QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 53 Date: 2017 01 03 Docket: CRM 100 of 2016 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and DEAN FRANKLIN LOMMERSE Restriction on Publication: There is court order prohibiting the publication or broadcast of any evidence tendered or submissions made in this application, including this decision, until the conclusion of the trial. Counsel: Maura Landry for the Crown Brian J. Smith for the accused JUDGMENT MEGAW J. JANUARY 3, 2017 INTRODUCTION [1] The accused has applied for relief pursuant to ss. 24(2) of the Canadian Charter of Rights and Freedoms [Charter] to exclude evidence seized through the execution of a search warrant. The actual evidence seized was not disclosed at the hearing. It is apparently located on either the accused’s laptop computer or his cell phone. [2] The application proceeded by way of voir dire. The Crown called evidence to amplify the statements set forth in the Information to Obtain Warrant to Search [ITO]. The admissibility of this evidence is in issue. [3] The accused called no evidence. He disputed the facial validity of the search warrant. He also argued his s. 8 Charter rights had been violated as a result of the search. [4] The determination of whether any evidence seized should be excluded was dependent on the decision on the above captioned issues. As result, argument on the exclusion of any evidence pursuant to ss. 24(2) of the Charter was to await the determination of these issues. BACKGROUND [5] The accused is charged in an Indictment as follows:1. THAT HE, the said Dean Lommerse between the 2nd day of April, A.D. 2013 and the 30th day of May, A.D. 2013 at or near Regina, Saskatchewan, did commit a sexual assault on ----- --------, contrary to section 271 of the Criminal Code of Canada.2. THAT HE, the said Dean Lommerse between the 2nd day of April, A.D. 2013 and the 30th day of May, A.D. 2013 at or near Regina, Saskatchewan, did being in position of trust or authority toward ------ --------, a person aged sixteen years, for a sexual purpose, touch, directly or indirectly, with a part of the body, any part of the body of ------ --------, contrary to section 153(1)(a) of the Criminal Code of Canada.4. THAT HE, the said Dean Lommerse on or about the 25th day of October, A.D. 2013 at or near Regina, Saskatchewan, did have in his possession child pornography to wit: possessing digital files of a person who is or 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 a sexual organ or the anal region of a person under the age of eighteen, contrary to section 163.1(4) of the Criminal Code of Canada. [6] The accused originally came to the attention of the Regina Police Service when the complainant reported having had sexual contact with Mr. Lommerse. The complainant was young person at the time of the alleged contact. The officer who received the complainant’s information was Constable Howell. He was working with the vice unit of the police service and had 15 years of police experience. [7] The complainant told Cst. Howell that while she was present in the accused’s apartment, he had sexually assaulted her. She said that when she was there, the accused was always on one of two websites: “Plenty of Fish” or an unnamed pornographic massage site. The officer determined evidence of the accused viewing these sites, when the complainant said she was in his apartment, would provide corroboration of the complainant’s allegations. [8] The officer prepared an ITO setting forth his belief the accused had committed the offences of sexual assault and sexual exploitation of the complainant between April and May 30, 2013. There is no reference in the ITO to the offence of possession of child pornography. He relayed the history of his investigation and, in support of his request for warrant, stated: At present, the evidence in this investigation hinges around the video statement of believe her statement to be credible because the actions of Dean Lommerse as described by and because of ’s knowledge of Dean Lommerse’ [sic] dating web site. ‘s reluctance to file police report would also suggest that she does not have motive for making false statement. The search history on the computer used by Dean Lommerse will show how often he was viewing “massage porn” and provide evidence to the fact that he was viewing those sites while in the presence of The computer storage devices will also provide evidence towards Lommerse’ [sic] obsession with massage porn, and the credibility of [9] The justice authorized the warrant to search the following locations: (i) Any devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic or optical computer impulses or date. These devices include computers, computer components, computer peripherals, modems and routers, external and internal hard drives, USB flash drives, cameras and other computer related devices. (iv) Any information and/or data stored in the form of magnetic or electronic or optical coding on computer media or on media capable of being read by computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes laser disks, CDs, DVDs and any other media or device which is capable of storing computer data. (v) Documentation pertaining