



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.E., 2019 ONCA 961

DATE: 20191206

DOCKET: C63580 & C66586

Strathy C.J.O., Watt and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.E.

Appellant

Eva Taché-Green, Lance Beechener and Arthur Ayers, for
    the appellant

Katie Doherty, for the respondent

Heard: May 29, 2019

On appeal from the conviction entered by Justice Catherine
    Kehoe of the Ontario Court of Justice, on December 16, 2016 and from the
    sentence imposed on March 14, 2017.

Watt J.A.:


[1]

L.E. (the appellant) is a foreign national subject to a removal order.
    She used her cell phone to take pictures. Some pictures were of her children.
    Some were of the appellant. She sent these pictures electronically to her
    husband.

[2]

An officer from the Canadian Border Services Agency (CBSA) seized the
    appellants cell phone. When the officer examined the cell phone, he saw some
    of L.E.s photographs of herself and of her children. In some of the
    photographs, the appellant was naked. In others, her children were naked.

[3]

The CBSA officer stopped his review of these photographs and called the
    police.

[4]

Police charged the appellant with making, distributing and possessing
    child pornography. A judge found the appellant guilty of each count and entered
    convictions on the counts of making and distributing child pornography. The
    judge imposed a term of imprisonment to be followed by a period of probation.

[5]

The appellant appeals her conviction and sentence, seeking a variation
    in a term of the probation order by which she remains bound.

[6]

These reasons explain why I have concluded that both appeals fail.

THE BACKGROUND FACTS

[7]

The appellant advances several grounds of appeal against conviction. To
    appreciate these grounds, it is necessary to describe the circumstances in
    which the appellants cell phone was seized and examined by CBSA officers
    before it was turned over to the police and a more extensive search of its
    contents conducted under warrant.

The Entry into Canada

[8]

In early 2014, the appellant, her husband, A.E., and their three young
    children fled Nigeria and made their way to the United States. The appellant
    had been subjected to female genital mutilation in Nigeria and did not want her
    daughters to be subjected to the same form of mistreatment.

[9]

On July 1, 2014 the appellant and her daughters entered Canada. A.E.
    remained in the United States. Canadian immigration records do not disclose
    that the appellants entry to Canada with her children was lawful.

The Claim for Asylum

[10]

Shortly after her unlawful entry into Canada, the appellant sought
    asylum in Ottawa as a refugee. Her claim, advanced on her own and her
    childrens behalf, failed. A removal order, effective February 24, 2015,
    followed.

The Removal Process

[11]

In February 2015, a CBSA officer was assigned to facilitate the removal
    of the appellant and her children from Canada. The officer, Bradley Hansen,
    began monthly meetings with the appellant. Hansen directed the appellant to
    provide him with her and her childrens passports or obtain new passports from
    the Nigerian High Commission. