IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 078 Date: April 10, 2014 Information: 31461438 Location: Regina Between: Her Majesty the Queen Appearing: Ms. Carmen Choi For the Crown Ms. Christina Skibinsky For the Accused Note: Pursuant to s. 486(4) of the Criminal Code, the Court made an order directing that the identity of the complainant or witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. RULING ON VOIR DIRE B. D. HENNING, [1] Ms. A.M.B. is charged that between the 10th day of December 2011 and the 11th day of December 2011, at or near Regina, did for sexual purpose invite, counsel or incite V.F., person under the age of sixteen years to touch, directly or indirectly, with part of the body or an object, the body of A.M.B., contrary to section 152 of the Criminal Code of Canada. [Charge amended May 21, 2013 to correct errors.] ban on publication of evidence that may disclose the identity of the person under sixteen years of age has been made in this proceeding. [2] The case involved alleged improper acts by the Accused with respect to her eight-year-old son, specifically massaging her in the nude on one or two occasions, while an adult male took photographs of the occurrence. During these acts the Accused covered her breasts and vagina, in whole or part, and that her son did not touch her on those areas, but did so elsewhere, including on her buttocks. It was thought from information received by police that these photographs would be found on computer, or other electronic devices, capable of storing pictures in the possession of the Accused. The ITO did not allege the commission of the offence of sexual assault, or creation of child pornography, but only of invitation to sexual touching. [3] The matter was set for trial on April 24th and 25th, and on April 10, 2013 Notice of Motion was filed, which was later amended, asking that voir dire be held to determine the validity of search warrant. The Defence sought ruling that the information to obtain the search warrant (hereafter referred to as ‘the ITO’) was sufficiently defective that the warrant was invalid, thereby infringing section of the Canadian Charter of Rights and Freedoms, and that evidence obtained should be excluded. Further, it was alleged that upon arrest or detention the Accused person’s rights under section 10(b) were also infringed. Notice was also given that the Defence wished to cross-examine the affiant who swore the ITO in detail on matters set out in the Notice. The matter was discussed with respect to procedure to be followed on April 30, 2013, and was adjourned to May 21, 2013 for conduct of voir dire. [4] On May 21, 2013 the trial commenced with voir dire in which the Crown called four police witnesses. Three exhibits were also introduced, being Exhibit P-1, an admitted Statement of Facts, Exhibit P-2a, the Information To Obtain Search Warrant, or ITO, sworn by Detective Sergeant Cory Lindskog of the Regina City Police, and Exhibit P-2b, the Warrant to Search, issued December 19, 2011. Evidence on the voir dire was completed on May 22, 2013, with written submissions to follow on the issues on the voir dire. At this stage of the case, the Defence arguments to have the Court determine that the search was done without authority concerned insufficiency of the ITO on which the decision to issue the search warrant was made, and alleged unreasonableness of the issuing justice’s decision. The Defence also alleged that section 10(b) of the Canadian Charter of Rights and Freedoms was infringed. [5] Exhibit P-1 sets out the facts in this matter in broad form, and this exhibit is attached as Appendix to this ruling. The facts were expanded upon by viva voce evidence, and details are of significance in considering whether any breach of the Charter occurred. These facts may also be relevant if breach is established in fact, and the question whether any evidence obtained should be excluded under the test of R. v. Grant, 2009 SCC 32 (CanLII). [6] The activity described in paragraph of this ruling was outlined in Exhibit P-2a, the ITO, from information taken from report by child protection worker who had interviewed the child. The ITO does not disclose evidence of offences of engaging in sexual acts, or creation of child pornography. In the ITO, there is statement that appears in Part as paragraph 3, which is again in the Warrant to Search, that authorizes search for images of explicit sexual activity with person under the age of eighteen, with emphasis on sexual organs and the anal region, which is not related to the offence alleged to have been committed, and is not supported in the ITO. The ITO and warrant authorized search for information and data in electronic form, and search for devices capable of storing such material, as well as conventional picture form. [7] The first witness was the affiant in the ITO, Detective Sergeant Cory Lindskog who had drafted the affidavit, and was the senior person in the investigation. He was member of the Regina Police Service and his work focused on investigation of alleged sexual abuse of children. He described the execution of the warrant as beginning with briefing at the police service which included social worker, staff sergeant, an RCMP representative, two constables and himself. All of this group except the staff sergeant then went to the location of the accused person’s house. She was at home in bedroom, and became very upset when advised that they had search warrant. She was detained and “given rights”. She was advised that she was suspect in an offence of invitation to sexual touching. She was given the right to counsel, which she stated she wished to exercise. She also wanted to change her clothes or become more appropriately dressed. She was agitated and was arrested for obstruction when she objected to police looking at computer. She was taken into custody and removed from the house to