to the occupant or occupants of the home, that will assist in proving their occupation of the residence and control of the computer equipment located therein and/or assist in proving the elements of the offence. The numbering of (ii) and (iii) are not included in the warrant. There was no explanation provided for this omission. [10] The ITO sought only search of the “search history on the computer.” The warrant does not use such limiting words. [11] According to the evidence of Cst. Howell, after the complainant completed her formal statement, she then provided additional information that the accused had taken pictures of her while she was naked and in the shower. This information is not included in the ITO. [12] Cst. Howell explains it was an oversight on his part to leave this information out. He testified he wanted to get the search warrant out prior to the end of his shift. He did not amend the ITO. Neither did he swear further ITO disclosing this additional information and seeking further search warrant with different search parameters. [13] Cst. Howell executed the search warrant. He seized laptop, an iPhone, various accessories, charger, cable and CDs. He delivered the material to Sergeant Kuan, computer forensic specialist with the Royal Canadian Mounted Police. At the time of the delivery, Cst. Howell requested of Sgt. Kuan that he complete forensic search of the computer and phone to obtain the following: 1. General search of the internet history; 2. Pictures of the complainant; and 3. Messages between the complainant and the accused. [14] Cst. Howell knew the search of pictures was not included on the search warrant. Yet, he still made this specific request to Sgt. Kuan. Sgt. Kuan did not review the terms of the warrant prior to completing his forensic examination. The practice in 2013 was not necessarily to review the warrant. That practice has since changed. [15] To complete forensic search, Sgt. Kuan first creates mirror image of the contents of the computer and the phone. This includes all files on the device including deleted files. The software employed automatically gets everything on the device and then it is up to the forensic examiner to delve into the device in accordance with the search warrant or his/her instructions. [16] He obtained the search history of the internet, all of the photographs and videos and the text messages. It is unclear from the evidence given by Sgt. Kuan whether any actual messages between the complainant and the accused were obtained. [17] Sgt. Kuan testified his forensic analysis would allow him to obtain from the devices specific items requested. For example, if he had been asked only for the internet search history, he could carve this out from the mirror image created and send that to the investigators. He further testified he uses different software to get at different items located on the devices, be those items pictures, internet history or other. This process applies equally to the laptop and to the cell phone. [18] As indicated do not know the nature of the evidence actually obtained. That information was not placed before the court as part of this voir dire. ISSUES [19] The following issues are raised for consideration on this voir dire:1. What is the correct procedure to be used to challenge evidence seized pursuant to a search warrant;2. Is the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted;3. Does the ITO set forth reasonable and probable grounds that the items sought are evidence with respect to the commission of an offence;4. Does the ITO use boiler plate clauses;5. Does the ITO establish reasonable and probable grounds that the items are likely to be found in the place to be searched;6. What is the extent of a search of a computer or computer device. 1. What is the correct procedure to be used to challenge evidence seized pursuant to search warrant? [20] The accused filed an application for Charter relief in the form of the exclusion of evidence pursuant to ss. 24(2) as result of breach of the s. rights of the accused. The date for the conduct of the voir dire was established by agreement of counsel at pre-trial conference. There was no dispute taken by the Crown to the procedure employed by the accused in this regard. [21] The procedure to be followed on voir dire is set forth in Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421 as follows: 30 voir dire is held to determine the admissibility of evidence proposed for admission by party to criminal proceeding: R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 17 O.R. (2d) 465 (C.A.), at p. 469, aff'd 1980 CanLII 31 (SCC), [1980] S.C.R. 785. On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of the proposed evidence have been met. The voir dire is separate proceeding from the trial proper and the evidence taken on voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation: R. v. Erven, 1978 CanLII 19 (SCC), [1979] S.C.R. 926, at p. 932; R. v. Darrach, 2000 SCC 46 (CanLII), [2000] S.C.R. 443, at para. 66; R. v. Dela Cruz, 2007 MBCA 55 (CanLII), 220 C.C.C. (3d) 272, at para. 24; and R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] S.C.R. 441, at p. 454. 