R. v. Tyler Perkins, 2013 ONSC 1807

CITATION: R. v. Tyler Perkins, 2013 ONSC 1807 OSHAWA COURT FILE NO.: 12980/12 DATE: 2013-03-26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN : HER MAJESTY THE QUEEN Respondent — and — TYLER PERKINS Applicant COUNSEL: Tammy D’Eri for the Respondent Jennifer Penman for the Applicant HEARD: January 7, 8, 9, 10, 14, 16, 18, 21, 2013 J.E. Ferguson J. REASONS FOR JUDGMENT The Charge [ 1 ] Tyler Perkins (“Perkins”) is charged that on or about the 14 th day of September, 2010 at the City of Oshawa he did without lawful excuse possess child pornography, contrary to

Section 163.1(4) of the Criminal Code , R.S.C. 1985, c. C-46. The Application [ 2 ] This is Perkins’ application pursuant to Sections 8, 9, 10 and 24(2) of the Charter of Rights and Freedoms (the “ Charter ”). [ 3 ] On January 21, 2013, I excluded the evidence found on Perkins’ computer pursuant to Section 24(2) of the Charter . The following are the reasons for that exclusion.

Background [ 4 ] The charges before the court stem from an incident, which occurred on September 14, 2010. Perkins was observed utilizing a laptop computer, while situated in the driver’s seat of a vehicle that was parked in a residential area. The police had received a complaint. The police commenced an investigation of Perkins which included questioning Perkins. Perkins made a number of utterances to the police, including the fact that he was using unsecured wireless internet connections in the area to surf the web on his laptop.

Before his arrest, his laptop was seized from him and placed closed on the hood of his car. [ 5 ] Following a brief investigation, Perkins was eventually arrested for the offence of “theft of telecommunications”. Following his arrest, his vehicle was searched, and a series of other electronic items were seized, including a hard-drive, a blackberry and a camcorder. [ 6 ] On September 15, 2010, Justice of the Peace MacDonald (“MacDonald”) granted a s.487 search warrant, pursuant to the affidavit of D.C. McConnell (“McConnell”), authorizing a search of the laptop Perkins was utilizing at the time of his arrest.

The warrant permitted a search of the computer for “system files and logs” as well as “internet activity,” in order to obtain evidence in relation to the offence of theft of telecommunications. The warrant authorized the police to search the computer between the hours of 10 a.m. and 5 p.m., on Saturday, September 15, 2010. [ 7 ] During the course of the execution of the search warrant on January 6, 2012, by D.C.

Russell (“Russell”) of the E-Crimes department of the Durham Regional Police (“D.R.P.”), a “jpeg” file was opened which contained an image constituting child pornography. [ 8 ] Incident to locating this image of child pornography, a second warrant to search Perkins’ laptop was obtained which authorized the police to search the entire laptop, and other electronic devices seized during the September 14, 2010 traffic stop for evidence of child pornography. [ 9 ] The defence admits that the items at issue found on Perkins’ laptop are pornography. The Evidence [ 10 ] P.C.

Marriott (“Marriott”) of the D.R.P. testified as follows: • He has been with the D.R.P. for about three and a half years. • He was with his partner P.C. Mooers (“Mooers”), in uniform and in a marked police vehicle. At 2:25 a.m. they responded to a radio call about a parked but running suspicious looking vehicle (“the vehicle”) at 449 Bristol Crescent in Oshawa (“the location”) with someone inside it. • They arrived at the location (a residential area) at 2:34 a.m. and observed the vehicle on the west side of the street, parked facing south with headlights off.

They could tell it was running when they got out of their vehicle. They had at least one spotlight on the occupant. • They approached the vehicle and saw a lone male occupant in the driver’s seat, using a laptop computer. • Marriott approached the driver’s side. Perkins identified himself verbally when asked. Marriott asked Perkins what he was doing.

Perkins told him that he had no internet at his home, and in order to use the internet, he was accessing other people’s unsecured wireless internet. • Perkins showed Marriott his computer screen and a website which he was using designed to assist in creating your own website. • He asked Perkins for his license, ownership and insurance, which were provided. • Perkins asked Marriott if there was a problem and Marriott told him that it looked suspicious to have a vehicle with dark tinted windows parked at 2:30 a.m. with the engine running with a lone occupant in it using a computer. • Perkins told him that he was trying to set up a website and did not intend to bother anyone. • Officers Henderson and Patrick attended at the scene, also in a marked cruiser. • Marriott and Mooers went back to their vehicle and ran a complete computer check of Perkins which confirmed that he had a lengthy criminal record with numerous sex related offences, including child pornography, voyeurism and sexual assault. • When they looked back at Perkins from their vehicle he was not making eye contact; he was looking down at his computer and appeared to be typing. • At 2:48 a.m. they went back to Perkins’ vehicle.

Marriott advised Perkins that they were investigating him for criminal charges. • Perkins said that he understood and told them that he had been advised by his parole officer and police officers that he could park in neighbourhoods and access other people’s wireless internet. • They asked Perkins to provide them with his laptop. They did not want him erasing anything from his computer. They did not

give him a caution or his right to counsel at that point. • They were trying to figure out if he had breached his probation terms after they found out from the computer search that he was on probation. • They were not sure if it was an offence to access other people’s wireless internet. • Staff Sergeant Jones (“Jones”) arrived. After consultation, it was determined that Perkins was not breaching any specific probation terms, but that he was committing telecommunications theft. • Mooers arrested Perkins at 3:28 a.m. for telecommunications theft.

At 3:34 a.m. he and Marriott began to transport Perkins to 17 Division, arriving at 3:41 a.m. • During the radio call informing them of the vehicle at the location there was no indication of any criminal activity and no concerns were mentioned about Highway Traffic Act violations. [ 11 ] Mooers, Marriott’s partner, testified as follows: • He has been with the D.R.P. for five years. • A complaint had been received about the vehicle and at 2:25 a.m. he and Marriott began driving to the location, arriving at 2:34 a.m. They were in uniform and in a marked vehicle.

The radio call they received gave no indication of criminal activity. • They observed a black vehicle on the west curb facing south, the engine running and the headlights off.

They utilized their spotlights because the area was poorly illuminated. • They ran the plate which was registered to Maria Swynar (“Swynar”) of 455 Miller Avenue in Oshawa. • They exited their vehicle and approached the vehicle and observed a young white male as the sole occupant in the vehicle with a computer on his lap, with the screen opened and lit up. • Mooers testified that he and his partner advised the occupant that they had received a complaint about his parked vehicle. • Perkins responded that he was surfing on the internet, looking for a website to assist in designing websites. • Mooers then asked Perkins how he was doing that, and Perkins said that he was using people’s unsecured wireless, because he did not have internet at home. • Mooers did not give Perkins a caution or right to counsel at that point. • Mooers requested Perkins’ license, ownership and proof of insurance.

Perkins told the constables that this was his grandmother’s vehicle. • The constables took the documents he provided and went back to their vehicle. They put his name in the police computer and received information, including his driver’s record, criminal record and criminal history. • At some point Mooers looked back at Perkins who was still using his computer.

They went back to the vehicle and asked him for his computer which was then placed closed by Mooers on the hood of Perkins’ vehicle at 2:48 a.m. • While retrieving the computer, Mooers observed on the screen what appeared to be a music site. • When he saw from his cruiser that Perkins was still using the computer, it was in Mooers’ mind that Perkins may have been deleting information which related to his history of pornography. • He did not tell Perkins of his suspicion; did not tell him he was concerned about pornography; and did not give him his right to counsel at that point. • They called for a supervisor for input about the charges and Jones attended.

