taken June 13 th of a male person identified as the accused; (

b) a video dated June 9 th of a topless female; (

c) a video taken March 20 th or 30 th of a naked female identified by the complainant as her 14 year old daughter V.B. [ 6 ] In a written statement provided to Constable Williams at the scene, Ms. C.A. indicated that the male person depicted in the video dated June 13 th was her spouse, C.B.-H. She stated that she had no knowledge of who the owner of the video camera was or how it came to be placed in her daughter’s bedroom.

She also stated that she, her daughter V.B., her son N.B., and C.B.-H. live together at the same address in Ottawa. [ 7 ] The accused then appeared at the scene having been alerted to the fact that the camera had been discovered. Constable Williams testified that, after viewing the videos and interviewing Ms. C.A. and V.B. he had reasonable and probable grounds to believe that a crime had been committed whereupon he arrested the accused for “voyeurism” and, read him the standard police caution and warning.

He was then transported to the central police cellblock located at 474 Elgin Street, placed into the custody of the duty sergeant and searched.

The accused then made a telephone call to a lawyer for the purpose of obtaining legal advice and was placed in a holding cell. [ 8 ] Constable Williams visited the accused while in the holding cell and asked him about the location of the power cables for the video camera since he was concerned that, if the camera battery ran out of power, all of the data and videos would be lost. [ 9 ] The accused was co-operative and advised that the power cables were stored in his garage in a cloth bag at the family residence.

Constable Williams immediately attended there and spoke to a resident of the home, N.B., the son of the complainant, who

gave him access to the home and garage. [ 10 ] After finding the power cables where the accused had said they would be found, Constable Williams enquired about the whereabouts of the family computer as he had been instructed by Sergeant Patricia Ferguson to seize it. N.B. led Constable Williams to a computer located in the family room and informed him that it was a common computer accessed by family members.

The computer was seized without any examination of its contents and was taken for safe keeping to the police station and not searched until after a warrant had been obtained. [ 11 ] Constable Williams took the camera to the Sexual Assault, Child Assault Unit (“SACA”) police unit where one image was viewed by himself and by Sergeant Ferguson. [ 12 ] It was the testimony of Constable Williams and Sergeant Ferguson that N.B. and C.A. gave permission to the police to enter the home and remove the computer. [ 13 ] Two warrants were obtained authorizing the search and seizure of the contents of the video camera and computer from June 22, 2011 until June 23, 2011.

There is no suggestion that the search and seizure were conducted in violation of the terms of the warrants. The argument of the accused is that the warrants should not have been issued in view of the failure of the affiant to reveal numerous material facts or because several misleading facts were contained in the information presented to the Justice of the Peace who issued the warrants. [ 14 ] After obtaining warrants to search the camera and computer, the camera was given to Brian McNally, a forensic video specialist employed by the Ottawa Police Service.

He “burned” the contents onto a disk and gave it to Constable Michel Villeneuve, a forensic examiner with the Ottawa Police Service. Constable Villeneuve also received the computer tower and conducted a search of both the computer and camera acquiring a number of images which were then copied and provided to Sergeant Ferguson. [ 15 ] During the evening of June 11 th Sergeant Ferguson conducted a videotaped interview of the accused which was played at the voir dire hearing. The accused confirmed in the interview that he was well treated, had not been threatened, pressured or induced to provide a statement.

There is no suggestion that he was not capable of understanding what was happening or said to him. He appeared mentally alert at all times. [ 16 ] At the commencement of the interview, Sergeant Ferguson advised and cautioned the accused that he was under arrest for voyeurism. During the interview, the accused admitted that he owned the camera and that he placed the camera in the bedroom of his step-daughter for the purpose of filming her without her consent and that he was sexually aroused by the images recorded.

Sergeant Ferguson did not mention that there was a possibility that child pornography charges would be laid. She testified that, although this was a possibility, she did not advise the accused that child pornography charges could be laid since she had not viewed all of the images on the camera and computer and wanted to get some advice as she was unsure whether the images found would sustain these charges. [ 17 ] It was only on July 8, 2011, after Sergeant Ferguson received advice from a Crown Attorney and that the images were viewed, that she decided to lay child pornography charges.

No further steps were taken to re-interview the accused. The Issues [ 18 ] The issues before the court on the voir dire are as follows:

(1) Was the statement provided by the accused voluntary and hence admissible?

(2) Were the Charter rights of the accused violated by the search and seizure of the video camera and computer?