31 Each admissibility issue warrants separate inquiry or voir dire. It seems logically to follow from the very nature of voir dire as separate proceeding that evidence adduced on one voir dire does not, without more, become evidence on another voir dire held to determine different admissibility issue. The Procedure on voir dire 32 The manner in which voir dire is to be conducted is left to the discretion of the presiding judge, and is not subject to rigid or pre-fabricated rules. Relevant factors include, but are not limited to, the nature of the issue under consideration and of the case itself, as well as the means of proof available: R. v. Kematch, 2010 MBCA 18 (CanLII), 252 C.C.C. (3d) 349, at para. 43. See also Rule 34.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), (Criminal Proceedings Rules). 33 In many instances, evidence proposed for admission may implicate more than one admissibility rule. In prosecutions for unlawful homicide, for example, statements the deceased has allegedly made to others, expressing fear of the accused and recounting incidents of actual or threatened violence, may engage both the hearsay and bad character rules. police interview of the accused may be challenged on voluntariness and constitutional grounds. It is commonplace to conduct single voir dire to determine admissibility in these cases and prudent use of judicial resources to do so. That said, presiding judges must be scrupulous to ensure that their rulings respect differing burdens and standards of proof and reflect an informed understanding of the governing admissibility rules: R. v. Voss (1989), 1989 CanLII 7167 (ON CA), 50 C.C.C. (3d) 58 (Ont. C.A.), at pp. 79-80. The Warranted Search voir dire 34 Admissibility challenges occur frequently where Crown counsel seeks to adduce evidence, real evidence, of things found and seized during search of person, place, or thing. Real evidence, like items found and seized during search, which meets the standards of relevance and materiality, is prima facie admissible. And this remains so whether the investigative conduct that yielded the evidence is lawful or unlawful. 35 Challenges to the admissibility of real evidence seized during a search involve a two-step inquiry. Because the criminal trial process cares about the constitutionality of state conduct that produces evidence that the Crown proposes to introduce in criminal prosecution, the first step is an inquiry into constitutionality. The second step, reached only after demonstration of constitutional infringement, is an inquiry into the admissibility of the evidence obtained by the infringement. Both inquiries impose an onus on the person who claims unconstitutional conduct and seeks exclusion of the evidence obtained by it. The standard of proof required is proof on balance of probabilities. 36 In trials in the Superior Court of Justice, an accused who seeks exclusion of evidence alleged to have been obtained by constitutional infringement is required to comply with Rule 31 of the Criminal Proceedings Rules. The Rule promotes constructive use of judicial resources and avoids surprise by requiring, among other things, written application that contains precise, case-specific statement of the basis and grounds upon which exclusion is sought, detailed summary of the evidence or other material upon which reliance is placed, and statement of the manner in which the applicant proposes to introduce the evidence. Challenges to the constitutionality of warranted searches may involve either or both facial and sub-facial attack on the authorizing warrant. No reason in principle requires separate voir dire for each mode of attack, although many prefer discrete hearing for each. 37 facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 19. The record examined on facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252 (CanLII), 272 C.C.C. (3d) 269, at para. 39. 2. Is the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted? [22] The Crown seeks to introduce evidence of Cst. Howell’s discussion with the complainant that the accused took photographs of her while she was naked and showering. [23] This information is, apparently, not contained in the complainant’s original statement given to Cst. Howell. It was allegedly provided after the formal interview in the police station had been completed. This information is not set forth in the ITO. The suggested criminal offence of possession of child pornography is not contained in the ITO. [24] Based on the information allegedly received from the complainant, Cst. Howell requested Sgt. Kuan to search other areas of the computer looking for child pornography. The evidence of the discussion between Cst. Howell and the complainant is sought to be entered to amplify what Cst. Howell actually swore to in the ITO. In the result, the Crown seeks to then justify, or authorize, the seizure of additional items taken in the execution of the search warrant. [25] In James A. Fontana David Keeshan’s The Law of Search Seizure in Canada, 9th ed (Toronto: LexisNexis, 2015) at 338-339, the issue of amplification is explained as follows: In certain circumstances, the reviewing court is entitled to take into account material that was adduced on the review but that