He wanted someone to attend as opposed to just get direction about any charges over the telephone. • Mooers was involved in a brief discussion with Jones. They told Jones what they had observed; what Perkins told them; that it was a possible telecommunications theft; and that they were not sure if he was breaching his conditions. • After the discussion with Jones, he returned to Perkins’ vehicle and arrested him at 3:28 a.m. for telecommunications theft.

At 3:34 a.m. he read him his right to counsel and cautioned him. • Perkins was paraded shortly after they arrived at the station and he believed that Perkins was waiting to be released on a promise to appear. • Perkins had requested that Mooers contact his counsel, Stephen White (“White”). At 4:33 a.m. Mooers called and left a message at White’s office with the person who answered the phone. The call he made to White was almost one hour after the request. He does not know the reason for the delay. • He does not know if White’s office ever called back.

• After he left the message he did not put in a call to duty counsel. • He did no further follow-up with respect to counsel. • He was in touch with Detective Constable McConnell (“McConnell”) to see if he wanted to take carriage of the matter and possibly obtain a warrant. • He told McConnell of Perkins’ incident that night; his charges, including sexual assault, pornography and voyeurism; his conditions; the timing of the incident; the secluded dark area; his actions in his vehicle with the laptop; and his admission to the constables that he was using unsecured wireless connections. • He told McConnell about the report on the system wherein it stated that other officers had seen him with a laptop and external hard drive on September 13, 2010, also at a late hour.

That information had raised a flag in his mind. • He told McConnell that Perkins initially told him that the computer was owned by a friend named Kevin, (he did not know his last name and did not have a phone number for Kevin), and then Perkins said that it was his father’s computer that he used for work. • There were no Highway Traffic Act issues. • Based on the accused’s history and the fact that he might be deleting pornography, the incident report was forwarded to the sexual assault unit (responsible for child pornography) and to E-Crimes. • Mooers was not aware that Perkins was not released on a promise to appear and that there was a three day hold.

He did not see any reason to hold him. • Ultimately the charge of theft of telecommunications was withdrawn. [ 12 ] P.C. Patrick (“Patrick”) of the D.R.P. testified as follows: • She has been with the D.R.P. for seven years. • She was with her partner P.C.

Henderson (“Henderson”) and they were in uniform in a marked vehicle. • They heard that Mooers and Marriott had been dispatched to a complaint, and they attended for officer safety reasons. • When they arrived at 2:35 a.m. they noticed the vehicle parked on the west side, facing south, with the engine running, headlights off and a male occupant in the driver’s seat. They probably turned on their spotlights. That is their usual practice. • Mooers and Marriott were already speaking with the driver. • They remained in their vehicle and ran a license search on the vehicle which confirmed Swynar as the owner.

The search also came up noting an association with Perkins. They read the information that Perkins had been stopped earlier by an officer sitting in a vehicle in the early hours with a computer. • They learned of Perkins’ criminal record for violent offences and child pornography. • They were advised by Mooers at 3:28 a.m. that Perkins was being arrested for telecommunications theft. • She took custody of Perkins’ vehicle, pursuant to a search incident to arrest. • The items seized by her partner were as follows: (

i) Motomaster digital power inverter; (ii) Blue tooth telephone device; (iii) A wallet; (iv) A Panasonic HD camcorder with power cable; (

v) A blackberry, with a charger; (vi) A Kodak battery for a digital camera; charger with USB cable and MP3 player; and a multi charger USB and charger; (vii) A mouse, a Provincial Offence Notice and an external hard drive with cables in a bag. • She believes that she exited her vehicle after she had the information about Perkins and spoke with Mooers.

She is aware that Mooers was unsure of the charge and was wondering if Perkins was in breach of his conditions by being on the internet. • She thought that the condition in question had something to do with Perkins not being on a social dating site. • She does not know what was the belief with respect to any offence in relation to the electronic devices, other than the laptop. • The vehicle was towed to Jim’s Impound, which is a secure location, although not a D.R.P. lot. [ 13 ] P.C. Janine Henderson (“Henderson”) of the D.R.P. testified as follows:

• She has been with the D.R.P. for seven years. • She was with Patrick in a marked police vehicle, in uniform. They received the information about the vehicle through the computer and went to assist. • When they pulled up they saw the vehicle on the west curb, facing south. There was a single male in the driver’s seat, the vehicle was running and the lights were off. The windows were tinted. She could see light illuminating from the area of the waist of the driver. • Mooers and Marriott were speaking with the driver. • They stayed in their vehicle and ran the plate.

Eventually they got information about Perkins and his extensive criminal history including sexual assault and pornography. • The report also showed two recent street checks that involved Perkins. • They exited their vehicle to see if help was needed and were told by Marriott and Mooers that they were fine. They returned back to their vehicle. • At some point Mooers and Marriott returned to their vehicle. They were communicating through their open windows.

They learned that the driver was Perkins. • She had discovered from the computer check that Perkins had been released on a recognizance and was on current conditions. She retrieved her Criminal Code to try and find out how ‘social media’ were defined. • She observed that Perkins’ head was down, that he was not making eye contact, which she felt was suspicious behaviour.

She advised Mooers and Marriott of this behaviour. • She observed that when Mooers approached the vehicle, Mooers was handed the laptop by Perkins which Mooers placed closed on the hood of the vehicle. • Following Perkins’ arrest after 3:28 a.m. she attended the vehicle and seized the laptop and put it in the back of her vehicle to keep it safe.

Mooers had told her that Perkins was being arrested for telecommunications theft. • She and her partner did an inventory search of the vehicle. • In the center console she found $50 bills totalling $1,250.00, and two expired drivers’ licenses containing Perkins’ photo which were secured on her person (in a pant pocket). • She seized all of the items in the vehicle (listed above), knowing that the vehicle would be towed.

The electronic devices were placed in a bag. • They arrived at the station at 4:23 a.m. • When she got to the station she put the laptop on a desk with the bag containing the other electronic devices. She left the area to count the money at 4:48 a.m., which was then locked up. She believes she was gone for about 10 or 15 minutes. She eventually turned all the property over to Constable Hendrick (“Hendrick”); who has a better knowledge of electronic devices. When she put the laptop on the desk it was not in a marked property bag. There were no other items on that desk.

When she returned she did not notice anything unusual about the desk and nothing had been moved. That area is not accessible to the public. • She had no knowledge that he was using any other devices other than the laptop, and understood that the theft charge was related to his laptop. Her rationale for seizing the other items is that she does not have an in depth knowledge of electronic devices including what can and cannot access telecommunications. [ 14 ] Detective Constable Russell (“Russell”) of the D.R.P. testified as follows: • He has been with the D.R.P. since 2006.

He is with the E-Crimes Unit in forensic analysis. The most common charge on which he normally works is child pornography. This was his first telecommunications theft. • He has an extensive background in computers – starting with his first computer job in 1998. He worked in computers (including stints with IBM and AT &

T) including network administration, setting up servers, etc. until joining policing in 2006. He has numerous certifications in computer systems and analyses as set out in his Curriculum Vitae, which was made an Exhibit. • He has been a user of computers and the internet since a very young age, both as a hobby and a profession. • On September 15, 2010, a computer was brought to his desk when he was not present. He saw it when he got back to the office later that day and he placed it on a secure shelf. • On November 4, 2010, he retrieved the computer from the secure shelf, and dismantled the hard drive.

