nan PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to s. 486.4(1) of the Criminal Code such that any information that could identify the complainant or witness shall not be published in any document or broadcast or transmitted in any way. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 99 Date: 2017 04 10 Docket: CRM 100 of 2016 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and DEAN FRANKLIN LOMMERSE Counsel: Maura Landry for the Crown Brian Smith for the accused JUDGMENT MEGAW J. APRIL 10, 2017 Introduction [1] The accused has applied to exclude certain evidence discovered by the police during the execution of search of the accused’s computer and cellular phone. The initial determination of whether there had been violation of the accused’s s. Canadian Charter of Rights and Freedoms [Charter] right occurred by the judgment dated January 3, 2017. The issue of exclusion of evidence pursuant to s. 24(2) of the Charter was not determined at that time. At the initial voir dire, there had been no evidence presented of either the nature of the evidence seized nor the location from which it was seized. Accordingly, it was not possible, at that time, to enter into s. 24(2) consideration. [2] Following the judgment of January 3, 2017, it was proposed by counsel, and agreed by the court, the Crown would proceed with its case, calling all of its evidence, following which s. 24(2) determination would be made. As result, the trial resumed on February 6, 2017 with the Crown presenting all of its evidence. The results of the seizure were marked as exhibits for identification. The determination of their ultimate admissibility was to await completion of argument on s. 24(2) analysis. [3] That argument has now been completed. This is the judgment determining the admissibility of the exhibits tendered by the Crown. Following this determination, the accused will then present his case. [4] The background to the Regina Police Service obtaining search warrant [warrant] is contained in the judgment dated January 3, 2017. For the purposes of this decision, that background determined Cst. Howell, the investigating officer, had obtained warrant which authorized search of the accused’s computer devices. The Information to Obtain [ITO] in support of the warrant sought only search of the “search history on the computer.” The Crown and the accused presented the case on the basis that this was the limit set forth in the warrant, and, it was on that basis the earlier judgment was determined. [5] Cst. Howell testified on the voir dire that after the complainant’s statement was completed, she told the officer the accused had also taken picture of her while she was naked and in the shower. This information was not included in the ITO. Accordingly, there was no request made in the warrant to search for pictures on the accused’s computer devices. The Crown sought to introduce this further information of the complainant as amplification evidence to expand the scope of the warrant. That application was dismissed in the earlier judgment. [6] At the voir dire, Cst. Howell testified he delivered the seized material, for these purposes consisting of laptop computer and cell phone, to Sgt. Kuan, computer forensic specialist with the Royal Canadian Mounted Police. He testified he gave Sgt. Kuan instructions to search for the following: 1. General search of the internet history; 2. Pictures of the complainant; and 3. Messages between the complainant and the accused. [7] An assistance request was completed by Cst. Howell and provided to Sgt. Kuan. This assistance request was not marked as an exhibit on the voir dire or the trial. As result, that document does not form part of the evidence before the court. However, Cst. Howell testified that it was he who delivered the computer and the assistance request to Sgt. Kuan. The Crown applied to have the evidence given by Cst. Howell on the voir dire admitted on the trial proper. That application was granted. [8] The Request for Assistance said to be completed by Cst. Howell was read into the record at the voir dire. The wording of that Request for Assistance is different than the Assistance Request marked as Exhibit P11 at the trial. [9] Cst. Logan testified at the trial. At the time of this matter, he was member of the ICE Unit within the Regina Police Service. He and Cst. Howell worked together in this unit. He was qualified as an expert in the field of internet child exploitation including the categorization of images and videos depicting such. He has much experience dealing with child exploitation matters. [10] Cst. Logan testified he became involved in this investigation through Cst. Howell. He indicated it was he who sent the Assistance Request, Exhibit P11, to the Tech Crime Unit. He testified, he reviewed the warrant that was received. He remembers little from reviewing that warrant and was not asked to refresh his memory on it during his testimony. He testified “he based his review on the past experience that they must ask for things in the application for the warrant”. [11] It is fair to say, immediately upon Cst. Logan obtaining the laptop computer, he commenced search for child pornography. The first thing he did was run program called “OS Triage” on the computer. This software reviews the images on the computer through an evaluation tool called “hash values”. These hash values are understood to be an algorithm that determines whether child porn is accessible on the computer. The application of the OS Triage did not reveal any accessible child porn. Cst. Logan then went directly to the “Recycle Bin” on the laptop and discovered an image of child porn. [12] Cst. Logan testified he then delivered the laptop to the Tech Crimes Unit to have it forensically analyzed. As result of the immediacy of this matter, due to the approaching court appearance date, the Assistance Request was assigned to Sgt. Kuan to perform the forensic analysis. He