was not placed before the issuing justice. This practice may be referred to as “amplification”. In R. v. Garofoli [1990 CanLII 52 (SCC), [1990] SCR 1421], Sopinka J. touched on this question in passing when the stated: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. (Emphasis added in original) He developed the concept further in R. v. Plant [1993 CanLII 70 (SCC), [1993] SCR 281], where the information on search warrant application compressed two parts of the police investigation by stating that an informant had supplied the police with particular address, when the informant actually supplied precise description of the house that enabled the police to identify its address: In considering the material that was properly before the authorizing judge, however, only the information actually obtained from the tipster should be included. In addition, this information could be amplified by reference to the fact that the police were able to locate residence matching the description which they were given. This information, coupled with the results of the computer check, were, in my opinion, sufficient to constitute reasonable grounds for the issue of the warrant. The Nova Scotia Court of Appeal in R. v. Morris [(1998), 1998 CanLII 1344 (NS CA), 134 CCC (3d) 539], building on R. v. Garofoli and R. v. Plant, set out general framework for the use of amplification on review of search warrant. Speaking for the court, Cromwell J.A. stated: Although evidence obtained in violation of the Charter and evidence that was deliberately or purposefully false or misleading must be excluded from consideration on review, this principle does not extend to all misleading and incorrect material. Misleading or inaccurate information does not have to be totally excluded from consideration unless it is part of deliberate attempt to mislead the issuing justice. Erroneous material may be amplified by evidence on review showing the true facts. Evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject to the requirement that unconstitutionally obtained evidence cannot be considered. [Emphasis in original] [26] In Araujo, 2000 SCC 65 (CanLII), [2000] SCR 992, Madam Justice LeBel, speaking for unanimous court described the balancing act which court must employ when considering amplification evidence: 59 When using amplification, courts must strike balance between two fundamental principles of search and seizure law that come into rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 1994 CanLII 1682 (BC CA), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] S.C.R. vii). The danger inherent in amplification is that it might become means of circumventing prior authorization requirement. Since prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require close examination of the information available to the police at the time of the application for wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on wiretap application attempts to reconcile these principles. Courts should take similar approach to amplification. [Emphasis added] [27] Amplification evidence is intended to correct minor or technical errors made by the investigators, but which were done in good faith and not with an intent to either deceive or mislead. good discussion of this was completed by Dufour J. in Wonitowy, 2010 SKQB 346 (CanLII), 358 Sask 303: 24 An amplification hearing was conducted at the opening of the voir dire to deal with the accused’s motion to exclude evidence. Sgt. Parisien reiterated that which was contained in the ITO, but testified to much that was not in it. For example, he provided further details of his training as an internet child pornography investigator, explained how “deleted” computer files can be recovered by police experts, provided more information regarding the amount of child pornography on the computer and related anecdotal evidence as ostensible support for his belief that those who download child pornography tend to keep it. He also explained why there was seven month gap between his discovering the pornography on the computer and the swearing of the ITO. 25 In my opinion, none of Sgt. Parisien’s testimony in the amplification hearing is admissible in respect of whether the accused’s s. Charter rights were violated. 26 The scope of evidence at an amplification hearing is limited to correcting “some minor, technical error in the drafting of their affidavit material” or to “exclude erroneous information” in the ITO from the Court’s consideration in the review (R. v. Araujo, supra, at paras. 58 and 59). The evidence the Crown sought to adduce here goes well beyond those very narrow parameters and to admit it would be to permit the use of amplification evidence as “a means of circumventing prior authorization” (Morelli, supra, at para. 42). 