The Voluntariness of the Accused’s Statement [ 19 ] The accused concedes that there were no oppressive circumstances, police trickery, deprivation of basic human needs involved with respect to his statement, or that it was not the product of an operating mind. [ 20 ] The argument presented by the accused is that the Crown failed to prove beyond a reasonable doubt that the statement was not induced and has thus not satisfied the third part of the test for voluntariness set out by the Supreme Court of Canada in R v.

Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3. [ 21 ] There was a six minute period when the accused was escorted by an unknown police officer from his holding cell to the interview room where he gave a statement to Sergeant Ferguson. The accused alleges that what happened during this six minute gap has been unaccounted for by the Crown during which the accused was potentially induced to make a statement. [ 22 ] Constable Williams testified he was present for all conversations that took place between the accused and the duty sergeant.

He stated that no inducements or oppression took place. [ 23 ] With respect to the six minute gap that has been unaccounted for, the evidence establishes that the accused did not converse with any other police officer or person in authority during that time period. [ 24 ] During the interview of the accused with Sergeant Ferguson, the following exchanges took place.

They show that not only was the accused not oppressed, he was thankful for the treatment afforded him, but also that there was only one officer (Constable Williams) with whom he spoke before being placed in the interview room and questioned by Sergeant Ferguson:

PF: Okay. Has anybody made any promises or threats to you about talking to me now? CB: No. PF: Okay. All right. Um, so if you’ve spoken to any police officer or to anyone with authority or if such a person has spoken to you in connection with this case, I want it clearly understood I do not want it to influence you in making any statement. Okay. Do you understand that? CB: I...I understand the statement but I am not sure why. I spoke to the officer that picked me up and brought me here. PF: Okay. CB: And can you read the statement again? I'm... PF: Sure. I'm saying if you have spoken to any police officer...

CB: Yes. PF: ...or to anyone with authority, so that could be somebody here in the cellblock, or if such...any such person has spoken to you in connection with this case, I want it clearly understood I don't want it to influence you in any way in making a statement right now. So if the officer on the road said to you, you know what if you...if you, you know don't confess... CB: Right. He gave...he gave me no advice of anything like that. PF: Okay. CB: I talked to him. PF: Okay good. All right. I just want to make sure that you understand you don't have to tell me anything right now. CB: Yes.

PF: And anything that you do say can be used in court proceedings down the road.

CB: Yes. [ 25 ] It is clear from this exchange that the accused is saying that he had contact with one officer (Constable Williams) during the six minute time gap in question. [ 26 ] In The Law of Evidence , 6th ed. (Toronto: Irwin Law, 2011), at p. 327 Justice David Paciocco writes: ...while the Crown is not required to call as a witness every person in authority who has any dealings with the accused, there have been cases where reasonable doubt has been left about voluntariness because the Crown failed to call material witnesses who could describe what happened when they were in the company of the accused.

[27] The Crown is not compelled to call witnesses who are immaterial - in this case a special constable who transported theaccused from the holding cell to the interview room and, who the accused stated did not say anything to him. (See also: R v. Holmes, (ON CA), [2002] 62 O.R. (3d) 146 (C.A.) where a sixteen hour gap was unaccounted for). [28] Based upon the evidence before me, I find that the Crown has proven the voluntariness of the statement of the accusedbeyond a reasonable doubt and rule that it is therefore admissible. The Alleged Breaches of the Charter Rights of the Accused [29]

Section 7 of the Charter reads: Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [30]

Section 9 of the Charter provides that “Everyone has the right not to be arbitrarily detained or imprisoned.” [31] Sections 10(

a) and (

b) of the Charter states: Everyone has the right on arrest and detention... (

a) To be informed promptly of the reasons therefore; (

b) To retain and instruct counsel without delay and to be informed of that right. [32] The accused does not challenge that he was properly advised of the reason for his arrest on the charge of voyeurism nor thathe was advised of his rights to counsel and that he was given a reasonable opportunity to speak to counsel. [33] The argument advanced by the accused is that his s. 7 Charter right to remain silent was violated because he was notinformed at the time he was questioned of his potential jeopardy of being charged with child pornography and hence was not able to beproperly informed about whether or not to remain silent or to make a statement to the police. [34] With respect to s. 10(

a) the accused maintains that his rights were infringed when he was not advised that he was beinginvestigated for possession and production of child pornography. [35] He further argues that his s. 10(

b) rights were violated because he was not given legal advice based upon his actual jeopardywhich was not simply related to the charge of voyeurism and therefore required that he be re-cautioned and given another opportunity toconsult legal counsel especially in view of the mandatory minimum jail sentence attached to the charge of possessing or making childpornography. (See: R. v.

