



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. John, 2018 ONCA 702

DATE: 20180904

DOCKET: C63386

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathaniel John

Appellant

Gerald Chan, Stephen Aylward and Janani Shanmuganathan,
    for the appellant

Joan Barrett, for the respondent

Heard: June 27, 2018

On appeal from the conviction entered by Justice
    Jennifer Woollcombe of the Superior Court of Justice on August 3, 2016 and the
    sentence imposed on February 7, 2017, with reasons reported at 2017 ONSC 810.

Pardu J.A.:

[1]

The appellant appeals from both conviction and
    sentence on charges of possession of child pornography. He submits that the
    trial judge erred by failing to exclude the evidence of child pornography found
    on a computer used by him, on the ground that the search of the device was
    unreasonably invasive, and therefore amounted to an unreasonable search
    contrary to s. 8 of the
Canadian
Charter of Rights and Freedoms
.

[2]

As to sentence, he submits that the six-month
    mandatory minimum sentence for possession of child pornography in force at the
    time of his offences
[1]
violates s. 12 of the
Charter
, and that in any event the ten-month sentence of imprisonment (less
    60 days credit for time spent on house arrest) imposed by the trial judge was
    unfit with or without the mandatory minimum.

Background

[3]

In April 2014, Detective Constable Spence of the
    Halton Regional Police Internet Child Exploitation Unit learned that an
    Internet Protocol (IP) address in Halton was associated with 174 files
    believed to contain child pornography. Spence determined from the hash values
    of the 174 files that 7 of the files were videos containing child pornography. A
    hash value is a unique identification number assigned to a file that functions
    like a fingerprint for a file. Police maintain a database of the hash values of
    known child pornography. The other 167 files had names typically associated
    with child pornography.

[4]

Spence asked the internet service provider for
    the name and address of the subscriber assigned to the IP address. He learned
    that the subscriber was the appellants father and that the municipal address was
    for a residence in Oakville. The appellant lived in this home as well as his
    sister.

[5]

Spence applied for a warrant to search the
    residence and any computer system found in the home. He indicated in the
    Information to Obtain a Search Warrant that police would try to minimize the
    scope of the computer search. Specifically, with respect to the scope of the
    proposed search, he stated:

The computer forensic examination will be
    conducted by the qualified technicians of the Halton Police Technological Crimes
    Unit. The examination involves the creation of a complete mirror image of the
    data stored on the devices. I know from my training and experience that this
    type of examination can take several weeks to complete.

Attempts will be made to focus and minimize
    the scope of the forensic examination for the above described data. However,
    for several reasons, a thorough examination of the entire data contained in the
    items will need to be undertaken to locate the sought data.

Firstly, computer searches need to be
    relatively broad in order to cope with the practical realities of an
    ever-changing and developing age of technology. Analysts must be able to adapt
    their investigation to the systems they discover. New or unanticipated
    techniques may be required to respond to new technological challenges.
    Ultimately, it is not feasible to envisage every type of data that would fall
    under the specified categories.

[Secondly], computer files can be disguised in
    any number of ingenious ways, the simplest of which is to give files a misleading
    name (pesto.recipe in lieu of blackmail.photos) or a false extension (.doc in
    lieu of .jpg or .gz); therefore, files names alone are not necessarily
    indicative of their content. Accordingly, an expansive search of the entire
    data content of the items will need to be undertaken to locate the relevant
    data.

It is intended that the forensic analysis will
    include:

·

on-site previewing of the data contained in
    located devices

·

removal of found devices to a forensically
    secure facility for subsequent examination

·

imaging / mirroring of the entire contents of
    the devices for the preservation of data integrity

·

broad previewing of seemingly irrelevant data
    for the purpose of locating relevant data[.]

[6]

The search warrant was issued on May 21, 2014
    and contained the following terms:

Once seized, [computer systems and data
    storage devices] will undergo a computer forensic examination. The examination
    and analysis will be based on the offences set out in this warrant and will [be]
    conducted in relation to the following data:

·

Data relating to child pornography [footnote
    omitted] as defined by the
Criminal Code
.

·

Data relating to the Gnutella 2 Peer to Peer
    Network.

·

Data relating to use, ownership and access of
    the seized items.

·

Data relating to the configuration of the seized
    items.