27 Counsel for the Crown takes the position that the evidence of Sgt. Parisien at the amplification hearing is admissible and refers me to R. v. Fougere, 2010 NSSC 169 (CanLII), 290 N.S.R. (2d) 307. The basis for authorizing the search in that case was tip from an informant that the accused was growing marijuana in his backyard. The ITO did not indicate when the tipster actually observed the marijuana plants and therefore, the accused argued, there was insufficient evidence to support the inference that the marijuana would still be in his backyard at the time of the search. There was an amplification hearing at which Edwards J. admitted testimony from the police officers that they had received the tip “within month” of the issuance of the search warrant. Edwards J. considered Morelli and concluded that the Crown could adduce evidence at the amplification hearing to establish the recency of the tip because that information was known to the police at the time the ITO was sworn. As such, he appears to reason, the Crown was entitled to supplement the evidence in the ITO with testimony of that which was in the minds of the police at the time of the search. 28 With respect, in my opinion it matters not that which the police knew at the time of the search. What matters is whether there was sufficient evidence in the ITO. To hold otherwise would be contrary to Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145, wherein Dickson J. held that the purpose of s. of the Charter is to protect individuals from unjustified searches “before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (at para. 160). To allow the Crown to supplement the record with Sgt. Parisien’s testimony would be to countenance subsequent validation. 29 No evidence was adduced at the amplification hearing that identified errors in the ITO that should be corrected or misleading statements that should be excised. Thus, my considerations in this review will be based solely on that which was put before the justice in July 2007. [28] The Supreme Court of Canada in Morelli, 2010 SCC (CanLII), [2010] SCR 253 [Morelli] made the point succinctly and directly: 40 In reviewing the sufficiency of warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence that is, additional evidence presented at the voir dire to correct minor errors in the ITO so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice. 42 It is important to reiterate the limited scope of amplification evidence, point well articulated by Justice LeBel in Araujo. Amplification evidence is not means for the police to adduce additional information so as to retroactively authorize search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing prior authorization requirement" (Araujo, at para. 59). 43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para. 59). In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59). [29] During argument, the Crown emphasized that Cst. Howell was proceeding in good faith. It was submitted he had merely erred in failing to include the information in the ITO. [30] What the Crown seeks to do here is really to advance an argument that the ends justify the means. Cst. Howell knew of this information but testified he just made an error in not including it in the original ITO. The unsaid portion of that argument is that the state surely would have got the search warrant for the expanded material if it had been properly included so it can properly be included at this stage. It may also go so far as to say the information received, ultimately turned out to be correct because child pornography was actually found. [31] This argument necessarily requires review of first principles with respect to the necessity of the state to obtain authorization prior to completing search of an individual’s possessions. Dickson J. in Hunter Southam Inc., 1984 CanLII 33 (SCC), [1984] SCR 145 stated at 155: 16. It is clear that the the [sic] meaning of "unreasonable" cannot be determined by recourse to dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding constitution is crucially different from that of construing statute. statute defines present rights and obligations. It is easily enacted and as easily repealed. constitution, by contrast, is drafted with an eye to the future. Its function is to provide continuing framework for the legitimate exercise of governmental power and, when joined by Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like last will and testament lest it become one". [32] In this case, the officer testified it was his error in failing to include the child pornography information in the ITO and he committed the error because he was rushing to complete the matter prior to the end of his shift. He suggested he recognized his error after the search warrant was issued. He testified as to relative lack of experience in completing search warrant materials. He told Sgt. Kuan about searching for child pornography. Why he did not complete further ITO and seek warrant putting this information before the justice is not explained in any way. Rather, the Crown simply relies on the indicated ends justify the means argument. [33] This is not how amplification evidence is intended to work. The present attempt is little more than cloaked way of “circumventing prior authorization requirement.” It does not allow for reflection and consideration by the justice as is required on these types of matters. The sought after exclusion is neither minor nor technical. It seeks to allege a whole new criminal offence and a whole new area of search on the accused’s computer devices. [34] As a result of this analysis, I am not prepared to admit the amplification evidence sought by the Crown. 