Smith (SCC), [1991] 1 S.C.R. 714) [36] In my view, the evidence demonstrates that at the time the accused was questioned the police had not formed an intention tolay child pornography charges and that it was not reasonable to caution the accused of something that may or not occur. [37] It was Sergeant Ferguson’s evidence that she suspected that the camera and computer may contain images sufficient tosupport child pornography charges but was unsure for a variety of reasons: she had viewed only one image stored in the camera, lackedtraining and experience in what constituted child pornography, wanted to consult with a Crown Attorney and other more experiencedofficers in addition to waiting until the images were accessed by a forensic specialist and examined. [38] It was a month later, and notably after advice was received and the images examined that child pornography charges werelaid.

Nothing said by the accused led the police to decide to lay child pornography charges. It was the results of the search of the imageson the camera and computer and advice provided by a Crown Attorney that caused the police to lay further charges. [39] At the time that the accused was questioned he was fully informed and knowledgeable of the evidence and information thatthe police had at that point in time. It is not uncommon for additional charges to be laid weeks or months after an initial investigation asevidence is uncovered. [40] An accused need not be aware of the precise charge he is facing or may face.

What is required is that he possesses sufficientinformation to allow him to make an informed decision whether or not to speak to a lawyer. (R. v. Smith) [41] It is clear from the video statement and all of the evidence and circumstances that the accused was properly advised of thereasons for his arrest and that he generally understood the jeopardy in which he found himself, sufficient to permit him to validly solicitlegal advice from his counsel. [42] Although the accused alleged that he was improperly detained and that his s. 9 Charter rights were infringed, this argument

was not vigorously pursued and, in any event, I find that it has not been supported by the evidence. [43] For the above reasons, I find that the ss. 7, 9, 10(

a) and 10(

b) Charter rights of the accused were not violated. The

Section 8 Charter Rights of the Accused I. the search and seizure of the video camera prior to a search warrant being obtained II. the seizure of the computer from the residence of the accused III. the legality of the search warrants IV. the searches of the camera and computer after search warrants were obtained [44]

Section 8 of the Charter states that “Everyone has the right to be secure against unreasonable search and seizure.” [45] The accused alleges that there were seven separate violations of his s. 8 rights:

(1) Constable Williams looking through the video camera’s contents while at the complainant’s relative’s home.

(2) Constable Williams and Sergeant Ferguson viewing at least one camera image at the SACA offices.

(3) Constable Williams entering the residence of the accused.

(4) Constable Williams seizing the computer tower.

(5) Sergeant Cloake and Brian NcNally downloading the data from the computer.

(6) Constable Villeneuve extracting data from the computer, the review of the contents, and the seizure of the camera andcomputer tower on June 22, 2011.

(7) The review by Sergeant Ferguson of all videos and pictures on the camera and computer on July 13, 2011. [46] To determine whether an accused has a reasonable expectation of privacy a court must examine the “totality of thecircumstances” and conduct a four stage enquiry: (1) an examination of the subject matter of the search; (2) a determination of whether the accused has a direct interest in the subject matter; (3) an inquiry into whether the accused has a subjective expectation of privacy in the subject matter; (4) an assessment of whether the subjective expectation of privacy is objectively reasonable, having regard to the totality ofcircumstances. (R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128; R v. Cole, 2012 SCC 53, 353 D.L.R. (4th) 447]. [47] The accused argues that he had a reasonable expectation of privacy in three circumstances, including: (1) his residence; (2) inthe camera’s contents; and (3) in the computer and its contents. Should the court find that a reasonable expectation of privacy exists itmust then embark upon an examination of whether the search or seizure was reasonable. (R. v.

Cole) The Search and Seizure of the Video Camera Prior to theSearch Warrant [48] The accused argues that he had a significant privacy interest in the camera particularly since it was found by his step-daughterin his residence. He maintains that it is not unlike a cellular telephone in that it is capable of storing significant amounts of data andinformation and, like a cellular telephone, has a very high privacy interest attached to it. [49] As commented by Sharpe J.A. in R v.

Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40 at para. 39, “it is apparent that thetraditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a mannerthat takes into account the facts of modern technology”. [50] In Manley, the police seized and searched a cellular telephone which is significantly different than a search of the videocamera and computer in the case before the court.