received the assignment on July 4, 2013. Apparently, the court date was July 22, 2013. [13] Sgt. Kuan was qualified as an expert in the field of forensic computer and computer device examination, peer to peer file sharing software and computer device applications. His evidence from the voir dire was also applied to the trial proper. This was done on application by the Crown and consented to by counsel for the accused. [14] When Sgt. Kuan received the computer, he did not have copy of either the ITO or the warrant. He did not subsequently obtain those documents. While Cst. Howell testified at the voir dire that he directed the Tech Unit to look for evidence of child pornography, that evidence is not borne out by the testimony of Sgt. Kuan. It appears, according to him, Sgt. Kuan did not have any discussions with any other officers prior to completing his analysis of the computer. While protocol has since changed, in July 2013, he was not required to review the warrant or ITO as part of his analysis. Rather, he relied upon the Assistance Request completed by Cst. Logan. Indeed, Sgt. Kuan testified he did not even know Cst. Logan had operated the computer or run the OS Triage program prior to delivery to Sgt. Kuan. [15] Upon receipt of the computer, Sgt. Kuan began his full forensic analysis. His analysis consisted of three steps. First, he must complete forensic acquisition of the device. This involves him obtaining mirror image of the hard drive of the device. Second, he must authenticate the information obtained through the mirror image. Third, he must obtain all files, including deleted files. [16] Once Sgt. Kuan has obtained the files, he then utilizes forensic program called “C4All” into which images (“C4P”) and videos (“C4M”) are placed. At this stage, the information, if anything is found, is then returned to Cst. Logan to complete categorization of the images or movies. This categorization determines whether the images or videos are considered to be child pornography. [17] The computer storage consists of allocated and unallocated space. Allocated space is that part of the hard drive which is active space. Unallocated space is that part of the hard drive that is free space. This free space is simply overwritten again and again by the computer. [18] It is understood the particular operating system of this computer, Windows XP, keeps track of everything that is being done by the computer user. Although not explicitly stated, it is understood other operating systems do not have this relentless tracking feature. As result of this peculiarity in the Windows XP program, internet history is saved in the allocated space. Sgt. Kuan testified this occurs so the computer can speedily recover the internet page if the user goes on the internet to search it again. This cached information is not available to the user and is an automatic function of the computer. [19] As result of the completion of the C4All program, total of 403 images of either child nudity or child pornography were found. Of these, 373 were unique images. Presumably, the remaining 30 images were duplicates of certain of the unique images. Tab in Exhibit shows the location of the various images. The vast majority were found in “Temporary Internet Files”. Approximately 18 were found in specific locations on the computer: “My Documents/My Pictures”; “Lost Files”; “Recycler”. [20] Sgt. Kuan testified it was possible to utilize different forensic tools to restrict an analysis to specific area of the computer. This would allow him to search for both specific date ranges and specific data. He testified he could use one of these specific forensic tools to obtain only the internet history without extracting any images from the balance of the computer storage locations. [21] According to Cst. Howell’s testimony, the warrant was originally sought to obtain the internet search history of this accused with respect to specific website called Plenty of Fish and also websites generally dealing with massage pornography. Sgt. Kuan obtained the internet search history. Interestingly, here, while Sgt. Kuan testified he found on the internet search history the presence of both the Plenty of Fish website and massage porn type websites, this information never found its way into his report. [22] In fact, Sgt. Kuan was never asked by the investigating officers to provide the results of his analysis of the internet search history. Further, he fairly admitted that while the titles to certain internet search histories found on the computer were indicative of something called massage porn, he did not actually go to those internet sites to confirm that is what they were. [23] It is recalled the very reason for obtaining the warrant was to find corroborative evidence of the statements of the complainant to the effect when she was in the accused’s apartment, he was on his computer looking at Plenty of Fish and massage porn websites. It is further noted the complainant was not asked, either in her statement or in her testimony at trial, for specific dates or times which might coincide with the internet traffic of the accused at the indicated websites. [24] The images found by Sgt. Kuan, and placed in the C4All program, were forwarded to Cst. Logan for review and determination of whether they were child pornography. As indicated, Cst. Logan has expertise in the determination of whether images can be considered to be child pornography. He concluded the various images referred to previously fell into that category. Counsel for the accused acknowledged this classification work was accurate. The court was invited to conclude this was the case without actually reviewing any of the images. While it is certainly possible to form such conclusion without an actual review of the material, that is not course which endorse. As result, Cst. Logan had prepared sample of 12 such images for review by the court. He presented those images in court. There is no question but that those images constitute child pornography. As result, am able to conclude all of the images obtained constitute child pornography. [25] The accused seeks to exclude all of the images of child pornography located on his computer. In the alternative, he seeks to exclude those images not automatically cached by web browser during an internet search. [26] The Charter provides as follows: 24(2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [27] The test for exclusion of evidence is set forth in Grant, 2009 SCC 32 (CanLII), [2009] SCR 353 [Grant] as follows: (a) Seriousness of the Charter-Infringing State Conduct 72 The first line of inquiry relevant to the s. 24(2) analysis requires court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. 