



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reeves, 2017 ONCA 365

DATE: 20170505

DOCKET: C61510

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Thomas Reeves

Respondent

Michelle Campbell, for the appellant

Brad Greenshields, for the respondent

Heard: November 24, 2016

On appeal from the acquittal entered by Justice André L.
    Guay of the Ontario Court of Justice, dated November 30, 2015.

H.S. LaForme J.A.:

INTRODUCTION

[1]

This case arose from the seizure of a family computer from the home
    co-owned by the respondent, Thomas Reeves and his common-law spouse, Nicole
    Gravelle. The seizure was warrantless; the police retained the computer for
    four months without searching it, then obtained a warrant to search it and
    found child pornography on it.

[2]

At the time of the seizure Reeves was subject to a court order that
    required him to stay away from the home unless he had Nicoles consent. Nicole
    revoked that consent in the same phone call to Reeves parole officer in which
    she alleged that Reeves had child pornography on the computer. On the same day
    a police officer visited her residence where she signed a consent form for him
    to seize the computer.

[3]

Reeves succeeded on a pre-trial
Charter
application in which he
    claimed the police had violated his right under s. 8 of the
Charter
against
    unreasonable search or seizure. The application judge determined that the
    police had violated Reeves right and, under s. 24(2), excluded all evidence
    from the computer.

[4]

The application judges exclusion of the evidence, the Crown says,
    gutted its case and resulted in an acquittal. The Crown appeals from the
    resulting acquittal.

[5]

For the reasons that follow, I would allow the appeal. While I would not
    interfere with most of the application judges conclusions regarding breaches
    of s. 8, the application judge erred in one part of his s. 8 analysis, and this
    error had implications for the s. 24(2) analysis. Conducting the s. 24(2) analysis
    afresh, I would, unlike the application judge, admit the evidence.
    Consequently, a new trial for Reeves must be ordered.

BACKGROUND

[6]

Reeves had shared a home with his common-law spouse of 20 years, Nicole,
    and their two daughters. Reeves and Nicole had lived in this home for 10 years;
    Reeves contributed to the mortgage payments, and Nicole and Reeves were joint
    titleholders.

[7]

On June 2, 2011, there had been an altercation involving Reeves,
    Nicole, and Nicoles sister, Natalie. The police charged Reeves with domestic
    assault. On October 22, 2012, the date of the computers seizure, Reeves was in
    custody and subject to a no contact order with respect to both Nicole and
    Natalie. The court order allowed Reeves to visit the home only if Nicole
    provided her prior, written and revocable consent.

[8]

Nicole had consented to visits by Reeves for some time, but, on October
    22, 2012, she contacted Reeves parole officer in order to withdraw her
    consent. According to the parole officer, Nicole initially said that her
    reasons for withdrawing consent were that Reeves was abusing alcohol,
    emotionally abusing her, and seeing other women. However, during this
    conversation, Nicole also reported that she and Natalie had accessed the
    familys computer and, according to the parole officer, Nicole raised the
    concern that there were multiple videos on the computer that she believed to be
    of a nature of containing child pornography. Nicole also said, without
    providing a date, that Reeves brother had visited the home and attempted to
    delete some of the videos.

[9]

Shortly after, Natalie called the parole officer and confirmed that she
    had witnessed videos on the computer that obviously involved children that she
    believed were pornographic. Natalie reported that the title of one of the
    videos was 11 and 12 year-old doing daddy.

[10]

Nicole admitted in her examination-in-chief that she had not seen any
    pornographic images; she merely had seen titles, of which one was 13 on 13.
    Additionally, she confirmed that she and her sister discovered the evidence
    sometime in 2011, long before the date of the seizure. Natalie claimed to have
    reported the evidence to the police in May 2011, but the police did not
    respond.

[11]

The parole officer then notified the Crown Attorneys Office of the allegations.
    The Crown Attorneys Office in turn notified the Greater Sudbury Police.
    Constable Santi arrived at Nicoles home later that day, without a warrant.
    Nicole allowed Cst. Santi to enter the residence and signed a consent form
    authorizing the seizure of the computer.

[12]

The police retained the computer without a warrant until February 26,
    2013  more than four months. They did not search the computer during
    intervening time. They obtained a warrant on February 26 and executed it on
    February 28, but neglected to file a report on the computer to a justice, as s.
    489.1(1) of the
Criminal Code
requires, until March 15, 2013.

[13]

On March 15, 2013, the police sought and successfully obtained a warrant
    to re-seize the computer and search it, as well as an order of detention under
    s. 489 of the
Criminal Code
.
When they
    finally searched the computer, the police discovered 140 images of child
    pornography and 22 videos of child pornography.

[14]

Reeves was subsequently charged with possessing child pornography and
    accessing child pornography. As noted, Reeves succeeded on a pre-trial s. 8
Charter
application. The Crown appeals the application judges decision.

THE APPLICATION JUDGES REASONS

[15]

The application judge identified three grounds, which he summarized at
    para. 40 of his reasons, for holding that the police had violated Reeves right
    against unreasonable search or seizure. First, Cst. Santi violated Reeves s. 8
    right through a warrantless search and seizure of the computer from the home
    that Reeves had shared with Nicole. There were no exigent circumstances
    sufficient to justify his actions. Second, by retaining the computer for four
    months without reporting the seizure to a justice, the police failed to comply
    with ss. 489.1 and 490 of the
Criminal Code
. Third, the information to
    obtain relied upon to secure a warrant to search the computer was insufficient.
    Therefore, the issuing justice should have denied the warrant application
.

(i)      The Warrantless Retrieval of the Computer and
    Consent

[16]

The application judge began his s. 8 analysis by citing
R. v.
    Collins
, [1987] 1 S.C.R. 265 and
R. v. Cole
, 2012 SCC 53, [2012]
    3 S.C.R. 34 for the Crowns burden. That is, in the case of a warrantless
    search, once the accused establishes a reasonable expectation of privacy (REP),
    the Crown must prove the impugned search or seizure was authorized by law, the
    authorizing law itself was reasonable, and the search was carried out
    reasonably.