He connected the hard drive to a blocker, which prevents anything from being destroyed. He used an imager to duplicate (copy) the hard drive. He was able to validate the authenticity of the copy. • A forensic software program called EnCase was used to do the analysis which he had used before, probably 30 or 40 times. • He did not begin the process until November, probably because of his workload.

• On January 6, 2011, he performed a drive geometry to look at the specs of the hard drive. This is done in order to find out whether anything is missing. The hard drive can hold 465.8 gigabytes; 210.3 were used and 255.5 were left unused. • Missing gigabytes can indicate that the hard drive is not fully used or that something is hidden. When you get a new computer (like Perkins’ computer), there are usually no missing gigabytes. • EnCase does an auto preview. When he clicked on lost files the menu came up, however it also automatically previewed the pornographic picture CR8994JPG. He stopped his analysis. • He had earlier reviewed the warrant, which was for (

i) system files and logs and (ii) internet activity. • In his view, he had not made it to the search stage, as he was still at the drive geometry stage. • He was not concerned about the date on the warrant and the dates on which he took his steps, because on September 15, 2010, the computer had been brought to his office. It was his understanding that this was the execution of the warrant and that the analysis could follow. He did not consult with anyone about his understanding. • On January 6, 2011, he used EnCase to analyze the hard drive.

Settings could have been turned off so as to not look for certain things, i.e. photographs. He did not turn anything off and the defaults were those usually utilized by him (including the automatic preview). • He started with unallocated items because they appeared to be encrypted data. He chose not to go directly to the registry file (which he did in February and found what he needed for the telecommunications theft without opening pictures) which is in allocated space.

He wanted to know what was in the password protected area of the computer. • He has no awareness that EnCase has been dealt with in the courts, specifically that some courts are concerned with overly broad searches using EnCase, which essentially amounts to a full search of the computer. • He was aware of Perkins’ history, including the withdrawn child pornography charges. • There was a meeting with the Criminal Investigation Division (“the CID”) about the theft of telecommunications and how he could assist. • He made inquiries into what information is stored historically about Wi-Fi and what information can be garnered post-fact about connections of Wi-Fi’s. • He was aware that when a computer is connected to a Wi-Fi hub, an address is put on the user’s computer – a serial number – establishing the connection which is accessed and is kept in a Windows system. • EnCase can search for certain items; categorize certain items; look for documents in a variety of ways and look for graphics (picture images). • To a certain extent with EnCase you can limit the date and document scope and be very specific about what you are looking for. • He understood that he was to find records of Perkins’ access to other people’s Wi-Fi and to show the internet activity when Perkins was connected to those Wi-Fi’s.

He did not know whether simply connecting to someone’s Wi-Fi constituted the offence and that is why internet activity was included. • EnCase created a lost data file, containing all of the missing files. He made the choice to initially look at lost files.

Because the automatic preview function had not been turned off, the pornographic image automatically was viewed. • He was aware that clicking on lost files gave him information as to what was contained; including photos and that he was potentially looking at data that went beyond the authorization. • He was aware of the filter which allowed for customized searches and the lock box which allowed for the non pop-up of graphic images. • The procedure that he followed with respect to this search was the same one that he uses to search for child pornography. • The easier source to find date and time of internet activity would be from the allocated space because there are difficulties finding accurate dates and times from the lost files (in the unallocated space). • There was nothing stopping him in January from going to the registry file to find out if the required information was present for this very specific search warrant.

He knew that a likely place to find the required information was in the registry file. • He knew EnCase was searching the entire hard drive irrespective of date or location. • On February 16, 2011, he went to the registry file which sorted and found the information that he was looking for regarding the telecommunications theft.

This was a fairly quick exercise. • He found a Linksys wireless that had been accessed, and used an application to get a latitude and longitude of the address from which the wireless internet was accessed by Perkins. • He could have done what he did during the February 2011 search during the January 2011 search.

• He forgot to change the default settings – he neglected to change them – he never considered changing them. [ 15 ] P.C. McConnell (“McConnell”) of the D.R.P. testified as follows: • He was the affiant for the two search warrant applications (“the applications”) and was also the officer in charge following Perkins’ arrest. • He had been told by Mooers and Marriott about Perkins’ arrest for theft of telecommunications. He relied on the information he obtained talking to them, and he relied on their reports in preparing the warrant.

He was not aware that Mooers had a concern that child pornography had been deleted by Perkins at the location, but was aware of Perkins’ history. • He was taken to Mooers’ report at pages six and seven to which he had access and saw.

That report sets out Mooers’ suggestion that a warrant be obtained to search the computer for a number of reasons, including the fact that Perkins may have possibly been deleting evidence – viz , “based on the accused’s past criminal history the accused may have possibly been deleting child pornography”. • He chose to write the warrant for theft of telecommunications, not relying on Mooers’ opinion about the child pornography. • He however brought up child pornography with Perkins when he interviewed him. (The interview is expanded on below.) • When he drafted the search warrant there was no evidence of child pornography.

That is why he wrote the warrant for theft - pornography was out of his mind at the time he wrote the warrant. • He has some knowledge of computers but he consulted with Russell before writing the warrant, who gave him some guidance. • He does not know why the search warrant does not specify a date or time of the alleged offence. • Searching the internet pages being used by Perkins supported an additional element of the crime, that is, to show what he was doing with the theft. • The justice of the peace needed to know about Perkins’ criminal record and history of voyeurism and child pornography, so that he or she would know with whom they were dealing.

It is his practice to include such information. • Although he knew there was no conviction for voyeurism or child pornography, he included what history there was in the overview. He did not include those charges in the conviction section. • He agreed that the criminal history and convictions are not connected to the charge of theft. • When he met with Perkins he inquired if he had spoken to counsel and learned otherwise. He provided Perkins with access to counsel. Prior to that he had not made any inquiries to other officers regarding the status of what had been done about counsel.

Perkins would not talk to him about child pornography or the external hard drive when asked. • He consulted the crown attorney and received some advice, including the steps requesting a 72 hour hold regarding the theft of telecommunications. The fact that they had dealt with Perkins in the past was also a factor in asking for the hold. • He denies that the police took their steps in order to obtain access to the computer to find child pornography and that they obtained the warrant to see if there was pornography. • Perkins had been booked at 3:57 a.m. and came out of his cell at 11:00 a.m. for his interview.

Perkins was back in the cells at 12:28 p.m. • McConnell also retrieved the show cause hearing report, which references “to prevent a continuation of the offence and to protect future victims.” He denied that the comment regarding future victims was in regard to sex crimes and said it was for potential telecommunications theft victims. • The show cause report states: “Clearly the accused has something to hide if he feels he has to leave his residence in the middle of the night to access the internet… If not held, the accused will continue to commit further offences and possibly more sexually related offences.” • He set out in the application that a video camcorder was found in the car.

He knows a camcorder cannot access Wi-Fi. • His comment in the show cause report that “Perkins has only been out of custody for a couple of weeks and is back to his old habits”, meant that Perkins had been earlier cautioned about this activity on September 13, 2010. [ 16 ] The videotaped interview by McConnell of Perkins includes the following: • Perkins was given the caution and right to counsel.