3. Does the ITO set forth reasonable and probable grounds that the items sought are evidence with respect to the commission of an offence? [35] The accused argues the search history to provide evidence of visits to the “Plenty of Fish” and pornographic massage websites are providing nothing more than propensity evidence against the accused. Accordingly, it is argued the warrant was not seeking evidence with respect to the commission of an offence. [36] The Crown responds the evidence was not sought to show the accused’s propensity for either pornographic or dating websites. Rather, the Crown argues the website information has the potential to corroborate portions of the complainant’s evidence. The complainant has provided statement saying when she was at the accused’s apartment, he was on his computer visiting these specific websites. The Crown submits the time and actual website will assist in providing corroborative evidence of the complainant’s statement. [37] The ITO provides basis for both of these submissions. Cst. Howell swears viewing of the sites while in the presence of the complainant will provide evidence to assist with the credibility of the complainant. However, Cst. Howell swears that this information will also provide evidence of the accused’s “obsession with massage porn.” [38] The point of this voir dire is not to determine admissibility of evidence outside of the search warrant context. That determination may yet occur at the trial of this matter, should the Crown seek to introduce this material as part of its case. The Crown has indicated the sole purpose for which it seeks to obtain the evidence of the website visits. It may be that at the trial, the accused determines to advance arguments disputing the admissibility of this evidence. That does not result in the warrant not seeking evidence with respect to the commission of the evidence. In many cases the police are seeking evidence in support of the allegations made. There is no requirement this evidence be directly connected to the complainant or the actual subject matter of the complaint. [39] This part of the accused’s argument is dismissed. 4. Does the ITO use boiler plate clauses? [40] The ITO refers to the following search parameters: (i) Any devices which are capable of analyzing, creating, displaying, converting, storing or transmitting electronic or magnetic or optical computer impulses or date. These devices include computers, computer components, computer peripherals, modems and routers, external and internal hard drives, USB flash drives, cameras and other computer related devices. (ii) Any information and/or data stored in the form of magnetic or electronic or optical coding on computer media or on media capable of being read by computer with the aid of computer related equipment. This media includes floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes laser disks, CDs, DVDs and any other media or device which is capable of storing computer data. (iii) Documentation pertaining to the occupant or occupants of the home, that will assist in proving their occupation of the residence and control of the computer equipment located therein and/or assist in proving the elements of the offence. [41] The conclusion indicates what Cst. Howell sought to obtain from these devices was the “search history”. [42] The accused argued originally that the ITO made no reference to cell phone in support of the other computer related devises. Counsel, during argument, recognized this assertion was incorrect. Cst. Howell indicated the information received from the complainant was that the accused “texted” her. It was accepted this was reference to cell phone for the texting capability. [43] I do not determine the ITO uses impermissible boiler plate clauses when it is read in its entirety. Cst. Howell seeks to obtain the search history from the computer devices. In this context it is not boiler plate language. Rather, it is explicitly directed at getting the search history as potential evidence in this matter. [44] What is not clear from the argument conducted is whether the language is sufficient to capture text messages contained on the accused’s cell phone. As indicated, there is reference in the ITO about the accused texting the complaint: “Lommerse continued to text to times day”. [45] However, nowhere in the ITO does Cst. Howell refer to the need to search the cell phone for text messages to obtain evidence with respect to the commission of an offence. Other than the statement cited, there is simply no other reference in the materials. [46] It appears the ITO does not set forth reasonable and probable grounds that the text messages are evidence with respect to the commission of an offence. 