police vehicle. [8] The police focused immediately on laptop computer in the kitchen. The warrant clearly authorized the search and seizure of devices, which included cameras, “capable” of storing images or data, and computers or any other electronic devices, elaborately enumerated, as well as conventional photographs depicting sexual activity described as follows: “which shows person who was or is depicted as being under the age of eighteen years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for sexual purpose, of sexual organ or the anal region of any person”. The difference between the offence alleged to have been committed and the nature of items sought has been noted. No breach of the Charter occurs, however, when another or different offence is discovered in the course of an otherwise valid search and seizure pursuant to warrant. The Ontario Court of Appeal decision in R. v. Jones, 2011 ONCA 632 (CanLII), is authority for this, but the police, in this case, were searching for items that pertained to an offence not alleged, although there is always potential for overlapping of evidence that would support different offences. However, the ITO did not disclose grounds to authorize search for items as described, and that represents an inconsistency within the documents. [9] In Jones, supra, the police searched house pursuant to warrant concerning fraud and inadvertently found child pornography image. As result, the police continued to search the computer as they were advised by the Crown that they did not need further warrant to do so. The first image was legally found due to the plain view doctrine, but the latter search was violation of section 8.[1]. The plain view doctrine only permits seizures of items in plain view, and does not permit further searches not authorized in the warrant. [10] Sgt. Lindskog indicated that the computer found in the present case was immediately searched for pictures by the RCMP member of the search party, on the premises notwithstanding that the warrant to search had specifically stated that police were authorized to “search for the said things and to bring them before me or some other justice” (emphasis added). [11] Sgt. Lindskog continued his testimony with information concerning the Accused’s transport to the Regina Police Service, her contact with lawyer, and her behaviour in police custody. He gave some evidence that pertained to the exercise of rights to counsel by the Accused, but it is apparent that he was not the person who facilitated that right. He indicated that would have been done by the transporting officers. In his evidence, he stated that the Accused’s rights were complied with “100%”, but he was not present when that was done. His evidence raises issues as to whether the right to counsel of choice was facilitated, but his evidence is in part hearsay, and recitation of practices that may not have been applied. [12] Constable Corrie Neufeld next gave evidence to largely similar effect and confirmed that cellular telephone and camera had been found and seized. She indicated that she had never reviewed the warrant to determine what items could be seized. She had conducted search of the Accused’s purse and found the cell phone. Notwithstanding that the ITO and warrant refer specifically to computers and cameras, and speaks generically in some detail of peripheral computer devices, and other data storage devices, it did not refer to cellular telephones. In R. v. Vu, 2013 SCC 60 (CanLII), it was recognized that cellular phones may have capacity to store data and pictures with resulting considerations equivalent to computer devices. (See Justice Cromwell, paragraph 38.) At the time of this search, however, that equivalency had not yet been established, and cellular phones were omitted from the ambit of this search. It was also not clear in law at the time of this search, that search of computer’s contents must be specifically authorized, or be the subject of further authorization. Although that was not determined as requirement, the description of the items sought was very much requirement. Although various devices were specifically sought that might store images or data, cellular telephones were not referred to. [13] conclusion may, therefore, in my opinion, be made that given the detail of items to be searched for, the omission of cellular telephones was intended, and the search of such items was not included under the warrant. No information was provided that might bring this cellular phone within the description of the other items sought, some of which is generic concerning electronic storage devices. The Court cannot, in my opinion, take judicial notice of the capabilities of cellular phones generally, and guess whether this particular one would be within the broad description of device capable of storing images or other relevant data. It was never suggested that relevant material was found on this cellular telephone. The seizure of the cellular phone does not appear covered by the warrant. [14] Constable Paul Fisher of the RCMP testified next. He knew they were to look for pictures of nude female with child. He went immediately to the kitchen of the house and found two computers and camera, but could not say who eventually seized them. He also had computer and used it in searching the other computer and the camera memory. He indicated he is software specialist. He described the camera. He stated that he immediately removed the memory card and searched it with his computer. There were no relevant pictures in it, but he seized the camera and card. He stated, however, that he did find almost immediately fifteen pictures in Toshiba Satellite laptop computer that he considered relevant. He did not search the second computer in the house. [15] The immediate viewing of pictures on the computer was explained and minimized as form of “previewing” for relevancy, but such