He was told that they were investigating the one charge of telecommunications theft and that he was being held for bail. • Perkins then had the opportunity to speak with counsel. • Upon resuming the interview, Perkins was told that they were asking for the 72 hour hold to complete their investigation. He was told that the external hard drive, computer and camcorder would be investigated. • He was told that they would obtain a warrant and that the computer would be assessed by the “forensic guys” who were good at

looking at deleted things. • He engaged Perkins in a conversation about his probation conditions. • He cautioned Perkins again that he did not need to speak. He told Perkins that he had spoken to the crown attorney and that they wanted to find out what was on his computer. • He left the room and returned.

Upon his return he asked Perkins if he had downloaded child pornography and whether child pornography would be found on his computer or external hard drive. (Perkins did not want to answer.) Factual Findings [ 17 ] At 2:25 a.m. on September 14, 2010, Mooers and Marriott responded to a call in relation to a “suspicious black vehicle” with a lone male occupant parked in front of 449 Bristol Crescent, Oshawa. [ 18 ] Upon arriving at the scene, the officers observed a black car with tinted windows in the noted area. The vehicle was running, without headlights.

Once the officers turned on the cruiser’s spotlights, they could see a male occupant in the driver’s seat. The officers ran the license plate, which returned to a Swynar who resided in Oshawa. [ 19 ] As a result of the complaint, the officers decided to commence an investigation into the lone male occupant.

At no point in time did they have any Highway Traffic Act concerns. [ 20 ] The officers approached the male, subsequently identified as Perkins, and began questioning him about “what he was doing.” Perkins made utterances to the effect of explaining that he was utilizing unsecured wireless internet in the area, proceeding to show the officers the website on his computer screen. [ 21 ] The officers requested Perkins’ driver’s license, ownership and registration, which he produced upon request. The officers then returned to their cruiser and conducted a series of computer checks on Perkins.

These checks turned up “reports of the same sort of activity by other officers within Durham, charges that he was convicted of in the past, i.e., sexual assault, child pornography, and numerous voyeurism charges.” [ 22 ] During the time when the computer checks were being done, it appeared that Perkins was still using the laptop. His head was down and he appeared to be typing. As a result, the officers returned to his vehicle and seized his computer which was closed and placed on the vehicle’s hood.

Perkins made a number of utterances incident to the seizure of his laptop. [ 23 ] Mooers believed that Perkins was committing an offence by using other people’s internet, but did not know the actual charge. The officers were not sure if he was breaching his probation terms. [ 24 ] Prior to closing the laptop, the officers viewed a music website on the screen. At some point during the investigation, Henderson and Patrick also attended the scene “for officer safety.” Mooers requested that a supervisor attend the scene so that he could discuss with him exactly what was occurring.

Jones arrived on scene shortly following the seizure of Perkins’ computer. [ 25 ] Pursuant to a discussion with Jones, Mooers formed the grounds that Perkins was utilizing other people’s Wi-Fi on his laptop, and that he was committing the offence of theft of telecommunications. The reasonable and probable grounds leading Mooers to believe that Perkins was committing the theft of telecommunications include the following: (

i) the time of the day; (ii) the residential location; (iii) the fact that the vehicle was running with no headlights; (iv) the lone occupant; (

v) the statements made by Perkins; (vi) past reports written by other officers of the same sort of conduct; and (vii) his discussion with Jones. [ 26 ] At 3:28 a.m., approximately one hour after the police arrived at the location, Perkins was placed under arrest for the offence of telecommunications theft. He was provided with the standard caution and right to counsel at this time. Perkins expressed a desire to contact his counsel of choice. He was taken to the station by Mooers and Marriot. [ 27 ] Patrick and Henderson arrived at the scene at some point prior to Perkins’ arrest.

Upon their arrival, Mooers and Marriott were speaking with Perkins. Incident to Perkins’ arrest, they took over custody of the subject vehicle and searched it, seizing a wide range of items from the vehicle including the laptop. A list of the seized items is included in the Application Record. [ 28 ] Perkins was paraded in front of A/Sgt. Graham (“Graham”) at approximately 3:41 a.m. Perkins again advised that he wished to speak with his counsel of choice, White. Mooers placed a call to White at 4:33 a.m. and left a message with his office. Mooers has no explanation for the delay in placing that call.

He does not know if White’s office called back. He did not place a call to duty counsel. [ 29 ] Perkins did not speak to counsel until a second call was placed on his behalf by McConnell at 12:01 p.m., approximately ten hours after he was initially detained. [ 30 ] McConnell became involved in the investigation once Perkins was in custody. He was advised by Mooers that several items were seized as a result of the search incident to arrest, including a laptop, an external hard drive, a video recorder, and a few other electronic items. [ 31 ] McConnell was the affiant of the ITOs.

Although his evidence is that pornography was out of his mind when he wrote the warrant, I do not accept this evidence. The following evidence illustrates that the officers were concerned about child pornography and wanted to search the computer for that purpose. (

i) Mooers’ report states “based on the accused’s past criminal history the accused may have possibly been deleting child pornography.”; (ii) the inclusion in the warrant application of comments that reference Perkins’ criminal record and history including voyeurism and child pornography investigations; (iii) McConnell’s discussion with Perkins, in the

interview room, which establishes that other than telling Perkins that he was being charged with telecommunications theft, he asked himno questions about that charge but did ask him about whether he had child pornography on his computer or external hard drive; (iv) theinformation in the show cause report which includes McConnell’s comment that without the 72 hour hold, Perkins will possibly continueto commit more sexually related offences. [32] McConnell did not re-caution and repeat Perkins’ right to counsel when the focus of his investigation switched from theft to childpornography. [33] The search warrant was granted on September 15, 2010, and restricted the ability of police to search the contents of Perkins’laptop to September 15, 2010, between the hours of 10 a.m. and 5 p.m.

On September 15, 2010, the laptop was removed from one areaof the station and placed on Russell’s desk where he saw it later that day and placed it on his secure shelf. Russell has vast experiencewith computers. I do not accept his evidence that this act was the execution of the warrant which allowed him to delay his subsequentsteps. The laptop was not touched until November 4, 2010, when he obtained an image of the hard drive. [34] The defence relies on R. v.

Cross in support of their argument that the decision to take an “image” of Perkins’ hard driveconstituted an overly broad search in the context of the particularized warrant. In R. v. Cross, the search warrant obtained provided thatthe police could search the computer for information concerning an email of August 6, 2005, sent from “Kelly Huizer” to “Jeff.” Constable Vuyk (“Vuyk”) searched for this email, and that search led to charges of possession of child pornography. Vuyk made a copyor “forensic image” of all the data on the entire hard drive using EnCase.

