



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pahle, 2020 ONCA 725

DATE:  20201110

DOCKET: C66393

Fairburn A.C.J.O., Trotter and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Pahle

Appellant

James Harbic, for the appellant

Erica Whitford, for the respondent

Heard and released orally: October 29, 2020

On appeal from the conviction entered by Justice A. Doyle
    of the Superior Court of Justice, dated December 11, 2017 and on appeal from
    the sentence imposed on January 7, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of possession of child
    pornography. He was sentenced to a 15-month custodial term. He appeals from
    both conviction and sentence.

[2]

The conviction appeal is predicated upon alleged errors in the trial
    judges
Garofoli
and
Charter
ruling arising in a search
    warrant used to search the appellants home, resulting in seizures of his
    computer and two memory cards. Those devices were subsequently searched and
    found to contain close to 10,000 images of child pornography. They also contained
    movies involving child pornography.

[3]

In his able submissions, the appellants counsel maintains that the
    trial judge erred in her approach to the
Garofoli
ruling, specifically
    in her approach to the amplification of the information to obtain the search
    warrant, including the things that she excised from and added into it. We see
    no such errors.

[4]

The trial judge clearly articulated the law on amplification and applied
    that law to the issues identified by the appellant.

[5]

As to the
Charter
ruling, the trial judge found three
    specific s. 8
Charter
breaches. The first two are
known colloquially as a
Branton
error and a
Spencer
error. The trial judge also found a s. 8
Charter
breach
    arising from the late filing of a report to a justice, stipulating the items
    seized.

[6]

Despite these breaches, in careful and
    detailed reasons, the trial judge declined to exclude the evidence under s.
    24(2) of the
Charter
. The appellant takes issue with the s. 24(2)
    ruling. We see no error in the trial judges approach.

[7]

The trial judge set out the law governing
    a s. 24(2) analysis in some detail and carefully followed the three-prong
Grant
analysis. In the end, she properly weighed all factors for
    consideration and concluded that the evidence should not be excluded. We see no
    basis upon which to intervene.

[8]

As for the sentence appeal, the
    appellant claimed that the sentence is harsh and excessive in light of the
    circumstances surrounding the offence and the appellants pre-existing medical
    condition. Again, we defer to the trial judges reasoning. These matters were
    taken into account by the trial judge and we see no legal or other error in how
    she approached the matter.

[9]

We have been provided with fresh
    evidence from the appellants family physician that confirms that his medical
    situation remains the same. We see no basis on the record, including the fresh
    evidence, to interfere with the sentence imposed. We direct that the letter before
    this court be provided to the custodial authorities so that the appellants medical
    condition can be properly addressed by those authorities.

[10]

The conviction appeal is dismissed.
    Leave to appeal sentence is granted, but the sentence appeal is dismissed.

Fairburn
    A.C.J.O.

G.T.
    Trotter J.A.

S.
    Coroza J.A.