There are significant privacy interests involved with a cellular telephone since theyhave the capacity to store large amounts of personal, sensitive and confidential information – “all manner of private voice, text and e-mailcommunications, detailed personal contact lists, agendas, diaries and personal photographs”. (See also: R. v. Polius (2009), 196 C.R.R.(2d) 288 (Ont. Sup. Ct.); R. v. Fearon, 2013 ONCA 106; R. v. Little, (Sup. Ct.)). [51] In my view, a video camera is different than a cellular telephone.

Very different privacy interests are involved because it doesnot have the capability of storing the type of information typically stored on a cellular telephone as described in R. v. Manley.

[52] At the time of the initial search of the camera by Constable Williams when he attended at the complainant’s relative’s hometo interview Ms. C.A., the ownership of the camera was unknown although it was suspected that the accused had placed it in V.B.’sbedroom.

Accordingly no identifiable privacy interests were being breached at that point in time. [53] Once arriving at the scene the accused admitted that he was the owner of the camera at which point a subjective privacyinterest was identified. [54] Any privacy interest that the accused had as owner of the camera and/or because it was found in his residence cannot beobjectively sustained and was relinquished when he decided to hide it in the bedroom of his step-daughter for the purpose of filming herin a state of undress. [55] Incident to a lawful arrest, the police have the power to search without a warrant for the purpose of ensuring officer safety,and, if there is “some reasonable prospect of securing evidence of the offence for which the accused is being arrested” (emphasis inoriginal), to secure and preserve that evidence. (R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51 at para. 22; Criminal Code,R.S.C. 1985, c. C-46, s. 489(2)) [56] The search of the video camera by Constable Williams at the complainant’s relative’s home before the arrest, was cursoryand conducted for the purpose of confirming that a crime had been committed. [57] The search of the camera by Constable Williams and Sergeant Ferguson at the police station, although conducted later on theday of the arrest, was also cursory and justified as a search incident to arrest to confirm that a crime had been committed. As stated byChief Justice Lamer in R. v.

Caslake at p. 25, “[d]elay and distance in conducting a search do not automatically preclude a search frombeing incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by aproper explanation”. [58] I find that the searches of the camera at the complainant’s relative’s home, and later at the police station were reasonable andconducted as an incident to arrest. [59] Seizure of the camera by the police was not only prudent but also necessary to preserve evidence.

The police had reasonableand probable grounds to believe that a crime had been committed and that there was significant risk that images contained on the cameracould be erased or tampered with unless it was immediately seized. The Seizure of the Computer [60] Notwithstanding that the computer was located in the residence of the accused, entrance to the home was consensuallyprovided by N.B. a resident of the home and by Ms. C.A. who was a co-owner of the home with the accused. [61] Constable Williams was acting on information received from Ms.

C.A. that the computer was commonly used by the family.This information was confirmed by N.B. when he attended at the home and located the computer in the family room. Further, it wasreasonable for the police to assume that the computer could contain images similar to the ones viewed on the camera and thus containevidence of that crime. [62] Seizure of the computer was justified pursuant to s. 489(2) of the Criminal Code as being incident to arrest.

Seizure wasrequired to preserve evidence that a crime had been committed - a reasonable assumption under the circumstances. [63] The computer was only searched after a warrant was obtained. [64] There is no evidence that the police acted in bad faith at any time. [65] I find that any privacy interest the accused had in the computer was not infringed by the seizure by the police in view of allthe circumstances.

Search of the Camera and Computer After Warrants WereObtained [66] The two warrants issued authorized the search and seizure of the contents of the camera and computer from June 22, 2011until June 23, 2011 at 11:35 p.m. [67] The accused accedes that the transfer of the camera and computer by Sergeant Ferguson to Brian McNally and ConstableVilleneuve on June 22, 2011 was proper and authorized by the terms of the warrants. [68] The accused argues that the search and seizure of the camera and computer that were conducted pursuant to the warrantsissued were in fact warrantless because the warrants issued were illegal because of the failure of Sergeant Ferguson to provide all theknown material facts to the Justice of the Peace or because she misled the Justice of the Peace with respect to various material facts.

