



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boca, 2012
    ONCA 367

DATE: 20120531

DOCKET: C54405

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Boca

Appellant

Ronald Ellis, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: May 4, 2012

On appeal from the conviction entered on September 24,
    2010 by Justice John L. Getliffe of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of 10 counts of distributing child
    pornography contrary to s. 163.1(3) and 11 counts of possession of child
    pornography contrary to s. 163.1(4) of the
Criminal Code
.

[2]

The appellant submits that his s. 10(b)
Charter
right to
    counsel was breached and that the trial judge erred in admitting three
    statements he gave to the police. He asks that the appeal be allowed and an
    acquittal entered.

[3]

The following facts provide sufficient context for our decision.  The
    police identified the internet protocol address of a computer sharing child
    pornography files. After determining the municipal address for the computers
    location they obtained a search warrant for the residence at this address. Upon
    entering the basement of the house, the police found three bedrooms that were
    rented out by the owner. The appellant was seated on a couch in the common area
    of the basement. Another man, Todd Blunt, emerged from his room. The third
    tenant was not at home.

[4]

The police spoke to the two men and showed them the warrant. The
    appellant submits that at this point he was detained. The appellant identified
    his bedroom.  This is the first statement the admissibility of which is
    challenged.

[5]

The police determined that there was a computer in the common area and
    another in the appellants bedroom. At this point neither man had been given the
    right to counsel.

[6]

Blunt left the area when the police learned he did not own or use a
    computer.

[7]

One of the officers went upstairs to speak with the landlord. In the
    meantime, another performed a cursory examination of the appellants computer
    and determined it contained child pornography. The appellant was called into
    the room where the officer confronted him with the images and questioned him
    about them. The appellant initially denied all knowledge of the images but
    subsequently admitted he was responsible for them. This is the second statement
    at issue. At this point the appellant had still not been given his s. 10(b)
    right to counsel. He was immediately arrested following his confession and at
    that point he was read his right to counsel and cautioned. The appellant
    indicated he understood and was transported to the station.

[8]

Two broken USB drives were found in the appellants pocket in a search
    incident to arrest. The appellant admitted they contained child pornography and
    that he had broken them on the way over to the police station.

[9]

When the appellant was booked into cells he was again given the
    opportunity to consult counsel. He declined. Later that evening police
    conducted a digitally recorded interview. Before the interview, the appellant
    was informed of his right to counsel and given the opportunity to exercise it.
    Again, he declined.

[10]

In
    the course of the 37 minute interview the appellant described how he accessed
    and made available child pornography using the Limewire program on his
    computer. This is the third statement at issue.

[11]

The
    trial proceeded as a blended
voir dire
. The appellant claimed his s.
    10(b) right to counsel had been violated and sought to have his various
    inculpatory statements excluded from evidence. The trial judge found that at the
    time of the first statement the appellant was not detained and there was no
    violation of his s. 10(b) right to counsel.  He found that the appellant was
    detained at the time of the second statement and therefore that the statement
    was obtained in violation of s. 10(b). He also found there was no violation of
    s. 10(b) in relation to the third statement. The trial judge declined to
    exclude any of the statements under s. 24(2). In light of the trial judges
    ruling, the court entered convictions on all charges.

[12]

The
    appellant submits that the trial judge erred in admitting the three statements.

[13]

In
    our opinion the trial judge did not err in admitting the first and third
    statements.  In relation to the first statement, in the context of executing a
    search warrant for child pornography at a residence occupied by numerous
    tenants, the police were entitled to ask some preliminary questions to
    determine how to proceed. The appellants identification of his room arose
    during this preliminary stage. He was neither physically detained nor subjected
    to any coercive demand or direction.  As a result the appellants right to
    counsel under s. 10(b) was not infringed.

[14]

The
    trial judge found that the third statement was not tainted by the breach of the
    appellants s. 10(b) right to counsel in relation to the second statement. We
    agree. Prior to the third statement, the appellants right to counsel was
    addressed on several different occasions. The appellant chose not to contact
    counsel. The appellant understood his rights and did not want to exercise them.
    The third statement was given in a different location, several hours after the
    alleged breach of the appellants right to counsel in relation to the second
    statement, and the appellant does not submit that the statement was involuntary.
    The fact that the appellant had already made several incriminating admissions
    in his second statement, standing alone, is not a basis from which to infer
    that the third statement is tainted.

[15]

As
    a result, even if the second statement was obtained in a manner that was a
    serious breach of the appellants s. 10(b) right to counsel and the trial judge
    erred in not excluding it under s. 24(2), our agreement with the trial judges
    finding that the third statement was not tainted means that the appellant was
    properly convicted.

[16]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

David Watt J.A.

Gloria Epstein J.A.