[7]

Police executed the warrant the next day. They
    found a computer in the appellants bedroom. Detective Constable Mazzuto, an
    officer with technical expertise, conducted an on-site preview of that
    computer. He found files with titles associated with child pornography, but he
    did not view any actual pictures or videos of child pornography during the
    course of his preliminary review. Mazzuto also found evidence of a peer-to-peer
    file sharing program, although it had been deleted. The police seized the
    computer.

[8]

Several months later, police conducted a more extensive
    examination of the seized computer. Mazzuto began the process by copying all of
    the data on the computers hard drive. He then conducted a pre-categorization
    of all the images and videos that were on the hard drive and identified files
    bearing the hash values of known child pornography. He provided the results of
    this pre-categorization to Spence.

[9]

Spence examined the pre-categorized files and
    determined that there were 50 unique images of child pornography on the appellants
    computer.

[10]

The appellant takes no objection to this step,
    but says the next steps taken by the officer went too far.

[11]

First, Spence systematically examined every
    image and video located on the hard drive. He ultimately found 89 unique videos
    containing child pornography. Forty-nine of these videos were found in the
    incomplete download folder of the peer-to-peer file sharing program the
    appellant was using. Spence testified that he could not have narrowed his
    search by searching by hash values alone, because if even one pixel in an image
    had been changed, the hash value would be different. According to his sworn
    statement in the ITO, he could not have relied on file names because a title
    given to a file by a user might not be reflective of the content of the file.

[12]

Second, Spence reviewed the computers internet
    search history. It demonstrated that the user was searching for child
    pornography. The fact that the appellants email account was accessed relatively
    close in time to when files with names suggestive of child pornography were opened
    suggested that the appellant was the person searching for and viewing the child
    pornography.

[13]

In the course of his review of each image and
    video on the computer, as well as the computers internet search history,
    Spence learned of information about the appellant that was unrelated to child
    pornography, such as his interest in computer games and in Star Trek. However, Spence
    did not look at documents or other personal information unconnected to his
    search for images and videos of child pornography and his attempts to identify
    the person responsible.

[14]

Spence ultimately determined that there were 50
    unique images and 89 unique videos amounting to child pornography stored on the
    appellants computer.

The Trial Judges Decision

[15]

At trial, the Crown acknowledged that the
    warrantless request for subscriber information was a
Charter
breach.
    The request for that information was made six weeks before the Supreme Court of
    Canada released its decision in
R. v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212,
holding that there is a reasonable expectation of privacy in this information. In
    these circumstances, the trial judge found this breach to be less serious and determined
    that it did not require the exclusion of evidence.

[16]

The trial judge rejected the appellants
    argument that the manner in which police searched his computer was
    unreasonable. She adopted the test described by Cromwell J. in
R. v. Vu
,
    2013 SCC 60, [2013] 3 S.C.R. 657, at para. 22, that a reasonable search is no
    more intrusive than is reasonably necessary to achieve its objectives and
    concluded that she was not satisfied that police would or should have had the
    ability to narrow the scope of their search of the computer in this case.

[17]

The appellant submits that the trial judge
    conflated the difficulty of imposing pre-search protocols with an after the
    fact assessment of whether the search was unreasonably conducted. A search may
    still be conducted in an unreasonable manner even if authorized by a search
    warrant.

[18]

The appellant points to paras. 72 and 73 of the
    trial judges reasons to support this argument:

But, the Supreme Court of Canada has
    recognized that it is very difficult to impose effective limits, in advance, on
    the search of a computer. As Cromwell J. stated at para. 57 of
Vu
, at
    the point at which police are seeking a warrant and the issuing justice is
    considering imposing parameters on the search to be conducted,

57 an authorizing justice is
    unlikely to be able to predict, in advance, the kinds of investigative
    techniques that police can and should employ in a given search or foresee the
    challenges that will present themselves once police begin their search. In
    particular, the ease with which individuals can hide documents on a computer
    will often make it difficult to predict where police will need to look to find
    the evidence they are searching for. For example, an authorizing justices
    decision to limit a search for child pornography to image files may cause
    police to miss child pornography that is stored as a picture in a
Word
document. In short, attempts to impose search protocols during the
    authorization process risk creating blind spots in an investigation,
    undermining the legitimate goals of law enforcement that are recognized in the
    pre-authorization process. These problems are magnified by rapid and constant
    technological change.

In my view, this was a case in which it was
    appropriate not to place limits on the scope of the police search for evidence
    of the offences. The ITO explained the very broad search that was to be
    conducted and the police were authorized to do this. There is no evidence
    before me that the police would or should have had the ability to narrow the
    scope of their search of the computer in this case.

Analysis

[19]

The trial judge discussed both advance
    restrictions on computer searches and the reasonableness of the manner of
    search. Reading her reasons as a whole, I interpret her reasons as a conclusion
    that the manner of search here was reasonable. I agree with that conclusion.

[20]

Where a user has some child pornography on his
    or her computer, identified by the search methods used initially by police
    here, it is not unreasonable to look at the other image and video files on the
    computer to see if there is more child pornography there. Searching by hash
    value would only uncover known examples of child pornography already in the
    police database and would also miss any of those known examples if the hash
    value had been changed in any way, whether intentionally or not. A search that relied
    on the name attached to a file might not uncover further child pornography
    files as a user could attach any name he or she wished to an image or video or
    folder and that name might not be indicative of its content.

[21]

Given this context, it was reasonable for police
    to look at all image and video files when they were looking for images and
    videos of child pornography. It was also reasonable for them to examine the
    internet search history and the dates and times of access to the appellants internet
    accounts to identify the person searching for child pornography. Here, in
    addition to the appellant, three other persons were potential users of the
    computer, namely the appellants father (the owner of the home and the
    subscriber assigned to the IP address), his sister (who had a user profile on
    the computer) and his sisters boyfriend (who visited the home).

[22]

Moreover, there is no evidence that the police
    looked at documents, banking records or other programs or files unrelated to
    the search for child pornography and the identity of the person in possession
    of that material. The search was appropriately tailored to the type of evidence
    being sought and the offences being alleged.

[23]

As this court noted in
R. v. Jones
,
    2011 ONCA 632, 107 O.R. (3d) 241, at paras. 43-44:

The focus on the type of evidence being
    sought, as opposed to the type of files that may be examined is helpful, it
    seems to me, particularly in cases where it may be necessary for the police to
    do a wide-ranging inspection of the contents of the computer in order to ensure
    that evidence has not been concealed or its resting place in the bowels of the
    computer cleverly camouflaged.

To the extent they are required to examine any
    file or folder on the computer to reasonably accomplish that authorized search,
    the police are entitled to open those files and folders and to examine them, at
    least in a cursory fashion, in order to determine whether they are likely to
    contain evidence of the type they are seeking. [Citations omitted].

[24]

I do not accept the argument that there must be
    prior evidence of concealment of incriminating evidence before police can look
    at all images and videos stored on a computer in this kind of investigation
    where some child pornography has been located on the computer on initial
    examination. Rather, a search of all images and videos is appropriate in an
    investigation like this precisely to determine whether there is more child
    pornography on the computer. To limit police to searches by hash values, file
    names and download folders would be to provide a roadmap for concealment of
    files containing child pornography.

[25]

I also do not accept the argument that the
    search was overbroad because it was not tailored to a date range in terms of
    the files searched. Here the police were looking for images and videos of child
    pornography and evidence that might show who was responsible for that content.
    This was not a broad search of multiple devices or large amounts of data unrelated
    to the specific investigation, such as in
R. v. Sop
, 2014 ONSC 4610,
    at paras.116-149, or
R. v. Marek
,

2016 ABQB 18, at paras.
    120-147.

[26]

Finally, I reject the argument that the search
    of all images and videos here was overly invasive because the vast majority of
    the offending material would have been located using a combination of hash
    value comparison, keyword searching of file name, and searching the file
    folders most likely to contain child pornography. This argument fails because
    it uses the ultimate results or fruits of the search to dictate whether the
    scope of the search was reasonable. Given the limitations of searching only by
    hash value or file or folder name discussed above, hindsight should not be used
    in this way to turn what was once a reasonable search in all the circumstances
    into an unreasonable one.

[27]

The appellant does not argue that the evidence
    should be excluded based on the
Spencer
breach alone. I agree with the
    trial judges conclusion that that breach does not justify exclusion of the
    fruits of the search of the computer under s. 24(2) of the
Charter
.

Mandatory Minimum Sentence

[28]

I need not repeat the analytical framework I summarized
    in
R. v. Morrison
, 2017 ONCA 582, 136 O.R. (3d) 545, at para. 115, leave
    to appeal granted, [2017] S.C.C.A. No. 290, appeal heard and reserved May 24,
    2018,

for determining whether a mandatory minimum sentence violates s.
    12 of the
Charter
.

[29]

The appellant does not argue that the mandatory
    minimum sentence would be grossly disproportionate if applied to him, but
    argues that application of the mandatory minimum leads to grossly
    disproportionate sentences when applied to reasonable hypothetical situations like
    the following:

1)

An 18-year-old who receives and keeps a sext from his 17-year-old
    girlfriend on his phone. The sext is a selfie of the girlfriend.

2)

An 18-year-old who receives a sext from his 17-year-old boyfriend.
    The sext is a 30-second video the 17-year-old secretly recorded of the pair
    engaged in consensual sexual activity.

3)

An 18-year-old whose friend forwards him a sext from the friends
    17-year-old girlfriend without her knowledge. The 18-year-old doesnt forward
    the sext but keeps it on his phone.

[30]

The appellant defines sext as a sexually
    suggestive digital image, video or text message transmitted by cell phone or
    the internet.

[31]

The appellant submits that these are not
    far-fetched or remote hypothetical examples given the pervasiveness of
    sexting among adolescents.

[32]

The appellant points out that it is illogical for
    the law to recognize a 17-year-olds choice to have sexual relations with an 18-year-old
    partner, and to record images of him  or herself for his or her own personal use,
    but to then impose a mandatory six-month jail sentence on the 18-year-old
    partner for possessing the same images sent to him or her by the 17-year-old.
    Equally, the appellant submits that to send an 18-year-old to jail for six
    months for failing to delete a sexually suggestive, unsolicited image on his
    cell phone of a friends 17-year-old girlfriend would be grossly
    disproportionate.

[33]

The Crown does not take issue with the
    reasonableness of the hypotheticals advanced by the appellant. The Crown submits
    in its factum that the three hypotheticals posited by the appellant come
    remarkably close to falling within the exceptions carved out in
Sharpe
for self-expression but does not suggest that the conduct embodied in the
    hypotheticals advanced would not attract criminal liability.   The Crown submits
    that the application of the mandatory minimum to these hypothetical offenders is
    not so excessive as to outrage standards of decency or to be intolerable or
    abhorrent to society.

[34]

In
R. v. Sharpe
,

2001 SCC 2,
    [2001] 1 S.C.R. 45, at para. 105, McLachlin C.J. for the majority of the court
    held that the criminal prohibitions on possession of child pornography went too
    far by criminalizing possession of materials that arguably posed little or no
    risk to children, and in a manner that seriously affected freedom of
    expression. The majority granted a remedy by reading in an exception to the
    prohibition for the following:

1.
Self-created
    expressive material
: i.e., any written material or visual representation
    created by the accused alone, and held by the accused alone, exclusively for
    his or her own personal use; and

2.
Private recordings of
    lawful sexual activity
: i.e., any visual recording, created by or
    depicting the accused, provided it does not depict unlawful sexual activity and
    is held by the accused exclusively for private use (para. 115).

[35]

None of the hypotheticals advanced by the
    appellant would fall within the first exception, as none of these involve
    materials created by the accused alone, and held by him or her alone.

[36]

The majority in
Sharpe
described the
    second exception (the private use exception) as follows, at para. 116:

The second category would protect
    auto-depictions, such as photographs taken by a child or adolescent of him- or
    herself alone, kept in strict privacy and intended for personal use only. It
    would also extend to protect the recording of lawful sexual activity, provided
    certain conditions were met. The person possessing the recording must have
    personally recorded or participated in the sexual activity in question. That
    activity must not be unlawful, thus ensuring the consent of all parties, and
    precluding the exploitation or abuse of children. All parties must also have
    consented to the creation of the record. The recording must be kept in strict
    privacy by the person in possession, and intended exclusively for private use
    by the creator and the persons depicted therein. Thus, for example, a teenage
    couple would not fall within the laws purview for creating and keeping
    sexually explicit pictures featuring each other alone, or together engaged in
    lawful sexual activity, provided these pictures were created together and
    shared only with one another.

[37]

It may be arguable whether the conduct described
    in the first two reasonable hypotheticals comes within the private use
    exception. For example, in the first hypothetical, the exception would have
    applied had the 18-year-old taken the photo that formed the sext. Instead, it
    was a selfie.
[2]

In the second
    hypothetical, the exception would have applied had the 18-year-old consented to
    being recorded. Instead, he was a victim of the surreptitious recording.