Hadthe Justice of the Peace had a correct version of all the material facts, the accused argues that the warrants would not have been issued. [69] Warrantless searches are presumptively unreasonable. (R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145). [70] The onus is on the accused to demonstrate that the ITO is insufficient. (Quebec (Attorney General) v. Laroche, 2002 SCC 72,

[2002] 3 S.C.R. 708 at para. 68). [71] The Supreme Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 has provided an extensive

summary of the reviewprocess when the issuance of a search warrant is challenged. Under the Charter, before a search can be conducted the police mustprovide “reasonable and probable grounds, established under oath, to believe that an offence has been committed and that there isevidence to be found at the place of the search” as stated in Morelli at para. 39 quoting Hunter at p. 168. [72] The test to be applied by a reviewing court is “whether there was reliable evidence that might reasonably be believed on thebasis of which the authorization could have issued” (emphasis in original). (R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54;also see R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at p. 1452). [73] In conducting a review of whether a warrant should have been issued a court must afford some deference to the Justice of thePeace. A reviewing court should not substitute its own opinion about whether it was reasonable to issue a warrant; rather, it mustdetermine whether the Justice of the Peace acted judiciously in issuing the warrant.

Part of this inquiry will necessitate a review ofwhether the authorizing Justice of the Peace was provided all of the material facts particularly since applications are typically made exparte. [74] The accused lists six instances where materials facts were either withheld or misstated which he alleges, had they beenproperly disclosed, would have caused the Justice of the Peace to have declined to issue both warrants: (1) the fact that Cst. Williams had consulted with someone to provide justification for his search of the camera conducted at thecomplainant’s relative’s home; (2) the fact that Cst.

Williams “looked” at the camera or “was shown” images. The accused submitted that the version of thefacts contained in the ITO is misleading and does not correspond with the information provided by Ms. C.A.; (3) the fact that Cst. Williams and Sgt. Ferguson inspected the camera at SACA was not mentioned in the ITO; (4) the fact that Sgt. Ferguson consulted with a variety of people to obtain advice on child pornography and failed to makemention of this in the ITO; (5) the fact that Sgt.

Ferguson relied upon her training and experience to explain why there were reasonable and probablegrounds to believe that there was evidence of child pornography on the computer but failed to mention in the ITO that she had noexperience of internet pornography and had only taken two hours of training on the subject; and (6) the fact that Sgt.

Ferguson could not explain how the accused was part of any known group of people who possessed orcollected child pornography. [75] Having considered all of the above arguments, notwithstanding that there are facts omitted from the ITO and that some of theinformation can be fairly described as misleading, I find that on balance the information was reliable and, with the offending informationexcised from the ITO, it was reasonable for the Justice of the Peace to issue the warrants and, that in so doing, he acted judiciously. [76] As a result, I find that the search of the contents of both the camera and computer after the search warrants were obtainedwere conducted legally and the results are admissible into evidence at the trial of the accused.

The Admissibility of the Evidence under

Section 24 of theCharter [77] In R. v.

Grant, [1993] 3 S.C.R. 22 at pp. 251-52, the Supreme Court set out the proper procedure to follow where theinformation to obtain a warrant contains facts obtained through a Charter violation: [W]here the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewingcourts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the informationsworn to obtain the warrant…[T]he warrant and search conducted thereunder…will be considered constitutionally sound if the warrantwould have issued had the observations gleaned through the unconstitutional …searches been excised from the information. [78] Even if the warrant would have been issued, a s. 24(2) analysis must still be considered because of the possibility that theentire search process may have been tainted by the earlier warrantless search of the camera and seizures. [79] Section 24(2) of the Charter provides that, where in proceedings under subsection (1), a court concludes that evidence wasobtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if itestablished that, having regards to all the circumstances, the admission of it in the proceeding would bring the administration of justiceinto disrepute. (R. v.

Grant) [80] The analysis set out in Grant requires a balancing assessment of three broad inquiries: (1) the seriousness of the Charterbreaches; (2) the impact of the breaches on the Charter protected interests of the accused; and (3) society’s interest in the adjudication. [81] Although I am satisfied that none of the Charter rights of the accused have been denied or infringed, in the event that I amwrong in my analysis, I am of the view that a reasonable person informed of all the relevant circumstances of the case and the valuesunderlying the Charter, would not conclude that the admission of the evidence in this instance would bring the administration of justice

into disrepute. Mr. Justice Patrick Smith Released: April 2, 2013 CITATION : R. v. B.-H. , 2013 ONSC 1925 COURT FILE NO.: 11-5071 DATE: 2013/04/02 ONTARIO SUPERIOR COURT OF JUSTICE INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 486 OF THE CRIMINAL CODE OF CANADA BETWEEN: Her Majesty The Queen - and – C.B.-H. REASONS ON VOIR DIRE P. Smith J. Released: April 2, 2013