5. Does the ITO establish reasonable and probable grounds that the items are likely to be found in the place to be searched? [47] Cst. Howell seeks the “search history” off the computer devices. It is necessary to review the principles for reviewing warrant. In Garofoli, 1990 CanLII 52 (SCC), [1990] SCR 1421, the jurisdiction of the court reviewing the ITO is put as follows at 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [48] In the text The Law of Search and Seizure in Canada, the authors refer to the decisions which have set forth convenient summary of the principles governing review at 329-330: In R. v. Allain, Drapeau J.A. (as he then was) provided statement of the general principles that at that time governed trial judge’s review of the validity of search warrant. The New Brunswick Court of Appeal in R. v. Arsenault neatly summarized those principles as follows: 1) trial judge’s review must be undertaken from the standpoint that the impugned search warrant and the ITO are presumed valid; 2) The burden rests on the challenger to satisfy the reviewing judge that the ITO does not comply with the substantive requirements set by law; 3) The reviewing court must not assess the substantive quality of the ITO by confining itself to the evidence which is explicitly set out in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence; 4) The assessment by the reviewing court must take into account the totality of the ITO, interpreting its constituent parts in context; 5) An overly strict interpretation of the words used in the ITO is not warranted by the jurisprudence, or by s. of the Charter, but the reviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements; 6) Ultimately, where the ITO does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannot be said to have been properly issued; 7) Where the evidentiary record before the reviewing judge is not materially different from the record before the issuing judge, the test on review is whether there was some evidence before the issuing judge upon which that judge could, acting judicially, issue the warrant to search; 8) However, where the record that can be considered by the reviewing court is materially different from the record before the issuing judge, such as where material parts of the ITO have been excised, the test on review is whether the warrant would have issued on the basis, of the evidence which remains; 9) Where the evidentiary record before the reviewing court is materially less significant than the record before the issuing judge, there is no longer any principled justification for deference and it is up to the Crown to satisfy the reviewing judge that (the warrant would have issued on the basis of the remaining evidence. [49] The accused’s argument is to the effect that reference to “search history” is not specific enough and is technical term requiring explanation and definition, from an expert in computer technology. This argument was confined to the issue of the information received that the accused visited certain websites when the complainant was in his apartment. However, it may also apply to the texting history between the accused and the complainant which may be found on the phone. [50] The search warrant and ITO are presumed to be valid. The issuing justice is entitled to draw reasonable inferences from the material. The ITO explicitly makes reference to the particular websites alleged to be visited by the accused. Here, the term “search history” is expanded upon in the ITO: At present, the evidence in this investigation hinges around the video statement of believe her statement to be credible because the actions of Dean Lommerse as described by and because of ’s knowledge of Dean Lommerse’ [sic] dating web site. ’s reluctance to file police report would also suggest that she does not have motive for making false statement. The search history on the computer used by Dean Lommerse will show how often he was viewing “massage porn” and provide evidence to the fact that he was viewing those sites while in the presence of The computer storage devices will also provide evidence towards Lommerse’ [sic] obsession with massage porn, and the credibility of [51] In my view, it is a reasonable inference to draw that search history means the search history of the accused with respect to the websites identified in the ITO. Accordingly, the ITO provides sufficient description. As indicated, there will need to be further argument on whether the texts contained in the phone are caught by this phrase. 6. What is the extent of search of computer or computer device? [52] In this case, the entire contents of both the laptop computer and the cell phone were examined by Sgt. Kuan and the evidence disclosed was provided to Cst. Howell. In particular, Cst. Howell asked Sgt. Kuan to look for items of child pornography. These items were not indicated to be included in the search history. [53] The decision of Fish J. in Morelli completely describes the nature of computer search: [2] It is difficult to imagine search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of personal computer. [3] 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. [54] The police, upon seizure of a computer or computer related device are not entitled to rummage through the entire contents of the device searching for other evidence. In Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, the Ontario Court of Appeal states: [42] do not accept that the right to examine the entire contents of computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint even where, as here, the warrant may properly authorize unlimited access to the computer's files and folders in order to accomplish its search objectives. computer search pursuant to warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant. [55] Here the ITO sought only the “search history”. Accordingly, the only place they are permitted to search through is the search history and not the entire contents of the computerized devices. [56] As a result of the forgoing, evidence of the search history was validly obtained pursuant to the execution of the search warrant. Any other evidence obtained was not pursuant to the search warrant and is accordingly a violation of the accused’s s. 8 Charter rights.