[17]

Although the application judge found Nicoles consent to the seizure was
    valid, he found that Cst. Santi should have been aware, or made himself aware,
    of Reeves absence from the home. Furthermore, he found the officer did not
    have and knew, or ought to have known, he did not have Reeves consent to enter
    the private residence and remove the home computer shared by Reeves with Nicole
    and their two teenage daughters.

[18]

Crucially, the application judge dismissed the Crowns argument to treat
    Cst. Santis retrieval of the computer as a consent case. The application
    judge interpreted the Crowns theory to be that Nicole consented on behalf of
    Reeves, and relying on
Cole
, at paras. 77  79, he held that a third
    party cannot validly consent to a search or otherwise waive a constitutional
    protection on behalf of another.

[19]

The Crown argued that, in seizing the computer, the police acted on the
    honest, but mistaken, belief that Nicoles consent alone could authorize the
    seizure. At para. 20, the application judge rejected this argument because,
    given its resources and expertise, the Sudbury police should have known that
    in matters of search and seizure of property in which there is a reasonable
    expectation of privacy, consent is mandatory and cannot be given by third
    parties.

(ii)     Analysis Under the Criminal Code ss. 489.1 and 490

[20]

The application judge noted that s. 489.1 of the
Criminal Code
requires the police officer who seized the property to make a Report to a
    justice as soon as practicable about the seizure. Section 490(1) then
    requires approval of a justice for retention of the seized property beyond
    three months. Here, the police kept the computer for more than four months
    without authorization from a justice.

[21]

The application judge cited this courts recent decision in
R. v.
    Garcia-Machado
, 2015 ONCA 569, 126 O.R. (3d) 737, at para. 46, for holding
    that retention of seized property in breach of s. 489.1(1) is not authorized
    by law for purposes of the seizures reasonableness according to
Collins
.
    This also supported a violation s. 8 of the
Charter
.

(iii)    The Information to Obtain the Search Warrant

[22]

The application judge began this analysis by noting that one should
    presume a search warrant to be valid on its face; Reeves had the burden to
    prove otherwise. He explained that a justice of the peace had issued a search
    warrant with respect to the Reeves-Gravelle computer approximately four months
    after the police obtained the computer from their home.

[23]

While not endorsing all of Reeves criticisms of the information to
    obtain (the ITO), the application judge, at para. 38, agreed that the
    affidavit in support was a goal-oriented, selective presentation of the facts
    that provided an unfair, unbalanced and misleading portrayal of Reeves. This,
    he concluded, deprived the justice of the peace of the information necessary to
    assess whether there were reasonable and probable grounds for searching the
    computer.

[24]

Additionally, the application judge criticized the ITO for not
    explaining why the police had retained the computer for four months from the
    date of seizure.

(iv)    The s. 24(2) Charter Analysis

[25]

The application judge began this section by reciting the correct factors
    from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.
    Although he recited his conclusions under each
Grant
factor at para.
    49 of his reasons, he did not clearly divide the substance of his analysis
    under those headings. His analysis relies mostly on
Garcia-Machado
,
    focusing on the reasons this court provided in that case for not excluding the
    evidence.

[26]

First, the application judge noted that, unlike in
Garcia-Machado
,
    the police did not obtain a warrant before the impugned seizure of the
    computer. Second, he restated his characterization of Reeves privacy interest:
    (i) Nicole and Reeves were joint owners of the computer; and, (ii) they
    protected it with a password that was available to each of them and
    presumably, with their consent, to their teenage daughters and those who might
    visit the home and ask to use the computer. He rejected Nicoles suggestion
    that anyone in the house had unrestricted access to the computer, finding
    instead that the computer was password protected, even if not strongly so.

[27]

Third, the application judge distinguished
Garcia-Machado
,
    where this court found, at para. 62, that the property seized was that
    specifically authorized by the warrant and that the property was used for the
    precise purpose for which it was obtained. In contrast, at para. 44, he found
    that Cst. Santi had an idea of what material he was looking for but, as the
    applicant argued, what the police were looking for was arguably not what had
    actually been reported to them nor was it likely to still be readily available
    within the computer.

[28]

Fourth, the application judge focused on the degree of deprivation that
    Reeves had suffered from the seizure of the computer. Unlike in
Garcia-Machado
,
    where the accused had not been deprived of the use or enjoyment of the items
    seized (blood samples and hospital records), he found at para. 46, that the
    computer was the kind of property of which Reeves would have wanted to make use
    in his private life 
with respect to the
    personal material he had in the computer
.

[29]

The application judges conclusions, at para. 49, on the first two
Grant
steps followed from the previous analysis in light of
Garcia-Marchado
.
    For the final step, he found that the alleged offences were serious in nature
    and strongly call for adjudication on the merits. However, in balancing the
Grant
factors, he concluded that exclusion of the evidence was necessary because of
    the polices flagrant disregard of Reeves s. 8
Charter
right and
    the ancillary rights in ss. 489.1 and 490 of the
Criminal Code
. He
    relied on
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras.
    108  111, in support of his conclusion, though he also noted, at para. 52,
    that the unconstitutional police conduct was largely not motivated by bad
    faith.

(v)     Disposition

[30]

The application judge granted Reeves application to exclude the
    evidence obtained as a result of the search and seizure of his home computer
    as well as any evidence derived from a forensic examination of that computer,
    its files and hard drive. And as already noted, an acquittal resulted.

THE ISSUES

[31]

The Crown raises the following three issues:

1.      Did
    the application judge misapply
R. v. Cole
, 2012 SCC 53, [2012] 3
    S.C.R. 34, resulting in his finding that the consent seizure of the computer
    violated s. 8 of the
Charter
?

2.       Did
    the application judge err by substituting his own view of the evidence for that
    of the Justice who issued the search warrant?

3.      Did
    the application judge err by excluding the evidence of child pornography
    pursuant to s. 24(2) of the
Charter
?