The court concluded that the procedure utilized by Vuyk inmaking a complete “image” of the computer’s hard drive constituted a violation of the specifically authorized search terms as set out bythe search warrant. Specifically, the court stated the following: 24 Constable Vuyk said he did not think taking that step was a violation of the search warrant of November 18, 2005. In my view itwas. This intrusion into the realm of privacy illustrates exactly what

Section 8 is intended to prevent. Only a judicial officer, providedwith the full and frank disclosure required under

Section 487 of the Code, may make the decision to authorize such a search, and itshould be made before any search takes place. 25 In my view

section 8 of the Charter requires prior judicial authorization of any police search of personal computer data. A searchwarrant is the judicial officer's order, to be faithfully executed by police officers. It does not delegate to police the discretion to decidewhat may be examined. If police training of the kind received by Constable Vuyk were to have the effect of making it a common practiceto copy and search the memory of a personal computer without prior judicial authorization, there is reason to be concerned that asystemic failure of justice would arise in respect of the

Section 8 Charter right. R. v. Cross, [2007] O.J. No. 5384 (Ont. S.C.) at paras. 24-25. [35] R. v. Cross, however, can be distinguished. By the terms of the warrant, the police were explicitly prohibited from accessing orcopying any other portion of the memory or hard drive. The justice of the peace had specifically written on the warrant “Peace officers tolimit search to information concerning e-mail of August 6, 2005 from “Kelly Huizer” to “Jeff”. No other portions of memory or harddrive to be accessed or copied.” In the present case, there was no specific prohibition against making a copy of the hard drive.

R. v. Cross, supra at para. 21. [36] Similarly, although the court in R. v. Beitel found that it was unreasonable for the investigating officer to have made a completemirror copy of the contents of the computer’s hard drive, in that case, the issue was whether or not the computer was stolen. The officerwho made the copy did not examine the serial number to determine its ownership, speak to the involved officer about the initialinvestigation, review the occurrence report, or conduct any other independent inquiries to ascertain ownership. Moreover, the copy wasmade without a search warrant. R. v.

Beitel, 2011 ONSC 5394, 243 C.R.R. (2d) 296 at paras. 2, 25-26. [37] In R. v.

Little, the court found that the manner in which the police conducted a search of a computer was unreasonable; however,the fact that a copy of the hard drive was made (when there was no prohibition in the warrant from doing so) was not unreasonable: 163 I also find that the manner in which the police conducted the search was unreasonable. 164 The warrant did not require that any particular protocol be followed in searching the computer, nor did it specify, as in the case ofCross, that only specific portions of the hard drive could be accessed or copied.

The manner in which the search was carried out involvedimaging the hard drive in its entirety (including deleted files not overwritten), and indexing the contents, meaning organizing the contentsinto files bearing general labels. I accept that the entire hard drive was imaged so that the search could be carried out on a copy of thecontents, and the integrity of the original data would not be put at risk.

It may be that complete imaging of a hard drive will not always beappropriate, but it was not unreasonable in this case given the nature and scope of the data sought by the warrant. 165 The problem lies with the way in which the police reviewed the imaged and indexed information. R. v. Little, (ON SC), [2009] O.J. No. 3278 (Ont. S.C.) at paras. 163-165. [38] Although it was argued that copying the entire hard drive was overly broad and unlawful, I find that it was necessary to preservethe integrity of the evidence. [39] The contents of the Perkins’ hard drive were not examined until January 6, 2011.

I do not accept Russell’s evidence that he was

not searching the laptop, but rather was taking his preparatory steps on November 4, 2010, and January 6, 2011. I find that he was searching the laptop on January 6, 2011, and that he was attempting (unsuccessfully) to justify his timing – the execution of the warrant well after the date of authorization. [ 40 ] Russell knew what the search warrant authorized him to do; that it was very specific; and that it was aimed at theft of telecommunications. On January 6, 2011, he utilized the EnCase program in a way that exceeded the authorization of the warrant. He chose to go first to the unallocated

section of the hard drive and open up lost files, which in turn automatically previewed the pornographic photograph. He knew he could have changed the default settings, including deactivating the automatic preview. He was aware that by clicking on lost files that this could access photographs. He knew that the easier and more accurate way to access the date and time of the internet activity was to go to the allocated space.

He knew that the likely place to find the material which was the subject matter of the warrant was in the registry file. [ 41 ] On February 16, 2011, he found the information he required to establish the theft of telecommunications by accessing the registry file reasonably quickly and without accessing any photographs. That is what he should have done in January (although he actually needed to do the search or at least get it started during the time period on the warrant).

Issue 1 – Detention [ 42 ] At what point was Perkins detained by Mooers and Marriott and was his detention unlawful pursuant to s.9 of the Charter ? The Law on Detention [ 43 ] R. v. Grant and its companion cases provide the Supreme Court’s pronouncement on the question of when an individual is considered “detained,” such that an individual’s s.10 rights become operative. The court provides a general delineation of the meaning of “detention” as follows: 44 …Detention under ss.9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 44 [“ R. v. Grant (2009)”] . R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460 . [ 44 ] In a circumstance where an individual has a legal obligation to comply with police demands, he or she is automatically considered to be detained.

Most obviously, when an individual is operating a motor vehicle he or she has a legal obligation not only to stop for police, but also to provide police with a driver’s license, ownership and registration of the vehicle. R. v. Harris , 2007 ONCA 574 , [2007] O.J. No. 3185 .

When was Perkins Detained and Was the Detention Arbitrary? [ 45 ] The crown concedes that Perkins was detained sometime after the point when the police initially checked with him and asked what he was doing, etc., and before he was arrested. [ 46 ] In response to a concerned citizen’s complaint about a “suspicious vehicle”, Marriott and Mooers approached the vehicle. Upon approaching Perkins, who was seated in the driver’s seat with a laptop, the officers asked him what he was doing. He responded that he was surfing the internet using other people’s unsecured wireless internet.

Frankly, at that point Perkins provided the police with enough information confirming the commission of a criminal offence and he could have been arrested at that time. Mooers had the requisite reasonable and probable grounds to arrest Perkins for the offence of theft of telecommunications. The observation by the police of Perkins seated in the driver’s seat of a parked and running motor vehicle without headlights in a residential area at 2:34 a.m., using a laptop, and the admission that he was using other people’s wireless internet, constituted subjective grounds to arrest him that were objectively reasonable.

There was however some confusion on the officer’s part as to what offence it comprised. [ 47 ] During that interaction, Perkins identified himself upon request and provided his driver’s license, ownership and proof of insurance to the officers who took his documents to their cruiser. [ 48 ] Initially, during this interaction when Perkins told the police what he was doing, he was not detained. Therefore, there was no requirement to provide him with his

Section 10(

a) and (

b) rights at that point. As a result, his utterances about what he was doing can be relied upon by the police for their eventual arrest; the search incident to arrest; and the application for the search warrant. [ 49 ] However, once Perkins was asked for and provided his identification, he became detained. He had a legal requirement to comply with the demand to provide his documents. At that point he should have been given his

Section 10(

a) and (

b) rights. He was not given those rights for about another 40 minutes. The crown concedes that any utterances made by Perkins following detention are to be excluded. They are excluded. [ 50 ] The officers continued their investigation and conducted computer checks on Perkins. Perkins had no reasonable expectation of privacy in the information contained in police computer systems and therefore the checks conducted by the police using police databases did not amount to an unreasonable search.

Those steps, checking his name on CPIC and other police data bases, were not an unlawful search and seizure. [ 51 ] Perkins’ detention following the request for and provision of his identification was not an arbitrary detention. It was not unlawful pursuant to s.9. Perkins had admitted to the use of other individuals’ unsecured wireless internet and was detained by Mooers

and Marriott so that they could conduct an investigation based on this admission. Issue 2 – The Seizure of the Computer – Was it Lawful? [52] After Perkins was detained, the officers returned to their vehicle and ran computer searches on Perkins, from which theyuncovered his criminal record and history, including charges for voyeurism and child pornography. They testified that while in theirvehicle they saw him typing on his computer and felt that he might be deleting child pornography.