The accused was charged with the commission of sexual assault, sexual touching in relation to a 16-year-old and possession of child pornography. The accused came to police attention via a report by the complainant. She reported that the accused was often viewing a pornographic website while in her presence. The police prepared an information to obtain a search warrant (ITO). The ITO stated that the search would provide evidence of the accused’s viewing of pornography in the presence of the complainant, bolstering the complainant’s credibility. The ITO did not reference possession of child pornography. The ITO sought only a search of the “search history on the computer”. The issued warrant authorized a search of the accused’s computer and related devices and media, as well as documents pertaining to occupancy of the home and control of computer equipment. The complainant subsequently alleged that the accused had taken photos of her in the shower. The police did not amend the ITO to include a search for photos. The police executed the search and seized, inter alia, a laptop, an iPhone and CDs. The police delivered the material to a computer forensic specialist at the RCMP and requested a complete forensic search of the computer and phone to obtain a general search of the Internet history, pictures of the complainant and messages between the complainant and the accused. The police knew that the search of pictures was not included on the search warrant. The RCMP did not review the terms of the warrant prior to completing the examination and examined the entire contents of the laptop and phone. The accused submitted that his s. 8 Charter rights had been violated by the search and applied for exclusion of evidence pursuant to s. 24(2). The application proceeded by voir dire. The evidence was apparently located on either the accused’s laptop or cell phone, but the nature of the evidence obtained was not disclosed at the voir dire. The following issues were raised: 1) What is the correct procedure to be used to challenge evidence seized pursuant to a search warrant; 2) Was the Crown able to call amplification evidence and have it considered in support of the search and seizure conducted; 3) Did the ITO set forth reasonable and probable grounds that the items sought were evidence with respect to the commission of an offence; 4) Did the ITO use boiler plate clauses; 5) Did the ITO establish reasonable and probable grounds that the items were likely to be found in the place to be searched; and 6) What was the extent of a search of a computer or computer device. | HELD: Evidence of the accused’s search history was validly obtained. Other evidence was beyond the scope of the search warrant and obtained by violation of the accused’s s. 8 rights. The court held: 1) There is a two-step inquiry to be made when real evidence is seized during a search. The first step is an inquiry into constitutionality, and the second is reached only after a constitutional infringement has been established. Both inquiries impose an onus on the person claiming infringement. The standard of proof is the balance of probabilities. Challenges to constitutionality of warranted searches may involve either or both a facial and a sub-facial attack on the authorizing warrant. The record examined on facial review is fixed: it is the ITO, not an amplified or enlarged record;  2) In attempting to enter evidence of the complainant’s allegation that the accused took pictures of her in the shower, the Crown relied on an argument that the ends justified the means. This amplification evidence sought to allege a whole new offence and area of search. It was not admitted; 3) The point of this voir dire was not to determine admissibility of evidence outside of the search warrant context. There was no requirement that evidence sought in support of allegations made be directly connected to a complainant or the actual subject matter of a complainant; 4) The ITO did not use impermissible boiler plate clauses when read in its entirety. However, it did not set forth reasonable and probable grounds that text messages were evidence with respect to the commission of an offence; 5) The ITO provided sufficient description. It was reasonable to infer that search history meant search history of the accused with respect to the websites defined in the ITO. Further argument was required on whether text messages could be included; and  6) Police are not entitled to rummage through entire contents of a device searching for other evidence. The ITO sought only the search history.