74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. nan (b)Impact on the Charter-Protected Interests of the Accused 76 This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. nan 78 Similarly, an unreasonable search contrary to s. of the Charter may impact on the protected [page397] interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. (c) Society's Interest in an Adjudication on the Merits 79 Society generally expects that criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that judge on s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. 80 The concern for truth-seeking is only one of the considerations under s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII (SCC), [1971] S.C.R. 272 is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates broad inquiry into all the circumstances, not just the reliability of the evidence. 83 The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. nan 85 To review, the three lines of inquiry identified above the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to [page400] particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [28] There are number of authorities which have directly considered the issue of excluding child pornography evidence as result of Charter violation. While the application of s. 24(2) is difficult in all proceedings, it is particularly weighty in matters involving child pornography. That is so, obviously, because of the very evidence itself. The images are haunting and sickening and cause instant revulsion. [29] In reviewing this matter, it is important to start with what this matter was not, according to the evidence of Cst. Howell, the lead investigating officer. This matter was not, at the start, an investigation into child pornography. It was an investigation into complaint of sexual assault of minor and sexual exploitation of that minor. The warrant was obtained to determine if there was corroborating evidence to be found on the accused’s computer which would support the statements being made by the complainant. [30] At the voir dire, Cst. Howell testified the complainant told him, following the conclusion of her video and audio taped statement, that the accused had taken pictures of her in the shower. It was this statement, according to Cst. Howell, that caused him to ask of Sgt. Kuan that he also look for pictures of the complainant when completing his forensic review of the computer. While this evidence of Cst. Howell was not permitted as amplification evidence, am permitted to consider it on the s. 24(2) analysis: Wonitowy, 2010 SKQB 346 (CanLII), 358 Sask 303. [31] There are several problems with this evidence. Firstly, the complainant did not testify as to the accused taking any pictures of her. She was not asked about this. This absence of evidence is significant in assessing what is to be made of Cst. Howell’s assertion. [32] Secondly, neither Sgt. Kuan, nor Cst. Logan, knew what the complainant looked like, nor did they receive description or picture of her. This is so, apparently, despite the assertion Sgt. Kuan was specifically advised by Cst. Howell of the possible presence of picture of the complainant on the accused’s computer files. [33] Thirdly, there is absolutely no evidence to suggest either Sgt. Kuan or Cst. Logan looked for, or even considered looking for, picture or pictures of someone who might be the complainant. They simply did not look for specific picture to attempt to either provide independent evidence or to provide evidence to further corroborate the complainant’s allegations. [34] All of this leads, inexorably, to the conclusion this investigation was to obtain child pornography. In saying that, do not intend to suggest any ill motives to the investigating officers. Rather, it appears, from the weight of all of the evidence that what they intended to do, in the case of both Sgt. Kuan and Cst. Logan, was to search for and obtain, if available, evidence of the accused’s computer having on it child pornography. [35] This is apparent particularly from the testimony of Cst. Logan. Upon receipt of the computer, he immediately ran the OS Triage software looking for “hash values” which would be evidence of the presence of child pornography. There is no indication in the evidence that picture or pictures of the complainant would contain those “hash values”. Following that search (which did not turn up any indication of the presence of such material), he then immediately went to the Recycle Bin to look for the presence of child pornography images. [36] Then, the very reason for obtaining the warrant is, apparently, abandoned right from the start of the search. There is no evidence on this trial of what the accused’s computer’s search history shows with respect to the two areas of prime importance in the ITO. Evidently, no one asked Sgt. Kuan for the information which he had acquired in this regard. [37] When these issues were discussed during argument, counsel for the Crown indicated the investigation took decidedly different turn with the obtaining of statement from the witness, That witness testified as to being with the complainant in the accused’s apartment. She further testified to corroborating events that took place in the apartment. The submission was therefore that the presence of this potential corroboration evidence obviated the need for the search history information. [38] This explanation may very well apply once the trial itself was underway, but, it cannot apply to the work of either Sgt. Kuan or Cst. Logan. The evidence of was not received until she gave statement on January 4, 2014. The computer was seized in June 2013 and the forensic analysis was completed in early July, to accommodate the pending court date of July 27, 2013. Accordingly, the necessity of the search history could not have been obviated at the time the forensic analysis of the computer was being completed. [39] As have indicated, there is no suggestion here the police had any ill-motives. Quite the contrary, they appeared all to be persons dedicated to their positions with the police force. They each gave their evidence genuinely and without hesitation on the steps they had each taken with the investigation. The difficulty lies not with their motives, rather it lies with their failure to abide by that most basic of requirements: the warrant. No one thought to get one that allowed the extent of intrusion into the accused’s privacy. No one questioned what was obtained to ensure they were each acting on solid ground with respect to their search entitlements. [40] This is not something that can be considered technical breach. Cst. Howell asserts he had information from the complainant that nude pictures of her were taken. This information was not provided to the justice in the form of the ITO. The complainant did not provide this evidence when giving her testimony. The information is apparently not to be found in the notes of Cst. Howell, nor in the video or audio statement given by the complainant. It was not remembered until, apparently, the preliminary inquiry in this matter. [41] In light of this, it is possible the justice would have refused to grant more intrusive search. It is possible the justice would not have been satisfied more intrusive search was warranted on the basis of the uncertain nature of the evidence in support of such more intrusive search. [42] In Morelli, 2010 SCC (CanLII), [2010] SCR 253 [Morelli] Fish J. stated: 105 As mentioned at the outset, it is difficult to imagine more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. 106 It is therefore difficult to conceive s. breach with greater impact on the Charter-protected privacy interests of the accused than occurred in this case. 107 turn, finally, to the third factor to be weighed under s. 24(2) of the Charter society's interest in adjudication of the case on its merits. Here, exclusion of the evidence obtained in the search would leave the prosecution with essentially no case against the accused. It would thus seriously undermine the truth-seeking function of the trial, [page291] factor that weighs against exclusion (Grant, at paras. 79-83). [43] The personal nature of all of the information on the computer was emphasized by the Supreme Court of Canada in Cole, 2012 SCC 53 (CanLII), [2012] SCR 34 [Cole]: 47 Computers that are used for personal purposes, regardless of where they are found or to whom they belong, "contain the details of our financial, [page49] medical, and personal situations" (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices "reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet" (ibid.). [44] With respect specifically to cases involving child pornography, Fish J. in Morelli stated: nan To be sure, offences involving child pornography are particularly insidious. They breed demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion. nan It is for this very reason that the police, in enforcing the law, must avoid any temptation to resort to stereotypical, inflammatory, or misleading allegations. And where they yield to that temptation, courts must be particularly vigilant to issue process, or subsequently validate the issuance of process, only where reasonable and probable grounds for search or an arrest are in fact made out. While the law must be relentlessly enforced, legal requirements must be respected, and constitutional safeguards preserved. [45] turn now to the consideration to be applied when considering the application of s. 24(2). While it has been stated in many cases, quote from Justice Fish’s decision in Cole: 80 With the Charter breach established, the inquiry shifts to s. 24(2). 81 Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. This determination requires balancing assessment involving three broad inquiries: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits (R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, at para. 71). 82 The standard of review is deferential: "Where trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review" (R. v. Côté, 2011 SCC 46 (CanLII), [2011] S.C.R. 215, at para. 44). But where the relevant factors have been overlooked or disregarded, fresh Grant analysis is both necessary and appropriate. a. The seriousness of Charter-infringing state conduct [46] As with consideration of the other two inquiries, the evidence here must be divided into two broad categories. The evidence found on the computer, other than through the temporary internet sites, is one broad category of evidence. The evidence found on the computer through the temporary internet sites is second category of evidence. While these are broad categories, they define the nature of the evidence in dispute. [47] The court in Morelli, and confirmed in Cole, identified the intrusiveness of search into one’s personal computer. repeat those comments here from Morelli: nan It is difficult to imagine search more intrusive, extensive, or invasive of one's privacy [page263] than the search and seizure of personal computer. nan First, police officers enter your home, take possession of your computer, and carry it off for examination in place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet generally by design, but sometimes by accident. [48] The Crown in the course of submissions, here, suggested the decision of Fish J. in this first part was impacted significantly by the police officer’s lack of candour and lack of diligence and integrity. There is no doubt that is the case and Fish J. was quite pointed in his comments concerning the police officer’s behaviour, there. [49] Here, the police did nothing to attempt to obtain warrant allowing them to search for child pornography. Rather, they took it upon themselves to search without judicial authority or oversight. That this was done without malice or misconduct, while noticed, does not ultimately affect the nature of the impact on the accused’s Charter right. [50] Really what is being sought here is general acceptance that the failure to obtain search warrant authorizing such search is of little to no consequence. The police did not engage in misconduct, so the argument goes, and accordingly, their failure to obtain warrant can be easily excused. [51] do not see things that way. The investigating officers just did not, apparently, think it necessary to obtain warrant. This is wrong thinking and shows little concern for the Charter rights of those being investigated. In Morelli, there was trial finding of “no deliberate misconduct” by the officer. Despite this, Fish J. stated: 103 We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers. [52] The police had no authority to search the computer generally. They were only authorized to look at the internet history. The search of the non-internet history is a serious infringement of the accused’s Charter right. The search of the temporary internet files is less of serious infringement, in these circumstances. b. Impact on the Charter-protected interests of the accused [53] On the second factor in Grant, repeat the words of Fish J. in Morelli: 105 As mentioned at the outset, it is difficult to imagine more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. 106 It is therefore difficult to conceive s. breach with greater impact on the Charter-protected privacy interests of the accused than occurred in this case. [54] That is precisely the situation in this case. echo Fish J.’s comments. [55] Again, the general search of the computer significantly impacts the accused’s Charter interests. This is precisely what Fish J. was referring to. The search of the temporary internet files is less so as the police were authorized to look at the internet history. c. Society’s interest in an adjudication on the merits [56] This then leads me to the third factor. Exclusion of all of the evidence of child pornography found here would leave the Crown with no case on this count of the Indictment. This is real evidence, not conscripted. [57] As indicated, there is difference between that found on the computer in the pictures or recycle bin and those found in the temporary internet files. There may be no justification on the face of the ITO or the warrant for obtaining materials from the computer other than temporary internet files. This was search conducted as straight out child pornography search, quite unconnected with the charges then being investigated by the police. [58] The images found in the temporary internet files are another matter. The warrant authorized obtaining the search history from this computer. There are software tools available that would do solely that. Those tools were not used here. [59] The police had no authority to look generally at the computer. They could have obtained further warrant. It did not occur that this should take place. They did have authority to look at the internet history. [60] While the nature of the offence would suggest society demands complete adjudication on the merits, the nature of the search here suggests otherwise. It is not open season on whatever is found by the authorities. There are limits as to what will be acceptable. After the fact justification is not something the court will support in these circumstances. [61] The police were looking for internet history. While not explained well in the evidence, the temporary internet files are created as a result of visits on the internet. This is the evidence of internet history. Because of its connection, I determine society would have an interest in seeing this evidence determined on its merits. CONCLUSION [62] As a result of all of the foregoing, I determine the materials found through the temporary internet files are not excluded from evidence pursuant to s. 24(2) of the Charter. However, I determine the balance of the images found on the computer are excluded from the evidence at trial pursuant tos. 24(2). Accordingly, I determine as follows:1. Exhibit P6, Tab 1 is admissible;2. Exhibit P6, Tab 2 – the items not found in Temporary Internet files are to be excluded from the evidence at this trial. That is the items in the first row and the last three rows;3. Exhibit P6, Tab 3 is admissible;4. Exhibit P6, Tab 4 relating to Temporary Internet files is admissible; and5. Exhibit P8 with the exception of the indicated excluded pages. M.T. MEGAW nan
HELD: The application was allowed in part and the balance of images found on the computer were excluded from the evidence at trial pursuant to s. 24(2) of the Charter. The court found that the evidence found through temporary Internet sites was admissible. The reason for obtaining the warrant was apparently abandoned by the police at the beginning of the search of the computer. The police had no authority to search the computer generally. They were only authorized to look at the Internet history. The search of the non-Internet history was a serious infringement of the accused’s s. 8 Charter right. The temporary files created as a result of the visits on the Internet was evidence of Internet history, and because of this connection, this evidence was not excluded.