[38]

For purposes of my analysis here, I need not
    definitively decide whether the first and second hypotheticals fall within the
    private use exception or whether they are instead on the fringes of criminal
    responsibility. It is clear that the private use exception cannot apply to the
    third hypothetical (18-year-old who fails to delete a sext from a friends
    17-year-old girlfriend that was sent to him without her knowledge).

[39]

I am of the view that the application of the
    mandatory minimum sentence to the offender in the third hypothetical is grossly
    disproportionate. Most members of the community would consider a six-month jail
    sentence a substantial interference with individual liberty and would find it
    intolerable that such a punishment could be applied to this behaviour,
    especially given the number of images/videos involved (one single image), the
    nature of the image in question (lawfully self-created), the manner of
    acquisition (passive recipient) and the nature of the offender (young adult).

[40]

Accordingly, I am of the view that the mandatory
    minimum sentence is grossly disproportionate at least in relation to the
    offender in the third reasonable hypothetical, violates s. 12 of the
Charter
,
    and must therefore be struck down. The Crown acknowledges that the
Charter
violation cannot be saved by s. 1 of the
Charter
.

[41]

The mandatory minimum is entirely unnecessary.
    This court has recently emphasized the importance of denunciation and
    deterrence for any offence involving abuse of a child, and that those
    principles are the primary principles of sentencing applicable for such
    offences involving child pornography:
R. v. Inksetter
, 2018 ONCA 474,
    at para. 16. In another recent decision,
R. v. J.S.
, 2018 ONCA 675,
    this court upheld a sentence of 18 years for sexual abuse of young children,
    making child pornography depicting that abuse, and distribution of that
    material.

Sentence Appeal

[42]

The appellant was sentenced to 10 months jail
    less 60 days credit to reflect conditions of house arrest. He spent an
    additional 24 days in custody before being released on bail pending appeal.

[43]

The appellant submits that the trial judge is
    owed no deference if the mandatory minimum is struck down, arguing that the
    mandatory minimum created an inflationary effect on the sentence. The appellant
    submits that a 90-day sentence would be appropriate, and asks this court to
    substitute a sentence of time served.

[44]

The appellant was 29 years old at the time of
    the offence and 31 years old at the time of sentencing. He has suffered from
    serious mental health problems for which he was inadequately treated. At times
    he was suicidal. He has pursued a course of psychotherapy with a view to dealing
    with his problems. The appellant is employed and is continuing counselling. He
    is remorseful, and no risk factors have been identified requiring further
    treatment.

[45]

Despite these mitigating factors, the size and
    nature of the appellants collection is a seriously aggravating factor. The
    appellant had possession of 89 unique videos and 50 unique images of child
    pornography. He actively sought out these images and videos. His collection included
    images of children as young as four years old, and some perhaps as young as two
    or three years old, subjected to anal and vaginal penetration with sex toys and
    adult penises. This is terrible abuse of young children. In
R. v. Lynch-Staunton
,
    2012 ONSC 218, at para. 57, Ratushny J. pointed out that:

[i]t is to be understood by those trolling the
    Internet for child pornography that these pictures are acts of violence against
    children, that viewing and possessing them perpetuates the original violence,
    that viewing and possessing them encourages new child victims, and that as a
    consequence, jail terms will result.

[46]

But for the appellants very considerable
    efforts at rehabilitation, the sentence imposed could have been much higher.

[47]

The sentence imposed was fit and proportionate
    to the gravity of the offence and the degree of responsibility of the offender
    without regard to the mandatory minimum. I would dismiss the appeal from
    sentence.

Disposition

[48]

I would dismiss the appeal from conviction,
    grant leave to appeal from sentence, declare that the mandatory six-month
    minimum sentence under s. 163.1(4)(a) of the
Criminal Code
, in force
    from August 9, 2012 to July 16, 2015, is of no force and effect, but dismiss
    the appeal from sentence.

G. Pardu J.A.

I agree David Watt
    J.A.

I agree L.B. Roberts
    J.A.

Released: September 4, 2018





[1]

On July 17, 2015, the mandatory minimum sentence for these
    offences was increased to one year in jail:
Tougher Penalties for Child
    Predators Act
, S.C. 2015, c. 23, s. 7(2).



[2]
I pause here to note that a trial court in another province has concluded that,
    when interpreted purposively, the private use exception should apply to the A
    records A for B scenario: see
R. v. Keough
, 2011 ABQB 48, at paras.
    273-77.