They returned to his vehicle andseized his personal computer and placed it closed on the hood of his car. [53] It was submitted by the crown that the police were acting according to their common law duty to prevent crime when they tookthe laptop and placed it closed on the hood of Perkins’ vehicle while they continued their investigation. I do not accept this submission. The crown submits that the common law duties of police have been described as the preservation of the peace, the prevention of crimeand the protection of life and cites R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), and R. v.

Willis, 2003 MBCA 54 , [2003]M.J. No. 117 (Man. C.A.). [54] These cases, however, do not support the crown’s position that the officers had the power to seize the accused’s laptop. R. v.Waterfield quotes a 1925 British case (Glasbrook Bros. Ltd. v. Glamorgan County Council, [1925] A.C. 270) which states that there isan absolute and unconditional obligation binding the police to take all steps which appear necessary for keeping the peace, preventingcrime and protecting property from criminal injury. In R. v.

Waterfield, the court found that in attempting to detain a vehicle, the officersinvolved had acted outside their powers. “Thus, while it is no doubt right to say in general terms that police constables have a duty toprevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when theexecution of these general duties involves interference with the person or property of a private person, the powers of constables are notunlimited.” [55] In R. v.

Willis, at issue was the search police had conducted on a man who they suspected of being involved in a break and enter.The Manitoba Court of Appeal considered what kind of search incident to detention is appropriate. “A minimal search incidental to alawful detention can be reasonable provided that the purpose of the search is to ensure the safety of the police and ‘any passing public’.”An officer must have both a subjective and an objective belief that a search is necessary for officer safety.

The crown in R. v .Willisargued that a search incidental to detention is not limited to safety reasons but can extend to a minimally intrusive search directed atconfirming or alleviating suspicions. The Manitoba Court of Appeal rejected that argument: 42 Equating a search incidental to detention with one incidental to arrest does not adequately recognize the fact that detention mayoccur when there is only reasonable suspicion, while arrest requires reasonable and probable grounds.

An investigatory detention is anexception to the general rule that short of reasonable and probable grounds to arrest, a citizen is free to proceed without constraint byauthority. Given its exceptional nature, a search incidental to an investigatory detention has generally been strictly circumscribed. Wemust be mindful of the expansion of police power as it affects individual freedom. Acceptance of the Crown's argument on this pointwould require an expansion of the law in this area that must include careful study of the possible ramifications, one that will not beattempted in this case.

I am satisfied on the evidence that this search incidental to this detention was objectively necessary for thepurposes of officer safety. [Footnotes omitted.] R. v. Willis, supra at paras. 33, 35, 37, 39, 42. [56] R. v. Willis deals with search, not seizure. It is not authority for a common law power to seize items - such as a laptop computer -incident to detention. If anything, it stresses that the actions (specifically searches) taken incident to detention are for the limited purposeof the safety of the officer and of the “passing public”. R. v.

Mann, cited by the defence, confirms this point: that is, a search incident toinvestigative detention is limited to ensuring officer safety, and does not extend to searches to obtain evidence of an offence: 45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonablegrounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

Inaddition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engagein a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonablemanner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police.

The investigative detention and protective search power are to bedistinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45. [57] The defence highlights the limitations of the common law powers of the police. In R. v. Mann, the Supreme Court also notedthat the police powers and duties are not always correlative as there must be proper consideration of the importance of individualliberties: 35 Police powers and police duties are not necessarily correlative.

While the police have a common law duty to investigate crime,they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to theCanadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do nothave carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

R. v. Mann, supra at para. 35. [58] The police could have asked Perkins to close his computer. They should not have seized his computer. Their seizure of hispersonal computer was without any legal basis and was a warrantless seizure. It cannot be said that this was the result of a common lawduty to seize an item to protect the police or the public. The police’s common law duties do not empower them to undertake any and allaction in the exercise of that duty.

This seizure was a breach of Perkins’ Charter rights. [59] After the arrest, the officers searched Perkins’ car and seized all electronic devices and cords, etc. At best it can be said that thelaptop and external hard drive could have been related to telecommunications theft. All other items should not have been seized andwere seized in violation of his Charter rights.

The officers could not even explain any rationale for taking these other items, other thanthey were not aware of the nature of the devices. [60] The crown submits that there was a valid objective to the search of Perkins’ vehicle, namely, to find evidence relating to thearrest, and that the seizure of all of the items was reasonable in the circumstances given the offence for which Perkins had been arrested.The defence submits that pursuant to R. v. Caslake, a search incident to arrest is only lawful in the following circumstances. The arrestmust be lawful and the search executed in a reasonable fashion.

The remaining factors revolve around an objective/subjectiveconsideration as to whether the purpose(

s) underlying the search are truly incidental to the arrest: 19 As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attemptingto achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking forand why.

There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a validsearch incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the searchmust be a reasonable one. 22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there mustbe some reasonable prospect of securing evidence of the offence for which the accused is being arrested.

For example, when the arrest isfor traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (seeBelnavis, supra). 23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident toarrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehiclein relation to the place of the arrest, and other relevant circumstances. 25 In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common lawdoctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that thesearch must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated inCloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, whythey searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrest forconducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do notautomatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, thatinference may be rebutted by a proper explanation. R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at paras. 19, 22-23, 25. [61] In any event, nothing turns on the overly broad seizure as the crown is only relying on Perkins’ computer as part of their case. Issue 3 -

Section 10(

a) and (

b) Rights: When Should Perkins Have Been Given Those Rights and Should They Have BeenRepeated? Implementation of Right to Counsel [62] The Supreme Court of Canada in R. v. Ross, (SCC), [1989] S.C.J. No. 2 stated the following: 15 In the case of the appellant Ross, there is no evidence that the police even asked whether he wanted to call another lawyer. OnceRoss had tried and failed to reach his lawyer, it would appear that the police assumed their obligation to provide a reasonable opportunityto retain counsel was at an end.

One can reasonably infer that they also misconstrued the nature of their obligation as concerned theappellant Leclair. Obviously, there was no urgency or other reason justifying that the police proceed forthwith and it cannot be said thatthe appellants had a real opportunity to retain and instruct counsel. [63] The Ontario Court of Appeal stated the following in R. v. Nguyen, 2008 ONCA 49 , [2008] O.J.

No. 219 at paragraphs16, 18 and 20: 16 The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification ofthe common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common lawright was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless thecircumstances are such that he or she knows why.

The reasons do not need to be expressed in technical or precise language, but must, insubstance, inform the person as to the reason why the restraint is being imposed.

18 This court’s pronouncement in Kelly was later affirmed and expanded by the Supreme Court of Canada in R. v. Evans (1991), (SCC), 63 C.C.C. (3d) 289. McLachlin J. stated at p. 302: The right to be promptly advised of the reason for one’s detention embodied in s.10(

a) of the Charter is founded most fundamentally onthe notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly …A second aspect of the rightlies in its role as an adjunct to the right to counsel conferred by s.10(

b) of the Charter. As Wilson J. stated for the court in R. v. Black(1989), (SCC), 50 C.C.C. (3d) 1 at p. 12, … “[a]n individual can only exercise his s.10(

b) right in a meaningful way ifhe knows the extent of his jeopardy”. In interpreting s.10(

a) in a purposive manner, regard must be had to the double rationaleunderlying the right. 20 It is clear, therefore, that while the main purpose of s.10(

a) is to inform an individual of why he or she is being detained, it also has animportant secondary aspect as an adjunct to the right to counsel conferred by s.10(b). Specifically, the purpose of s.10(

a) is also toinform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s.10(

b) in ameaningful way. The purpose of s.10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her rightto silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), (SCC), 57 C.C.C. (3d)1 (S.C.C.). As to the difference in language between ss. 10(

a) and 10(b), I return to this court’s holding in Kelly at p. 424: [64] The Ontario Court of Appeal stated the following in R. v. Sawatsky, (ON CA), [1997] O.J. No. 3561 atparagraphs 30 and 36: 30 The link between a detained person’s need to understand the extent of her jeopardy; that is the nature and extent of her risk ofself-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will berequired to reiterate the right to counsel in the course of an ongoing detention.

If the risk of self-incrimination changes, the right tocounsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk maychange either because the reason for the detention changes or the focus of the police inquiry changes. 36 Considering the purpose underlying s.10(

b) and its fundamental importance in maintaining the fairness of the criminalinvestigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s.10(

b) rights. The police should beencouraged to re-advise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. Theadministration of criminal justice is better served by a restatement of the detainee’s s.10(

b) rights which is a little early than one which istoo late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a differentand unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee’s right to counsel andconnect that right to the new allegations. [65] Perkins should have been given his 10(

a) and (

b) rights immediately when he was detained. He was not provided with thoserights for approximately 40 minutes, following his arrest. There is no plausible explanation for this delay. I do not accept the officers’evidence that they were trying to figure out how to charge him. They knew he was committing a criminal offence given his admissionthat he was using other people’s unsecured wireless internet – clearly an offence of theft. [66] By the time of his arrest, he had already been detained, his laptop had been seized, and he had made several utterances andactions tending to incriminate himself.

I have already found that his initial utterances before detention are not excluded, but that allutterances following detention are excluded. The actions of the police, in not immediately providing Perkins his s.10 rights upondetention, constitute a clear violation of his Charter rights. [67] That breach gets worse. After Perkins asked to speak to counsel of his choice, Mooers placed a call to White about an hour afterarrest, and left a message with White’s office. He has no explanation for the hour delay in placing the call.

He did not contact dutycounsel to have Perkins speak with duty counsel, nor did he do any follow-up with respect to White. (This is similar to R. v. Ross wherethe court confirms the duty to follow up a request to reach counsel). About ten hours passed before McConnell placed Perkins in touchwith counsel. McConnell had become the officer in charge of the case that morning. He clearly did not pursue this issue until he tookPerkins into the interview room. That represents a further Charter violation. [68] The breach continues.

When Perkins spoke with his counsel he was only able to advise his counsel that the jeopardy he facedwas with respect to the telecommunications theft charge. After speaking with counsel, McConnell’s interview with Perkins continued. Perkins was asked directly about child pornography and whether one would find it on his computer or external hard drive. When thefocus of the investigation changed (or more likely manifested itself), Perkins should have been re-advised of his rights – that is to say, re-cautioned and re-read his right to counsel.

It is very interesting and noteworthy that during the interview, McConnell did not ask Perkinsa question about anything related to theft of telecommunications. Instead, Perkins was asked about child pornography – the charge inwhich the police were interested after they determined his criminal history from their computer checks. The police were not interested intelecommunications theft. I find that to be pretextual. The police were only interested in the child pornography.

Perkins was not toldthe true reason for the detention and was not given the opportunity to speak to counsel about that true nature of his arrest. This is afurther breach of his Charter rights. (See R. v. Nguyen wherein the court confirms the duty to advise of the correct reason for thedetention.) Issue 4 - The Search Warrants [69] On September 15, 2010, MacDonald granted a s.487 search warrant, pursuant to the affidavit of McConnell, authorizing a searchof the laptop Perkins was utilizing at the time of his arrest.

The warrant permitted a search of the computer for “system files and logs” aswell as “internet activity,” in order to obtain evidence in relation to the offence of telecommunications theft. The warrant authorizedpolice to search the computer between the hours of 10 a.m. and 5 p.m., on Saturday, September 15, 2010. [70] Perkins challenges the Information to Obtain (“ITO”), submitting that much of it is improper, ought to be excised, and/orrendered invalid for the following reasons:

(

i) The items to be searched for as laid out in Appendix ‘A,’ “system files and log” and “internet activity,” with no additionalqualifications or limitations, are so overly broad such that the warrant is invalid; (ii) The request to search for the particulars of Perkins’ “internet activity” is an irrelevant, unlawful ‘fishing expedition’ that isirrelevant in terms of proving the offence of theft of telecommunications; (iii) The inclusion of Perkins’ criminal history is irrelevant, prejudicial, and, at times, inaccurate. (iv) Some of the utterances made by Perkins to the officers were made in violation of his Charter rights and should be excised.

Law Pertaining to Search Warrants Obtaining a Search Warrant and Requirements of a Search Warrant [71] If a search warrant was not properly issued, the court must determine whether the search or seizure was unreasonable under s.8and, if so, decide if evidence should be excluded pursuant to s.24(2) of the Charter. [72] In Hunter v. Southam, the Supreme Court of Canada defined the standard for obtaining prior judicial authorization for a search.

In balancing the competing interests of crime investigation and expectations of privacy, the Supreme Court of Canada noted, “the state’sinterest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion”.

The court went on to hold that the minimum standard, consistent with s.8, for prior judicialauthorization is “…reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that thereis evidence to be found at the place of the search…” Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., (SCC), [1984] 2 S.C.R.145 at pp. 167-168 [“Hunter v. Southam”]. [73] As enumerated by the court in R. v. Mahmood: Our courts have repeatedly held that "mere suspicion" does not amount to reasonable and probable grounds.

It is colloquially said that awarrant is not a fishing licence and it cannot authorize fishing expeditions: R. v. Serendip Physiotherapy Clinic, (ONCA), [2004] O.J. No. 4653 (Ont. C.A.) at para. 35; leave to appeal to S.C.C. refused (S.C.C.).

That evidence may be found in a particularlocation or in the possession of particular persons that could substantiate charges will nevertheless form an inadequate basis to justify theissuance of a search warrant in the absence of a reasonable belief or reasonable probability that amounts to more than mere possibility orhope of obtaining material evidence of the commission of a criminal offence. R. v. Mahmood (2008), (ON SC), 236 C.C.C. (3d) 3 (Ont.

S.C.) at para. 85. [74] When reviewing a search warrant pursuant to a defence challenge, the reviewing justice has to determine, on the basis of theedited record presented to him or her (after eliminating erroneous, misleading and irrelevant information) whether the authorizing justicecould have granted the search warrant. R. v. Garofoli, (SCC), [1990] S.C.J. No. 115. R. v. Araujo, 2000 SCC 65, 149 C.C.C. (3d) 449. R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. [75] The affiant has a duty to “state investigative facts sufficient to establish reasonable grounds for believing that an offence has beencommitted, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specifiedplace”. Because search warrants are “place specific,” “it is essential that a search warrant information set out reasonable grounds toestablish that things which will afford evidence will be located in a specific place”. R. v. Sanchez (1994), (ON SC), 20 O.R. (3d) 468 (Ont. Ct. Gen.

Div.) at paras. 20 and 40 – 41. [76] In addition to excising false, misleading or inaccurate information, the reviewing judge must also excise all illegally orunconstitutionally-obtained information from the ITO as part of the redaction process. For example, evidence obtained during a search

under warrant must be excluded under s.24(2) of the Charter where the warrant was procured through an information which containedfacts solely within the knowledge of police as a result of a Charter violation. In circumstances where the information contains other factsin addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant wouldhave been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra.

Inthis way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrantswhich would have been issued in any event. R. v. Grant, (SCC), [1993] 3 S.C.R. 223 at para. 50. [77] If information included in the ITO was obtained in breach of a Charter right, that information must be excised regardless ofwhether that information would have been excluded under Section 24(2) had the crown attempted to adduce it at trial. [78] The court in R. v.

Mahmood stated: Apart from the question whether the Tower Dump Records ought to be excluded from evidence under subs. 24(2), an analysis whichfollows below, it is inescapable that once the Tower Dump Records are regarded as having been obtained in violation of the Applicants's.8 rights, with no reasonable or probable grounds having been present upon which a justice, acting judicially, could have issued thosewarrants, the Subscriber Warrants also must necessarily fall.

Once the November 30 Tower Dump Warrants are characterized as sub-facially invalid and in violation of the Applicants' s.8 rights, then it follows that the results of those warrants must be excluded inassessing the validity of the subsequent warrants. The unconstitutionally obtained evidence that flowed from the November 30 TowerDump Warrants cannot provide an informational basis for the subsequent December 8 Subscriber Records search warrant, or indeed, forthat matter, the December 19, 2006 Residential Warrants: R. v. Grant above, at para. 29: R. v. Kokesch, above, at paras. 16-22. R. v.

Mahmood, supra at para. 97. [79] Due to its potential inflammatory, prejudicial and misleading nature, the inclusion of a person of interest’s criminal history orpolice contact in an ITO is treated by reviewing courts with special scrutiny. Affiants must take particular care only to include criminalhistory that is unquestionably relevant, and they must ensure that any conclusions or inferences they draw from this information areproper and grounded in an accurate recitation of the facts. Failure to do so results not only in the excising of the offending information,but may, as seen in R. v.

Sismey, be considered sufficiently misleading such that the entire search warrant must be quashed. R. v. Sismey (1990), (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.). [80] While police contact may be relevant to a purpose other than demonstrating the criminality of the person of interest, generallyspeaking, the inclusion of criminal history in an ITO is relevant only if the noted individual was convicted of an offence similar to theone at issue in the search warrant application, and if the affiant utilizes this information to assist him or herself in drawing a properinference.

Inclusion of criminal history in order to suggest a “general propensity for criminality” is improper and prejudicial. Furthermore, the inclusion of data from a police investigation that did not lead to criminal charges is rarely relevant and largelyprejudicial. R. v. MacDonald, [2005] O.J. No. 551 (Ont. S.C.) at para. 54. [81] A search warrant order must set out with sufficient particularity the items to be searched for and seized.

A failure to do so resultsin a facially invalid warrant that must be quashed. [82] In Reference Re Times Square Bookstore and R (1985), the Ontario Court of Appeal concluded that the search warrantauthorizing a search for “obscene magazines” was overly broad such that the warrant was defective. The court’s findings in this regardare as follows: 34 [T]he warrant itself is defective. The particulars pertaining to the location of the unnamed magazines and the scenes shown ontheir covers are not included in the warrant.

As a result of these omissions, more is left to the discretion of the police officers todetermine what is obscene than is acceptable. The warrant must therefore be quashed and the appeal dismissed. In passing, it can be seenthat, if the warrant had been worded with the same particularity and detail as the information presented on the application, it would havebeen valid. 41 Lastly, it must be remembered that the role of the motions court judge hearing an application to quash a search warrant is limited.He may not substitute his opinion as to the sufficiency of the evidence for that of the justice of the peace.

Rather, the motions courtjudge must do no more than determine two issues: first, whether or not there is evidence upon which a justice of the peace, actingjudicially, could determine that a search warrant should be issued; and secondly, whether the warrant contained sufficient particulars ofthe items to be seized that it could not be said that the discretion of the police officer was substituted for that of the justice of the peace asto the items to be seized. Reference Re Times Square Bookstore and R (1985), (ON CA), 10 O.A.C. 105 (Ont. C.A.).

[83] Reference Re Times Square therefore sets out a number of important principles. First, one of the roles of the reviewing justice isto determine whether the warrant contains sufficient particulars such that the discretion of a police officer was not substituted for that ofthe justice of the peace as to the items to be seized. Secondly, the warrant must set out, with the same particularity as the informationused in support of the application, the items which may be seized.

Whether the ITO is comprehensive and detailed in this regard is,given the law regarding warrants, irrelevant vis-a-vis the question of whether the search warrant is facially valid. And finally, a failureto provide the requisite particulars in the items for which one can search results in a defective warrant. [84] In R. v. Khan, the court found the search warrants in issue were grossly deficient because they essentially authorized a carteblanche search and seizure of every single document, object, and computer-related item contained within the premises to be searched.

As stated by the court: 56 The combined effect of the failure to qualify many if not most of the listed categories either by date, entity, or by connection withthe targeted operation led to warrants that essentially purported to authorize a search and seizure without limit. I think the applicant'sposition that these warrants essentially purported to countenance the seizure of virtually every single piece of paper, and every item ofelectronic data, relevant or otherwise, located within the two premises, was well-founded. R. v. Khan (2005), (ON SC), 133 C.R.R. (2d) 29 (Ont.

S.C.). [85] In setting out the governing principles with respect to whether the items to be searched for pursuant to a search warrant aresufficiently particularized, the court provided the following guidance: 1. The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche torummage through the premises of the target. A "good deal of specificity" with regard to the things to be searched for and seized isrequired. 2.

The things must be described in such a way as to guide the officer or officers carrying out the search and assist them in identifying theobject. 3. In an appropriate case, the warrant may authorize the seizure of classes of things, including documents. However, such classes shouldnormally be limited both with respect to time and with respect to their relationship to the crime or crimes in connection with which theyare said to afford evidence.

In determining the requisite degree of specificity, a court should consider: whether or not the warrant setsout "distinct categories for example, whether it depends on or is related to a specific company or individual; a court assessing theadequacy of the particularization in the warrant should examine it for limiting words or descriptors, such as "the above describeddocuments to be searched for are to relate to" a specific time period, and "all of the above described things to be searched for to relatedirectly to the below described offences".

In other words, a court may consider whether or not the description of the items to be searchedfor contains a direct reference to the offence under investigation, thereby setting out a clear nexus for the officers executing the warrantbetween the items to be searched for and their relationship to the crime alleged. In the alternative, the description may incorporate theoffence by reference to the part of the warrant that describes the offence. 5. Some items, for example, a particular book, letter or business agreement can and should be described with specificity.

In respect ofthese kinds of items, a police officer executing a warrant ought not to be given or be permitted to exercise any discretion. Where,however, by the very nature of the things to be searched for it is not possible to describe them with precision or considerableparticularity, for example, business records, books of account and financial statements, it is inevitable that the executing officers willhave to exercise some discretion in determining whether the things found fall within the description of the things or classes of thingsdescribed in the warrant.

In determining whether or not a reasonable amount of discretion is delegated to the executing officers, regardmust be paid, once again, to the degree of sophistication and complexity of the organization and the offence under investigation. 6. The information and resulting warrant should be viewed as a whole and should not fall as a result of some relatively minor defects thatmay be found on microscopic examination. Each case mus

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