distinction is without difference in this situation. The search of the computer was conducted immediately, and before returning any of the items to the justice, and without further authorization as is now required in R. v. Vu, supra. [16] The last witness was Corporal Davey who was an internet child exploitation investigator with the Regina City Police, and was the next-most-senior investigator present, after Sgt. Lindskog. Corporal Davey was member of the Internet Child Exploitation (ICE) and her investigative focus was somewhat different from that of Sgt. Lindskog. Her police field of expertise was in the area of child luring on the internet, and in child pornography. She considered the Accused person “non-cooperative”. She described the photographs that were of interest to the investigators, which were not exhibited. She stated that they showed two persons, one of whom was the Accused with her hands over her breasts, prone on bed, and with cell phone over her vagina. child in pajama bottoms was touching her, and had (a bottle of) lotion in his hands. The pictures showed touching on legs, thighs, feet and stomach, but not on the breasts or vagina. She expressed the opinion that the photographs were of sexual nature, but this opinion is not admissible. Cpl. Davey indicated that she had given opinion evidence in other proceedings in the field of child pornography, but she was not presented as an expert witness in this proceeding. It is apparent from her evidence that her interest was in seeking evidence of offences that went beyond invitation to sexual touching. However, she was also at the scene as part of search pursuant to the warrant issued. It is conceded at paragraphs 16 and 74 of the Crown Brief, dated June 27, 2013, that her purpose was to investigate child pornography. The witness indicated that she made an extensive search of the rest of the house. She was clearly looking for evidence relating to offences not listed in the ITO and warrant, but it cannot be said that she was not also searching for evidence relating to the offence that was listed. The Crown argues, however, that this breach is not serious or significant. This is so, in my opinion, because her actions would not have been different in investigating either or any of these offences, in this particular circumstance. [17] decision on the voir dire was delayed, and further argument occurred following the release of the case of R. v. Vu, supra on November 7, 2013, which is relevant to the issues with respect to search of the contents of computer. It is the Defence position that the warrant, by its specific wording, authorized the seizure, but not the immediate search, of the computer and data storage equipment, quite apart from the rules established in R. v. Vu, supra. [18] The search had been initially challenged by the Defence on the grounds of insufficiency and unreasonableness of the decision by the justice to issue the warrant. The Defence argued that the information contained in the affidavit did not meet the test of establishing that an offence had been committed, and further that misleading information was included. During argument, the Court also identified number of concerns with respect to the ITO which had not been raised by the Defence. [19] That misleading information alleged by the Defence consisted of the following. “caution for violence” with respect to the Accused that came out of CPIC search, the source of which was disclosed. This detail is not, in my opinion, significant as it comes from CPIC search that was fully described, and such background search of suspect is not an unreasonable step in an investigation. The second was the suggestion to search for explicitly sexual pictures, including ones of the anal region. This information is more significant, in my opinion, as it does not have basis in the information obtained from the child who was the only source of information of the alleged offence. As such it has the potential to suggest and raise suspicion that more serious offences may have been committed. It also appears to be the area of investigative concern for Cpl. Davey. [20] Other issues with respect to the affidavit to obtain the search warrant raised by the Court included the fact that the jurat of the affidavit or ITO lacked any statement to the effect that the person before whom the affidavit was sworn had the capacity to administer an oath. However, in comparing that signature with the signature on the Warrant to Search, they appear similar and the documents are related and dated similarly, so the Court may infer that the justice of the peace who issued the warrant was the person before whom the affidavit was sworn. By consideration of the two documents the missing information may be discovered and would rule that the ITO is not nullity. If, however, the two signatures could not be matched, different conclusion might be reached. [21] The information in the ITO related by Sgt. Lindskog came from number of different sources including the original complaint by the father of the child, who was separated from the mother and engaged in matrimonial dispute that included custody issues with her, who had learned of an incident from the child himself. The activity broadly described above was related by the father with the information that about ten photographs had been taken. Clearly this is information that is not in the personal knowledge of the affiant, but he does disclose the source. This information as well as other information obtained during an interview of the child by child protection worker, Ms. Theresa Gregoire, was included in report which she authored that was read by Sgt. Lindskog and referred to in the affidavit. [22] At no point does Sgt. Lindskog differentiate between information personally obtained by him, and information from third party sources, or state that he considers those sources to be credible and worthy of belief. He does disclose the sources, and it is apparent on reading the affidavit which statements are made on information and belief. The reader may infer that the affiant considered the information reliable. Essentially, the information comes from the child subject of the activity, related to police through the father and related to social worker. [23] Sgt. Lindskog also sets out some information he obtained from an internet search that pertained to A.M.B. as model of lingerie and other brief clothing. He also queried the Canadian Police Information Centre (CPIC) and the Regina Police Service data base, the Saskatchewan Government Insurance database, and City of Regina Customer Services and SaskEnergy records. would infer that the police data bases were checked for police file information on the Accuse, and energy and city records were checked for the purpose of establishing the Accused’s residence at the premises that were searched. [24] The value and reliability of the internet information about modelling in the ITO is not explained or commented upon. Information that is not manifestly relevant, or explained as relevant, and is included for no clear purpose, may be prejudicial to proper consideration by the justice of the issues. In this case, the Accused is disclosed to be model with various pictures on website wearing lingerie, or partially nude, in bathtub, and wearing tool belt and helmet. The purpose of including this information is not made clear, but it may have been to included to suggest propensity by A.M.B. to commit the offence alleged. However, such an inference is of dubious weight and potentially prejudicial. [25] The lack of precision in identifying sources of information as being personal, on information and belief, or stating belief in reliability of sources of information, is not necessarily fatal to the affidavit, if there is sufficient information that the person considering the affidavit may make those inferences from the material as presented. Many cases have dealt with this issue in the criminal law context, and an example of applying “a totality of circumstances test” that permits reader to determine sources and reliability where there is sufficient information to do so, is found in this case: R. v. Borowski (1990), 1990 CanLII 10973 (MB CA), 57 CCC (3d) 87 (Man. C.A.), Justice Lynn, for the Court. Thus, failure to differentiate information and belief from personal knowledge is poor drafting, but in this instance it is not fatal to the validity of the ITO because there is sufficient context to allow the justice to assess the information judicially, in my opinion. However, it is potential source of confusion to justice that is possibly cumulative with other issues as to completeness of information disclosed, and inclusion of information of questionable relevance. [26] Points of information not disclosed in the ITO that appear in the child protection worker’s report that came out during Sgt. Lindskog’s examination included the following, that have potential to detract from the likelihood of an offence having been committed are: a. the Accused told the child to massage her naked body because it was sore; b. the Accused used her cellular phone to cover her vagina and her hands to cover her nipples during the massage, but Joe, the tenant taking pictures, took pictures of her uncovered vagina, so that area was likely uncovered at some point(s); c. the child massaged her back, stomach, legs, feet, and buttocks with his hands; and the child knew or was directed specifically in massaging the Accused, which did not include the breasts or vagina; d. the child did not feel sexually abused (although his knowledge or opinion does not assist this issue great deal, but that was part of his narrative); e. there was history of unsubstantiated complaints by the father against the Accused, who had initiated the police investigation; f. Joe was not interviewed by police; g. the child said the whole incident was relatively brief, taking 15 to 20 minutes; and h. the child indicated where the pictures would be found. [27] From the foregoing review of evidence and documents, the following issues relating to the legality of the search arise: a. Was the Accused adequately accorded her section 10(b) Charter rights upon arrest? b. Was the Warrant to Search valid in view of the issues raised with respect to the completeness and validity of the ITO? c. Was the search of the computer conducted immediately on the premises legal, either because of the rules established in R. v. Vu, supra, or because of the wording of the warrant itself, that directed that items seized were to be returned to the issuing or another justice? d. If one or more breaches of the Charter are established, should evidence obtained be excluded? [28] Question A, regarding rights to counsel is raised by the examination of Sgt. Lindskog, and is not elaborated upon by the evidence of any other officer, or the Accused. This part of the trial was voir dire, conducted at the application of the Defence, to determine the validity of search conducted pursuant to warrant. The question of possible breach of right to counsel was also included, but was not, in my opinion, addressed fully in manner capable of being determined on its merits in this hearing. The Crown did not appear to be presenting evidence that might be expected to cover all aspects of the arrest and giving of the rights to counsel under section 10(b) of the Charter following the arrest. The Accused was considered, perhaps, but not necessarily correctly, to be committing the offence of obstruction at the scene of the search, and was consequently arrested. Her arrest and handling following arrest was not the focus of the voir dire, and was only tangentially raised. [29] The evidence such as there is on this point comes from Sgt. Lindskog, and is set out at pages 30 and following of the Defence Brief entitled “Reply of Accused”, dated July 19, 2013. His evidence refers to “they placed her in phone room with phone that calls out and we dial Legal Aid and put it through to them”. His evidence does confirm the Defence proposition that persons are given access to Legal Aid without options to consult other legal counsel, but he states this in manner to suggest that persons other than himself did this, and it was not his concern. It becomes clear that his evidence in this respect is hearsay when he states “she had spoke to Legal Aid before was even there” and that this would have been facilitated by members of the police service who transported her. He spoke to her after the search was completed at the police service. do not consider that the Court has any admissible evidence before it to the effect that section 10(b) rights were given or denied, other than at some time later when Sgt. Lindskog spoke with the Accused, she still wished to consult counsel, which he considered to be closed issue. This is not sufficient to determine the issue on its merits. [30] If the Defence wishes to raise further the issue of compliance with Charter section 10(b) rights, they may do so without prejudice when the trial continues. It is of significance in any event, that no prescriptive evidence could have been obtained by reason of the alleged denial of rights, which is of significance in considering an appropriate remedy if breach is established. [31] Question B, in considering the effect of the inclusion of the statements regarding modelling, and the omission of information listed above that potentially minimized the likelihood of the commission of an offence, the Court must consider R. v. Morelli, 2010 SCC (CanLII). In R. v. Morelli, 2010 SCC 8, the Court stated at paragraph 58 that the informant must present all material facts whether favourable or not. Morelli, supra, states that: When seeking an ex parte authorization such as search warrant, police officer indeed, any informant must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not… This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or conclusion that would not be reached if the omitted facts were disclosed [emphasis in original]. [32] The question for the Court to determine is whether the information was misleading, and not whether it was meant to be misleading. (Morelli, supra, paragraph 59.) The Supreme Court of Canada in that case summed up the relevant legal question as follows: “whether the ITO, stripped of its erroneous and tendentious assertions, and amplified as indicated, provides sufficient credible and reliable evidence to have permitted the justice of the peace to find reasonable and probable grounds to believe both that the Accused was committing the alleged crime and that evidence of that crime would be found in the specified location”. After so doing, the Court must consider whether the facts set out in the ITO, as amplified, could have satisfied the issuing justice that the requirements for issuance of the warrant were met. [33] It therefore must be asked whether the justice could have issued the warrant with the above information. Given the description of the massage given by the child, and the child’s indication that pictures existed, justice could have ignored the fact that the child did not believe himself to have been sexually abused. It is doubtful that child would understand the charge of invitation to sexual touching. However, the omitted fact concerning the dispute of the parents and previous allegations against the Accused are relevant, particularly given that none of these previous allegations resulted in criminal conviction. Therefore, these omissions are potentially relevant to the possibility of manipulation of the complaint. This is compounded by the fact that the ITO relied only on the child’s evidence, and the other adult present at the event was not disclosed, or interviewed and no information was available from him. There was also the misleading statement in the ITO concerning the specific types of pictures searched for that suggested an investigation of more serious activity not supported by the information provided. There was modeling information included that added no information regarding the offence, but could suggest unwarranted sexual inferences. The affidavit also failed to differentiate information and belief, which is not sufficient to nullify the affidavit, but is potentially confusing for justice weighing the information. The cumulative effect of these errors, in my opinion, permit a conclusion that the ITO could not, in the form presented, support the issue of the warrant by a justice acting judicially. The above conclusion therefore renders the Warrant to Search a nullity, and the search unlawful. [34] Question C, does the search of the computer immediately without further authorization and/or without providing their return to the justice as set out in the final lines of the warrant render the search illegal? There are two analyses that must be made, first on the wording of the warrant, and second, in light of R. v. Vu, supra. [35] Under section 487(1)(d) of the Criminal Code, justice who issues warrant must either require that the individual executing the search warrant “bring the seized thing before, or make report in respect thereof to, the justice or some other justice”. As the justice in this case did not require report, and instead required the seized item to be brought before him, that would logically preclude the search without further consideration and authorization. Many items subject of warrant could be examined superficially before being turned over to justice without infringing such direction, but as the Supreme Court in R. v. Vu, supra concluded (and other cases before had suggested), computers are complex with much data that might be relevant, or not, and be highly personal, with the result that special handling is reasonable and necessary. In any event, the wording chosen is clear, and the items were to be brought to the justice. There would be little purpose to such direction without some special issue as to the handling of the items. [36] In R. v. Colet, 1981 CanLII 11 (SCC), [1981] S.C.R. 2, [1981] S.C.J. No. 2, the Supreme Court applied strict construction test to protect individual rights in situation of ambiguity in search. This was, of course, prior to the Canadian Charter of Rights and Freedoms, but the case recognized need to protect individual rights, which is fully consistent with development of the law since the Charter. This case reinforces the proposition that the directions in the warrant in this case, given privacy issues inherent to computers, required special care. The terms of the warrant were not complied with, and the items found as result were unlawfully obtained. [37] The Supreme Court in R. v. Vu, supra, at paragraph 20 has recognized that warrant must expressly grant the authority to search computer. At paragraph 47, this is expanded upon and explained with respect to privacy concerns raised by computer searches. conclude that the rule in R. v. Vu, supra, also renders unlawful the search that occurred here. [38] In summary, have concluded that the search was unlawful due to defects in the ITO, and further, that if that conclusion should be wrong in law, and it was lawful, then the immediate search of the computer without remitting it (and other items seized) to the justice is unlawful both on the express wording of the warrant, as well for failure to obtain specific authorization to search the computer, in compliance with the rule established in R. v. Vu, supra. That being so, must consider the appropriate remedy to be applied for breach of section rights under the Canadian Charter of Rights and Freedoms. The Defence asks for exclusion of the evidence obtained by the unlawful search in this case. It is conscriptive evidence, as was the case in R. v. Vu, supra, but the evidence obtained in that unlawful computer search was not excluded. [39] The case of R. v. Grant, supra, arose in the context of detention, and subsequent denial of section and 10(b) Charter rights. It established test for exclusion of evidence as remedy under section 24(2) of the Charter. Prior cases of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 and R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 had considered this issue before. Grant establishes “revised approach” for exclusion of evidence. At paragraph 85, McLaughlin C.J.C. wrote in brief summary: 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. [40] In the case of R. v. Vu, supra, the evidence was not excluded because the Supreme Court did not consider the breach of the section Charter rights to be serious. This was so because police had authority to search the residence, the computer was found, and the law had been unclear with respect to computer searches up to that time. There was no bad faith or conduct, even though the search was considered intrusive. The evidence was important to the Crown case, and reliable, and the public interest with respect to the underlying offence, trafficking in drugs was high. Under Grant, supra the evidence was admitted. [41] In applying the Grant test, the Court must undertake detailed consideration of the seriousness of the conduct relating to the breach and the breach itself. “Good faith” breaches are recognized, but negligence and wilful blindness may preclude finding of good faith. In the present case, it has been concluded that section rights have been breached by failure to comply with the wording of the warrant, which was not the case in R. v. Vu, supra the unlawfulness was not determined only by the special considerations that relate to computers, and is therefore, more egregious breach. [42] In addition, the ITO was poorly drafted in the technical sense, and contained dubious material, with important information omitted. Issues with respect to execution of the warrant have already been referred. Informational errors included: a. potentially prejudicial information about the alleged perpetrator relating to sexually suggestive modelling; b. it described pictures to be sought of acts or conduct significantly more serious than there was any basis to believe had occurred, or regarding which evidence existed; c. it omitted information that might not be favourable to the police conclusion that offence(s) had been committed that came from the child interviewed; d. police failed to fully investigate the matter and provide information from an interview of material adult witness present at the alleged offence; d. it failed to disclose the conflicted relationship between the parent and the alleged perpetrator that could potentially influence information from the child subject of the investigation and the sole source of information in the ITO; e. in spite of briefing for peace officers involved in the search, they did not all know the terms of the order, and the search of the computer and camera memory card was conducted immediately, rather than taking items to the justice as directed in the warrant; and f. generally, poor and confusing drafting and organization of the ITO. The foregoing does not appear to have been done with deliberate bad faith, but shows poor investigation and negligence in not presenting fully information to the justice, and a low standard in the execution of the warrant. In this case, the numerous inaccuracies and failures on the part of investigators negative good faith due to serious and continuing negligence. [43] The Court must also look at the impact of the breach of the Charter protected rights of the Accused. At paragraph 77 in Grant, McLaughlin C.J.C. wrote the judge must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests”. In the present case, it was not only a computer that was unlawfully searched, but the entire home of the Accused that was unlawfully searched. The search had obvious personal emotional impact on the Accused, who was in her bedroom when police arrived. Her attire was not described, but she did at one point, according to police witness, ask to change her clothing. She was excited and confrontational, and as a result was arrested and removed from her house, and told that she would be charged with obstruction, a charge that is not before the Court. The scope of the illegal search was much wider than in Vu, and the personal and emotional impact that included arrest, was much greater. [44] These factors must be balanced to determine whether the evidence obtained should be excluded. In Part of the Grant case, the Court discussed the impact of the factors in situations of different types of evidence. In the present case, the evidence is prescriptive, but it is reliable. It is not conclusive of an offence, however, and there is the potential evidence to be obtained from the child involved, as well as the adult male who was present. The breach of the section Charter Rights consisted of potentially three modes: the defective ITO, the failure to observe the specific direction of the warrant to return the items to the justice, and the breach based upon the recent case of R. v. Vu, supra. The errors and omissions in the ITO go beyond ordinary inadvertence and constitute careless and negligent drafting and poor investigation as outlined. The impact of the breach was significant to the Accused person in multiple ways, and constituted an intrusive and unlawful search of her living space, and her own arrest. The charge is one of significance, with high societal interest, but so are the rights infringed in this breach of the Charter. [45] The impact of exclusion of evidence on this case and the public confidence in the administration of justice must be considered. Societal interest in the adjudication of this case on its merits is high as it involves an allegation of invitation to sexual touching by person in authority to young child. The adjudication of the charge before the Court is not entirely frustrated, however, if the evidence is excluded. Further, even with the impugned evidence, the outcome is by no means clear and certain. [46] The unlawful search produced photographic evidence that has been described and may be consistent with such an offence, but it is not of such weight as to be conclusive of the issue, in my opinion. Other evidence would have to be considered, and other evidence would, it may be reasonably assumed from the voire dire, be available. The photographic evidence would need to be augmented by evidence of the child involved, and of the person who took the pictures, and might be weighed in balance with evidence from the Accused. It cannot be said that exclusion of this evidence would be tantamount to dismissal of the charge, as the evidence excluded is only additional corroboration of evidence that would have to come from other persons. [47] The evidence to be excluded could only be determinative of the case if the Crown only intended to present the photographs to prove the invitation to sexual touching. As noted, the photographs are not be the only evidence available, though they might be very significant. However, in my opinion, for the Crown to rely only on the evidence of the photographs might not ensure conviction. For these reasons, conclude that the administration of justice is not affected by their exclusion as much as in cases where the crown case rests entirely on admissions in an excluded statement, or an excluded certificate of analysis. As such, the negative impact of exclusion on the reputation of the administration of justice is much diminished compared to those categories of cases. [48] For these reasons, in apply the test developed in R. v. Grant, supra, would rule the search unlawful and exclude the evidence obtained from consideration in this trial. APPENDIX INFORMATION 31461438 REGINA REGISTRY IN THE PROVINCIAL COURT OF SASKATCHEWAN IN THE MATTER OF HER MAJESTY THE QUEEN A.M.B. ADMISSION OF FACTS FOR VOIR DIRE The accused, A.M.B. (the “Accused”), through her Counsel, admits the following matters of fact for the purpose of dispensing with proof at the voir dire herein: 1. That on the 19th of December, 2011, the Regina Police Service executed Criminal Code search warrant at the residence located at 6415 Hird Crescent, Regina, Saskatchewan (the “Residence”). 2. That Samsung camera was located by Cpl. Lisa Davey (Cpl. Davey”) on the kitchen counter. That was seized by Cpl. Davey at 13:15 hours and labelled as item 678-1 on the Property List. 3. That Toshiba Satellite laptop (the “Laptop”) was located by police on the kitchen table. Cpl. Davey seized the Laptop at 13:20 hours and labelled as item 678-2 on the Property list. 4. That Samsung cellular phone was located and seized by Cpl. Davey from the Accused at the Residence. That was labelled as item 678-3 on the Property List. 5. That Gateway computer tower was located by Cpl. Davey on the living room floor. That was seized by Cpl. Davey at 13:40 hours and labelled as item 678-7 on the Property List. 6. That Cpl. Davey took twenty-one scene photographs at the Residence. 7. That Cst. Paul Fisher from the RCMP retrieved fifteen photographs from the Laptop at the Residence. These admissions are submitted and filed by consent of the Prosecutor and Defence Counsel. Dated this 21 day of May, 2013. “Carmen Choi” “Christina Skibinsky” Prosecutor Defence Counsel Carmen Choi Christina Skibinsky for