[32]

As I will detail below, I would allow the appeal. I find the application
    judge erred in his conclusion that Reeves s. 8
Charter
protection
    rights were violated when the police attended at the house and secured the
    computer. I do, however, agree with his finding that Reeves s. 8 rights were
    breached in connection with the search of the computer. Finally, based upon a
    fresh s. 24(2)
Charter
assessment, and contrary to the application
    judge, I would admit the evidence of child pornography at trial.

ANALYSIS

[33]

I begin my analysis with some basic principles.

[34]

First, the right to be secure against unreasonable search and seizure in
    s. 8 of the
Charter
protects more than a narrowly conceived right to
    privacy, in the sense of a general right to be let alone: see for example
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 12  16. From
Hunter
    v. Southam Inc.
,
[1984] 2 S.C.R. 145
onwards,
    the reasonableness inquiry in the search and seizure context has always
    focused on the proper limits placed on state power. The state may employ
    legitimate but limited investigative techniques that strike a proper balance
    between the rights of the individual and the needs of society:
R. v. Chehil
,
    [2013] 3 S.C.R. 220, 2013 SCC 49, at paras. 23  25. Where the state exercises such
    powers, there must be proper safeguards that permit potentially improper
    decisions to be scrutinized:
R. v. Tse
, [2012] 1 S.C.R. 531, 2012 SCC
    16, at paras. 82  85. And such limits on the exercise of state power
    ultimately foster underlying values of dignity, integrity and autonomy by
    protecting the ability of individuals to make important choices about their
    lives:
R. v. Plant
, [1993] 3 S.C.R. 281, at p. 293.

[35]

Second, it is well settled that privacy is a matter of reasonable
    expectations. An expectation of privacy will attract
Charter
protection
    if reasonable and informed people in the position of the accused would expect
    privacy:
R. v. Patrick
, 2009 SCC 17,
[2009] 1
    S.C.R. 579
, at paras. 14  15
. If the
    claimant has a reasonable expectation of privacy (REP), s. 8 is engaged, and
    the court must then determine whether the search or seizure was reasonable:
Cole
,
    at paras. 35  36.

[36]

Finally, where a search is carried out without a warrant, it is
    presumptively unreasonable:
R. v. Nolet
, 2010 SCC 24,
[2010] 1 S.C.R. 851
, at
    para. 21
;
Hunter v. Southam,
at p.
    161
. To establish reasonableness, the Crown must prove on the
    balance of probabilities that: (1) the search was authorized by law, (2) the
    authorizing law was itself reasonable, and (3) the authority to conduct the
    search was exercised in a reasonable manner:
Nolet
, at para. 21;
Collins
,
at p. 278
.

[37]

With this general statement of the law, I will now proceed to examine
    and discuss the issues.

(1)

Did the application judge misapply
R. v. Cole
, 2012 SCC 53,
    [2012] 3 S.C.R. 34, resulting in his finding that the consent search of the
    home and seizure of the computer violated s. 8 of the
Charter
?

[38]

The application judge found Nicole freely consented to the search and
    seizure. However, he concluded that a third party cannot validly consent to a
    search or otherwise waive a constitutional protection on behalf of another. In
    doing so he relied on
Cole
, at paras. 77  79.

[39]

The Crown submits the application judge erred in applying
Cole
to exclude the evidence on the basis that Nicole could not consent to the
    search of the family home or the seizure of the family computer.  Reeves
    disagrees, submitting the application judge got it right  Nicole was a third
    party, and could not consent on Reeves behalf.

[40]

I begin by setting out the law on consent searches, then consider
    Reeves privacy interest, and conclude by analyzing the validity of Nicoles
    consent.

(i)

The Law on Consent Searches for Joint Residents

[41]

The Supreme Court has described a valid consent as a waiver that
    immunizes a search or seizure from challenge under s. 8. Consequently, as
    Doherty J.A. held in
R. v. Wills
(1992), 7 O.R. (3d) 337 (C.A.), cited
    with approval in
R. v. Borden
, [1994] 3 S.C.R. 145, at p. 162, the force
    of consent must be commensurate with the significant effect it produces. Given
    the significant effect of such a waiver for the person whose rights are at play,
    it must clearly be shown that consent was fully informed, and voluntary:
Borden
, at p. 162.

[42]

Consent must also come from the right person. The person who consents
    must be the person whose rights are engaged. Someone else cannot waive your s.
    8 rights for you. This is what the Supreme Court decided in
Cole
, at
    paras. 74  79, when it rejected the doctrine of third party consent in the
    context of employer-provided computers.

[43]

That said, in the context of joint residence or joint home ownership,
    the law of consent to search and seizure is not entirely settled. The Crown
    submits that where two or more people have an equal and overlapping privacy
    interest in a residence, any of the co-habitants can validly consent, and the
    police need not seek the consent of each co-habitant. In support of this
    submission the Crown relies on trial level authorities, as well as
R. v.
    Squires
, 2005 NLCA 51, [2005] N.J. No. 253, at para. 34, leave to appeal
    dismissed [2005] S.C.C.A. No. 561 and
R. v. R.M.J.T.,
2014 MBCA 36,
    [2014] M.J. No. 115, at paras. 51  52. The weight of the trial court
    jurisprudence suggests a contextual test  a co-resident can usually consent to
    a search of the common areas, but not the private areas of another resident,
    such as his or her bedroom or dresser

[44]

The Crown submits
Cole
does not change the law with
    respect to spousal or co-habitant consent searches and seizures where equal and
    overlapping privacy rights are involved. As the Manitoba Court of Appeal
    expressed it in
R.M.J.T.
, at para. 51:

Had the Supreme Court of Canada in
Cole
intended to
    diminish the developing law respecting consent to enter a dwelling house, in my
    view, it would have said so in clearer terms  It did not do so because that was
    not the issue before it.