Constitutional Law – Charter of Rights, Section 8Criminal Law – Sexual Touching – Child VictimThe accused was charged that she did, with a sexual purpose, invite a person under the age of 16 years to touch a part of her body contrary to s. 152 of the Criminal Code. The case involved alleged improper acts by the accused with respect to her eight-year-old son. The information regarding the alleged incident had been given by the accused’s son to her husband. The parties were separated. The husband apparently involved a child protection worker, who interviewed the child. After this RCMP were contacted. On the basis of an RCMP’s affidavit, an ITO was prepared and a search warrant obtained. During the search, the accused’s cell phone was seized and photographs were found on it. They showed the accused lying naked on a bed with her breasts and vaginal area covered and showing her son in his pajamas, holding a bottle of lotion and touching her legs, feet and stomach. Before trial, defence counsel requested that a voir dire be held for the purpose of determining whether the information to obtain the search warrant (ITO) was sufficiently defective that the warrant was invalid, thereby infringing s. 8 of the Charter and that the evidence obtained should be excluded. The ITO did not allege that the commission of sexual assault or the creation of child pornography. The search warrant though authorized a search for images of explicit sexual activity with a person under the age of 18, with emphasis on sexual organs and the anal region, which were not related to the offence alleged to have been committed and was not supported by the ITO. The warrant authorized the search and search of devices that included cameras capable of storing images or data and computers or any other electronic devices as well as conventional photographs depicting sexual activity as described above. However, the warrant to search specifically stated that the police were authorized to search for the said “things and to bring them before or some other justice”. When the search warrant was executed, about three constables and a social worker went to the accused’s home. She was in her bedroom and was very upset when advised that there would be a search of her house. She was arrested for obstruction when she objected to the police looking at a computer, taken into custody and removed from the house to a police vehicle. During the ensuing search, one officer looked through a computer, searching for pictures. He testified that he had done so as “previewing for relevancy” and had in fact, found relevant photographs. Another constable, who had not reviewed the warrant, searched the accused’s purse and found a cell phone, which was an item not included in the warrant. Other issues raised by the defence included that the information contained in the affidavit had not met the test of establishing that an offence had been committed and that misleading information had been included. The affidavit had identified that the search was for explicit sexual pictures that did not correspond to the information obtained from the child, who was the only source of information of the alleged offence. The information in the ITO came from a number of different sources, including the original complaint by the accused’s husband who was engaged in a matrimonial dispute with her. The husband had made a number of complaints against his wife in the past, none of which resulted in a conviction. The officer who swore the affidavit had not differentiated between information obtained by him and information from third party sources. The officer also set out information, including photographs, he had obtained from an Internet search that pertained to the accused as a lingerie model. The purpose of including the information was not made clear. The officer did not disclose in the ITO the detailed nature of the information disclosed by the child to the child protection worker, which would have had the potential to detract from the likelihood of an offence having been committed, such as the accused asking her son to massage her because she was sore. The child stated that he did not believe that he had been sexually abused. Furthermore, the child identified the photographer, but the police had not interviewed him. The issues before the Court were: 1) if the Warrant to Search was valid in view of the issues raised with respect to the completeness and validity of the ITO; 2) if the search of the computer conducted on the premises was legal, either because of the rules established in R. v. Vu or because of the wording of the warrant itself; and 3) if there was a breach or breaches of the Charter, should the evidence be excluded?  HELD: The Court found with respect to the issues that: 1) the ITO could not support the issue of the warrant by a justice acting judicially in considering the effect of the statements in the ITO regarding modelling and the omission of the information in the child protection worker’s report, that the husband of the accused had previously made allegations against her, the misleading statement in the ITO concerning the specific types of pictures that the officers would search for, suggesting an investigation of more serious activity not supported by the information provided. The Warrant to Search was a nullity and the search unlawful; 2) the search of the computer on the premises was illegal both in terms of its violation of the terms of the warrant and because the Supreme Court decided in Vu that a warrant must expressly grant the authority to search a computer; and 3) the evidence from the illegal search of the computer was excluded. The breach of the accused’s s. 8 Charter right was serious because of the negligence shown by the police in their investigation of the complaint, the drafting of the ITO and the execution of the warrant. The impact of the breach on the accused was serious. Her entire home was unlawfully searched as well. The effect of the search was emotional and upsetting to the accused and resulted in her arrest. The interests of society in the administration of justice will be protected because the exclusion of the evidence would not be determinative of the Crown’s case.