[45]

For his part, Reeves rejects that one resident can consent to a search
    or seizure on behalf of all residents who have equal and overlapping privacy
    interests. He says such a holding is inconsistent with
Cole.
The
    court, he says, should not be drawn into an 
ex post facto
metaphysical analysis of who has a superior or unique privacy interest in the
    subject matter of the search. The privacy interest of one resident does not
    neuter the privacy interest of another, nor does a common law property right to
    allow entry confer the constitutional power to waive the s. 8 right of another.

[46]

In my view, the dispute between the Crown and Reeves on this issue
    misses the point. In the case of joint residents, the question is not whether
    one resident can waive the constitutional rights of another. Of course they
    cannot. Rather, the question is what, if any, impact the fact of joint
    residency has on ones expectations of privacy, assessed in the totality of
    circumstances.

[47]

In
Search and Seizure Law in Canada
(loose-leaf), vol. I
    (Toronto: Thomson Reuters, 2016), Hutchison et al write, at 7  12.7 to 15,

[i]n order to determine who may consent to a search, the
    guiding principle must be the reasonable expectation of privacy referred to
    by the Supreme Court in
Hunter v. Southam Inc.
If an individual would
    not reasonably expect another person to be able to authorize a search, then
    that person cannot consent to a search.

Thus, the authors point out, a parent of a suspect may
    ordinarily consent to searches of areas of the familial home where the suspect
    does not expect restrictions on the access of others to those spaces; by
    contrast, a co-resident in an apartment may not be able to consent to a search
    of private areas of the other co-resident to which they are not ordinarily
    expected to have access. For similar reasons of reasonable expectation, the
    court held in
R. v. Wong,
[1990] 3 S.C.R. 36 that the fact a hotel
    maid has access to ones room does not necessarily give the hotel the right to
    consent to a police search of the room. Likewise, the employer could not
    consent to a search of the laptop in
Cole
.

[48]

At a high level of generality, the fact of co-residency is clearly
    relevant to reasonable expectation of privacy. Descriptively, a co-resident knows
    from the outset that the other co-resident has the right to invite others into
    shared spaces. Further, normatively, it would not be reasonable for one
    resident to expect that the other co-resident could never invite an agent of
    the state into the residence. In fact, one could reasonably expect that the
    other might have a legitimate interest in consenting to entry by law
    enforcement into common spaces from time to time. Of course, by the same token,
    one would not reasonably expect police entry without the consent of another
    co-resident.  And certainly the facts and circumstances of the case  including
    the nature of living arrangements  will shape the reasonable expectations of
    co-residents.

[49]

In other words, in the co-residency context, consent by a co-resident
    other than the accused is not relevant as a form of waiver. Rather, it is
    relevant as part of determining whether the police have intruded upon a
    reasonable expectation of privacy held by the accused.

[50]

Therefore, in my view, the inquiry is two-staged: (a) would the accused
    reasonably expect that his or her co-resident would have the power to consent
    to police entry into a common space, and (b) if so, did the co-resident
    actually consent? Of course, the specific facts and circumstances will drive
    the answer to both of those questions.

[51]

Before moving on, two final notes about consent. First, an accused does
    not reasonably expect the police to be able to enter without the valid,
    voluntary and informed consent of a co-resident. Nor does an accused reasonably
    expect police to go beyond the scope of consent provided by the co-resident in
    entering the space. Where the police do so without justification, the accuseds
    reasonable expectation of privacy will be violated.

[52]

Second, in my view, the analysis I have described also applies with
    respect to consent to seizure of jointly owned property within a shared
    residence, though different circumstances may call for a different analytical
    approach, and discrete issues of seizure may raise different questions of reasonable
    expectation. As will become clear below, on the facts of this case the
    expectations of privacy relevant to seizure of the computer and the entry into
    the shared spaces of the home are intertwined and must be analyzed together.

[53]

With those principles in mind, I turn first to assessing Reeves
    expectation of privacy in the totality of the circumstances.

(ii)

The Extent of Reeves Expectation of Privacy

[54]

In assessing Reeves expectation of privacy, I begin with two comments
    regarding computer searches and seizures. First, it is difficult to imagine a
    search more intrusive, extensive, or invasive of ones privacy than the search
    and seizure of a personal computer:
Morelli
, at para. 105.
Second,
computer searches involve unique
    privacy interests that are often not captured by traditional analyses that
    apply to ordinary physical objects or places:
R. v. Vu
, 2013 SCC 60,
    [2013] 3 S.C.R. 657, at para. 1  2.

[55]

The search of computers implicates important privacy interests which are
    different in both nature and extent from the search of other places.
    Computers may generate information about intimate details of the users
    interests, habits and identity without the knowledge or intent of the user.
    They may retain information even after the user thinks that it has been
    destroyed. Thus, the nature of the privacy interest in a computer is
    qualitatively and quantitatively different from many ordinary physical objects
    or places used to store information:
Vu
, at paras. 38 and 41  47.

[56]

Importantly, however, the court in
Vu
also held that, while s.
    8 requires specific, prior authorization for police to
search
a
    computer, police officers may
seize
a computer without a warrant while
    engaged in a legally-valid search of the place in which they find the computer:
Vu
, at paras. 3 and 49.

[57]

These recent pronouncements by the Supreme Court inform the analysis
    that follows, especially the proper characterization of Reeves expectation of
    privacy. They provide context to the specific circumstances of this case.

[58]

The facts in this case

raise two separate instances of search
    and seizure and whether or not they engaged a s. 8
Charter
interest.
    The first is the warrantless search of the jointly-owned home and the seizure

of a jointly-owned computer. The second is the authorized search of the
    computer and the seizure of its stored information and data said to belong to
    Reeves. At this stage, we are concerned only with the former.

[59]

Section 8 of the
Charter
only
    protects a reasonable expectation of privacy and there are varying degrees of
    privacy. The higher the expectation of privacy, the greater the claim to
    constitutional shelter:
R. v. Tessling
, 2004 SCC 67,

[2004] 3 S.C.R. 432,
at paras. 19  21
.  In the circumstances of
    this case, Reeves expectation of privacy in the shared spaces of the family
    home and in the family computer was greatly diminished.

[60]

As a consequence of the domestic altercation, Reeves could not access
    the home except with Nicoles permission. At the time of Cst. Santis visit,
    this status had persisted for over a year. O
n
    the same day as
Cst. Santis visit,
Nicole
    had revoked her consent in a phone call to Reevess parole officer.
    Furthermore, Reeves had been arrested the day before and was still in custody.
    Thus, although Reeves remained the joint-owner of the home, he had a diminished
    REP in it: see
R. v. Edwards
,
    [1996] 1 S.C.R. 128.
His REP at the
    relevant time was minimal.

[61]

As for Reeves REP in the computer, as Karakatsanis J. wrote
    (dissenting) in
R. v. Fearon
, 2014 SCC 77, [2014] S.C.R. 621, at para.
    155, it is the information that attracts a heightened expectation of privacy.
    Seizing the computer did not interfere with Reeves heightened expectation of
    privacy in its informational content; it did not imperil any of his legitimate
    interests, beyond mere property rights. As the Supreme Court held in
Quebec
    (Attorney General) v. Laroche
, 2002 SCC 72, [2002] 3 S.C.R. 708, at para.
    52, s. 8 does not permit an individual to challenge mere restrictions on the
    exercise of property rights.

[62]

In sum, on the facts of this case, whatever interest Reeves retained in
    the home and the physical object of the computer were severely diminished.
    Indeed, in light of the history and legal status between them, it would have
    been within Reeves reasonable expectations that Nicole might have a legitimate
    interest in consenting to police access to the shared space and property. It was
    not reasonable for Reeves to expect Nicole would not be able to consent to
    police entry into the common areas of the home or to the taking of the shared
    computer.

(iii)

Nicoles Ability to Consent

[63]

Having found Nicole could consent, it remains to be determined whether
    her consent was valid.

[64]

The application judge held that it was. In this court, Reeves takes
    issue with that finding, submitting the requirements for a valid consent were
    not made out. The Crown, for its part, says the application judges finding of consent
    was reasonable and not infected by palpable and overriding error.

[65]

The application judge found that Cst. Santi entered the jointly-owned
    home with the specific purpose of seizing the computer and not for any other
    unrelated purpose.

[66]

Cst. Santi was responding to a call received that day from Reeves
    probation officer who advised that Nicole had reported seeing child pornography
    on the family computer. Upon arriving at the residence, the officer informed
    Nicole that he was responding to that call. After personally speaking with both
    Nicole and Natalie, he satisfied himself an offence had been committed.

[67]

Nicole signed a consent form granting permission to Cst. Santi to enter
    the residence and search the residence and its contents, which are owned and/or
    controlled by me, and seize anything or arrest any person that is believed to
    be relevant to this investigation.

[68]

Nicole then either brought the computer to him or he went into the
    basement to get it. Cst. Santi did not search any area of the home nor did he
    seize any additional property. Once he obtained the computer it was locked up
    and was not searched until judicial authorization to do so had been obtained.

[69]

The application judge found Nicoles consent to the seizure of the
    computer was valid, but found as a matter of law that she was not able to
    consent by virtue of
Cole
. As I have already said, that was an error.

[70]

Other than that legal error, however, I see no reason to interfere with
    the trial judges factual finding of consent. Given that the written consent
    was voluntary and informed, the police were authorized to act on that consent:
    see
Borden
.

[71]

In so holding, I should not be taken to be stating that the police can
    rely on a
bone fide
mistaken belief in consent to justify a
    warrantless search. Reeves suggests this is what the application judge
    determined, pointing to comments the application judge made in para. 11 of his
    reasons. I disagree. In my view, reading the reasons as a whole, the
    application judge found as fact that Nicole did provide a valid consent,
    notwithstanding the potentially conflicting components of her testimony
    mentioned in passing at para. 11. As Doherty J.A. held in
Wills
, where
    the Crown relies on the consent of an individual as authorization for a seizure
    and fails to establish the validity of that consent, then the seizure cannot be
    brought within s. 8 based upon the police officers perception of the validity
    of the consent. Here, the finding was one of actual, valid, informed consent,
    not merely one of
bona fide
mistaken belief in consent.

(iv)

Conclusion on the Consent Search and Seizure

[72]

This ground of appeal is allowed. The trial judge erred in finding
    Nicole could not consent to the search of the shared areas of home and the
    seizure of the computer by police. He made no error, however, in finding as
    fact that her consent was valid. Consequently, there was no breach of s. 8 on
    this ground.

(2)

Did the application judge err by substituting his own view of the
    evidence for that of the justice who issued the search warrant?

[73]

Having considered the first instance of search and seizure (the consent
    entry into the home and taking of the computer) I turn now to the second (the
    police retention of the computer and access to its informational content).

[74]

The issue here is the process used to obtain the polices authorization
    to intrude on what everyone agrees is highly private digital information.
The application judge held that the
Information
    to Obtain (ITO),
which the police relied on to
    obtain a warrant to search the computer, was insufficient to have justified the
    granting of a search warrant
. The Crown takes issue with the application
    judges review of the ITO, submitting he substituted his own view of the
    sufficiency of the evidence for that of the issuing justice, thereby falling
    into error. Reeves disagrees, submitting the application judge made no error in
    his assessment of sufficiency nor in his conclusion that there was a s. 8
    breach.

(i)

A Note on The Retention of the Computer

[75]

Before assessing the arguments regarding the ITO, a brief comment on the
    polices retention of the computer.

[76]

The application judge held that by retaining the computer for four
    months without reporting the seizure to a justice, the police failed to comply
    with ss. 489.1 and 490 of the
Criminal Code
.

[77]

The Crown acknowledges that the failure to make a timely report to a
    justice is a s. 8 violation, as this court held in
Garcia-Machado
.
    However, it says this was a technical breach that was not motivated by bad
    faith, and was corrected as soon as the error came to light. The Crown submits
    that this error, standing on its own, does not justify the exclusion of
    otherwise independently credible evidence of child pornography under s. 24(2).

[78]

I am not entirely persuaded that it is appropriate to describe this as
    merely a technical breach. As Hoy A.C.J.O. noted in
Garcia-Machado
, at
    para. 55, the requirement to make a timely report to a justice is the gateway
    to the important procedural protections set out in ss. 489.1 and 490. As
    Moldaver and Karakatsanis JJ. wrote in
R. v. Tse,
2012 SCC 16, [2012]
    1 S.C.R. 531, at para. 83, s. 8 implies not just freedom from unreasonable
    search and seizure, but also the ability to identify and challenge such
    invasions, and to seek a meaningful remedy. I would be wary of any attempt to
    characterize the failure to meet the reporting requirements set out in s. 489.1
    as trivial or insignificant.

[79]

Even assuming for the sake of argument this was a technical breach,
    however, the application judge found other problems with the computer search
    that, when considered along with this, amount to more than a technical breach.
    Thus, I turn back to the sufficiency of the ITO.

(ii)

Legal Principles Governing Warrant Review

[80]

Brown J.A. recently provided a helpful collection of the jurisprudence
    on the role of a reviewing judge on a
Garofoli
application in
R.
    v. Hafizi
, 2016 ONCA 933, 343 C.C.C. (3d) 380, at para. 44:

The test a reviewing judge is to apply is whether, in light of
    the record amplified on review, the ITO contained sufficient reliable evidence
    that might reasonably be believed on the basis of which the authorizing justice
    could have concluded that the conditions precedent required to be established
    had been met:
R. v. Nero
, 2016 ONCA 160, 345 O.A.C. 282, at para. 70.
    If on the amplified record the reviewing judge concludes that the authorizing
    judge could have granted the authorization, then he or she should not
    interfere:
R. v. Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452. In this
    process, the existence of fraud, non-disclosure, misleading evidence and new
    evidence are all relevant, but, rather than being a prerequisite to review,
    their sole impact is to determine whether there continues to be any basis for
    the decision of the authorizing judge:
Garofoli
, at p. 1452;
R.
    v. Hall
, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 47  48.

[81]

This court owes deference to the reviewing judges findings of fact made
    in his or her assessment of the record, as amplified on review, and to his or
    her disposition of the s. 8 challenge:
R. v. Beauchamp
, 2015 ONCA 260,
    333 O.A.C. 87, at para. 89. But warrants are presumptively valid and the
    reviewing judge must not conduct a
de novo
assessment of the grounds
    for authorization.

[82]

Nevertheless, as noted in
Hafizi
, at para. 43, though a
    reviewing judge must respect the limits of his or her task, the  reviewing
    judge plays a constitutionally vital role in guarding against potentially
    unjustified invasions of privacy authorized in
ex parte
proceedings.
    In my view, the bar for review of
ex parte
authorizations should not be
    set so high as to sap the review process of meaning. Where the adversarial
    process reveals the ITO contained significant misleading information, the
    reviewing judge should not be placed in a straightjacket of absolute,
    unyielding deference to the hypothetical possibility of the authorizing judge
    still granting an
ex parte
authorization. The standard is whether the
    authorizing justice reasonably could still have granted the authorization, not
    whether there is a slight chance or theoretical possibility that he or she
    could have done so. And, as noted above, this court owes deference to the
    reviewing judges assessment on that issue.

(iii)

Application

[83]

In my view, the application judge made no palpable and overriding error
    in (i) determining the ITO contained misleading information and omitted
    relevant information, and (ii) further concluding that, once the record was
    corrected,  there no longer was a reasonable basis upon which the authorizing
    could have issued the warrant.

[84]

The application judge reviewed Reeves complaints regarding the ITO, and
    then concluded that although he did not agree with all of the accuseds
    criticisms with respect to the clarity and accuracy of the information,
    nevertheless the ITO reflected a goal-oriented, selective presentation of the
    facts that resulted in an unfair, unbalanced and misleading portrayal of
    Reeves. Implicit in his analysis is his conclusion that, had the relevant facts
    been included and misleading statements excised, there would no longer be a
    reasonable basis for issuance of the warrant.

[85]

I agree with the Crown that it would have been preferable for the
    application judge to specifically spell out which of Reeves complaints about
    the ITO he agreed with. That said, I do not agree that his failure to do so
    frustrates appellate review. Reading the relevant portion of his reasons as a
    whole, it is clear the application judges conclusion was motived by the
    following concerns articulated by Reeves, all of which, in my view, were
    supportable on the record before the application judge.

[86]

First, the affiant omitted from the ITO information regarding potential
    animus by Nicole and Natalie Gravelle towards Reeves. The affiant was aware of
    previous police incidents and criminal assault charges involving Reeves and the
    Gravelle sisters that would have been potentially relevant information of a
    motive to fabricate or exaggerate claims of criminal wrongdoing against Reeves.
    The affiant did not set out these incidents in the ITO. Similarly, the affiant
    included in the ITO information regarding 22 police service calls made from the
    Reeves-Gravelle residence, but failed to point out that in none of those calls
    for service did either Natalie or Nicole mention any concern about child
    pornography; he conceded in cross-examination that, had child pornography been
    mentioned, he would have stated this in the ITO.

[87]

Second, at paras. 37  44 of the affidavit sworn by Cst. Ramsay in
    support of the search warrant, he suggests that Nicole stumbled across  downloaded
    movies and went into some of the sites where she saw what she believed was
    child pornography. However, Cst. Santi agreed that Nicole never told him that
    she had seen downloaded movies or images of child pornography on the computer.
    He testified that he would not have said any of this to the affiant.

[88]

To the extent the affiant made assertions in the ITO that the sisters,
    Nicole and Natalie had witnessed downloaded files of child pornography on the
    computer, these portions of the ITO were erroneous.

[89]

The only substantive information concerning allegations of child
    pornography in the ITO was limited to the written statements of Natalie and
    Nicole on October 22, 2012. The statements disclosed only their exploration of
    the internet browsing history on the computer. Further, Nicole testified that
    she never saw any images or movies of child pornography, just titles that were
    suspicious, and this was on a website. Indeed, the application judge, at para.
    10, noted that Nicole had seen "nothing except names", and "not
    pictures", and that she just "read random names."

[90]

It was open to the application judge to conclude that, taken
    together, the statements of Natalie and Nicole, and Nicoles testimony for the
    application establish that all they discovered was Reeves browsing history. As
    Fish J. described it in
Morelli
at para. 14:


merely viewing in a Web browser an image stored in a remote
    location on the Internet does not establish the level of control necessary to
    find possession. Possession of illegal images requires
possession of the
    underlying data files in some way
. Simply viewing images online
    constitutes the separate crime of
accessing
child pornography, created
    by Parliament in
s. 163.1(4.1)
of the
Criminal Code

[91]

Third, and relatedly, the ITO identified the offence of possession,
    rather than accessing. Under s. 487 of the
Criminal Code
, it is
    necessary to identify the specific offence that is alleged to have been
    committed and in relation to which it is believed the search will afford
    evidence. Appendix "B" of the ITO alleged the single offence of
    possession of child pornography  s. 163.1(4). The warrant was limited to this
    offence and no other. As I have said, browsing history evidence was not capable
    of providing reasonable and probable grounds in respect of a possession charge,
    rather than an accessing charge: see
Morelli
, at paras. 6  7, 63  66.

[92]

In sum, it was open to the application judge to conclude the grounds
    alleged in the ITO, excised of erroneous information, were not capable of
    meeting the test that there was reliable evidence that might reasonably be
    believed on the basis of which the authorization could have issued:
R. v.
    Araujo
,
[2000] 2 S.C.R. 992
, at para. 54
. That is, in this case there was not
    sufficient credible and reliable evidence to have permitted the justice of the
    peace to find reasonable and probable grounds to believe that Reeves was in
    culpable possession of child pornography and that evidence of that crime would
    be found in the computer: see
Morelli
, at para. 62.

[93]

I would add, parenthetically, that the grounds relied upon in the ITO in
    this case were arguably even less reliable when one adds to it the passage of
    time from the alleged observations  some 18 months  during which the computer
    had been used regularly, and a suggestion the drive may have been
    "wiped."

[94]

The Crown raises differing factual interpretations of the points I have
    described above, pointing to conflicting evidence in the record. However, the
    Crown has not established that the application judge committed a palpable and
    overriding error in his assessment of the record as amplified on review. He
    understood the relevant law and there was clearly evidence in the record before
    him that would allow him to make the findings necessary to arrive at the
    conclusion he did. Consequently, there is no basis to interfere with his
    decision

(iv)

Conclusion Regarding the ITO

[95]

The application judge made no error in determining that, in light of the
    record as amplified and corrected on review, the test to issue the warrant
    could not be met. Indeed, in my view, the circumstances in this case are very
    much the same as those in
Morelli
and the application judge made no
    error in determining the warrant could not have issued. I would not interfere
    with his conclusion that the subsequent search of the computer violated s. 8 of
    the
Charter
.

(3)

Did the application judge err by excluding the evidence of child
    pornography pursuant to s. 24(2) of the
Charter
?

[96]

Unconstitutionally obtained evidence should be excluded under s. 24(2)
    if, considering all of the circumstances, its admission would bring the
    administration of justice into disrepute.
Grant
,
at para. 71 instructs that t
his requires a balancing
    assessment involving three broad inquiries: (1) the seriousness of the
Charter
-infringing
    state conduct; (2) the impact of the breach on the
Charter
-protected
    interests of the accused; and (3) societys interest in the adjudication of the
    case on its merits.

[97]

Where a judge has considered the proper factors and has not made any
    unreasonable findings, his or her decision to exclude evidence under s. 24(2)
    of the
Charter
is owed considerable deference on appellate review.
    However, if relevant factors have been overlooked or disregarded, a fresh
Grant
analysis is both necessary and appropriate:
Cole
,
at para. 82
.

[98]

In excluding the evidence, the application judge focused heavily on the
    issue of third party consent in finding the
Charter
infringing state
    conduct to be serious. As I have said, the application judge erred in finding a
    breach on that basis. Therefore, this case is one where a fresh
Grant
analysis
    is both necessary and appropriate.

[99]

This court recently summarized the post-
Grant
paradigm for s.
    24(2) in
R. v. McGuffie
, 2016 ONCA 365, 28 C.R. (7th) 243. In
McGuffie
,
    at paras. 62  63, Doherty J.A. describes the paradigm as follows:

The first two inquiries work in tandem in the sense that both
    pull toward exclusion of the evidence. The more serious the state-infringing
    conduct and the greater the impact on the
Charter
-protected
    interests, the stronger the pull for exclusion. The strength of the claim for
    exclusion under
s. 24(2)
equals the
    sum of the first two inquiries identified in
Grant
. The third inquiry,
    societys interests in an adjudication on the merits, pulls in the opposite
    direction toward the inclusion of evidence. That pull is particularly
    strong where the evidence is reliable and critical to the Crowns case.

In practical terms, the third inquiry becomes important when
    one, but not both, of the first two inquiries pushes strongly toward the
    exclusion of the evidence. If the first and second inquiries make a strong case
    for exclusion, the third inquiry will seldom, if ever, tip the balance in
    favour of admissibility. Similarly, if both of the first two inquiries provide
    weaker support for exclusion of the evidence, the third inquiry will almost
    certainly confirm the admissibility of the evidence. [Citations omitted].

[100]

Here,
    the application judge erroneously found the seizure of the computer violated
    Reeves s. 8
Charter
rights. He correctly, as the Crown properly
    concedes, found the police violated Reeves s. 8
Charter
right by not
    complying with ss. 489.1 and 490 of the
Criminal Code
. Although, he
    notes, at para. 52, that the police conduct was largely not motivated by bad
    faith. And, he correctly found the ITO was insufficient to have justified the
    granting of a search warrant.

[101]

I
    turn now to my fresh assessment of the exclusion analysis under s. 24(2).

[102]

First,
    the seriousness of the
Charter
-infringing state conduct. As I have
    said, I am skeptical of describing non-compliance with ss. 489.1 and 490 as
    technical, for the reasons given by Hoy A.C.J.O. in
Garcia-Machado
.
    At para. 12, the application judge noted Cst. Santis evidence that his usual
    practice was to make a report in compliance with the
Code
, but he could
    not provide any explanation as to why he failed to do so in this case. In the
    absence of an explanation, the breach cannot be said to be merely technical.
    However, as the application judge properly noted, this was a case of delayed
    compliance rather than non-compliance. This, together with the absence of any
    evidentiary basis for concluding this failure was intentional, makes the
    states conduct less serious.

[103]

Similar
    comments can be made regarding the sufficiency of the ITO. As the application
    judge noted, there is a duty on the part of affiants in
ex parte
proceedings
    to provide full, fair and frank disclosure of the facts to the presiding
    justice. The application judges findings do not suggest the misleading
    information in the ITO came from the investigating office, Cst. Santi. Rather,
    they suggest the affiant, Det. Cst. Ramsay, communicated the facts he had been
    provided in a misleading or incomplete manner. There is insufficient basis to
    infer an intention to mislead, especially in light of the application judges
    finding that this was not a case of bad faith police conduct. What the
    application judge found was the ITO displayed a goaloriented, selective
    presentation of the facts.

[104]

That
    said, there are certain important facts in the record that militate against
    finding that the police committed a serious breach with respect to the ITO.
    While it was open to the application judge to find the affiant had misleadingly
    described what Natalie and Nicole had seen on the computer, the affiant, to his
    credit, included the full text of their police statements in the ITO. This
    indicates a desire to be accurate and complete, notwithstanding the
    shortcomings in his descriptions of the evidence elsewhere in the affidavit.
    Likewise, while the application judge was entitled to conclude it was
    misleading to omit the evidence of potential animus, that evidence was also
    potentially prejudicial towards Reeves, consisting as it did of domestic
    violence allegations. It would be difficult to argue the officer acted
    negligently or in bad faith in excluding it.

[105]

In
    sum, in my view the state conduct in question is not as serious as the
    application judge described, in light of his focus on third-party consent
    issue, which I have held to reflect a legal error. While I would not describe
    the breaches as merely technical, as the Crown invites this court to do, I
    would also not describe them as particularly serious.

[106]

Second,
    the impact of the breach on the accuseds
Charter
protected interests.
    On this factor, of greatest concern is the polices access to private
    information. Data found on a personal computer can cut to a persons
    biographical core of personal information, strongly engaging the interests
    protected by s. 8: see, for example,
Morelli,
at paras. 104  106.
    That the search in this case happened to reveal illicit material is of no
    moment at this stage of the analysis. Just as in the context of assessing the
    accuseds reasonable expectation of privacy, when assessing the impact of a
    breach on the accuseds privacy interests, the analysis must be conducted in a
    content-neutral fashion: see, generally,
R. v. Spencer
, 2014 SCC 43,
    [2014] 2 S.C.R. 212, at para. 36. The fact remains that the
Charter
-infringing
    state conduct permitted the state to enter into a deeply private digital
    sphere:
Spencer
, at para. 78. Therefore, the breach had a high impact
    on Reeves
Charter
protected privacy interests.
[1]

[107]

In
    practice, the third
Grant
factor  societys interest in an
    adjudication on the merits  becomes important only when one, but not both, of
    the first two inquiries pushes strongly toward the exclusion of the evidence.
    This case, it seems to me, is the type of case that Doherty J.A. had in mind.

[108]

In
    this case, the third
Grant
factor points strongly in favour of
    admitting the evidence. The images and videos that the police ultimately found
    on the computer are reliable evidence of at least the crime of accessing child
    pornography, if not of the crime of possessing child pornography. The Supreme
    Court recently emphasized that the social importance of prosecuting the sexual
    exploitation of children requires no elaboration:
R. v. K.R.J.
, 2016
    SCC 31, [2016] 1 S.C.R. 906, at para. 66; see also
Spencer
, at para.
    80.

[109]

This
    is a borderline case. The police conduct had a significant impact on Reeves
Charter
protected privacy interests, but society has an extremely strong interest in
    this evidence being placed before a trier of fact for a determination on the
    merits. Ultimately, in reviewing the trial judges findings regarding the
    seriousness of the state conduct, and in evaluating that conduct myself, I
    conclude this is not a case in which the state conduct factor strongly favors
    exclusion. Had the state conduct been any more serious, exclusion might be
    warranted. But in balancing the three
Grant
factors, I conclude that
    the repute of the administration of justice would be undermined more than
    bolstered by excluding the evidence.

[110]

For
    these reasons, I would allow this ground of appeal and admit the evidence.

DISPOSITION

[111]

As
    I noted earlier, I would allow the Crowns appeal on the first ground. Flowing
    from that, and on my fresh s. 24(2) analysis, I conclude the admission of the
    evidence would not bring the administration of justice into disrepute. Given
    the considerable societal interest in a trial on the merits in this case, I
    would set aside the exclusionary order and order a new trial.

Released: DB MAY 5 2017

H.S. LaForme J.A.

I agree. Paul
    Rouleau J.A.

I agree. David Brown
    J.A.





[1]

One factor which I have given no weight in my analysis is the
    concept of discoverability. The Crown might reasonably argue that the police
    could easily have avoided any
Morelli
problems by seeking a warrant for
    accessing child pornography rather than for possession, and that the evidence
    much more strongly supported that view. The reason I have not considered this
    point is that the jurisprudence seems to suggest the discoverability factor
    will cut both ways much of the time  while discoverability will generally
    lessen the impact of a breach, it may also make the breach more serious: see

Grant,
at
    paras. 122  123;
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at
    paras. 64  74. In my view, the trend in the jurisprudence following
Grant
and
Côté
is to move away from using discoverability concepts in s. 24(2)
    analysis. While I do not foreclose the possibility that it might be relevant in
    some cases, I find the factor to be of no real assistance here.


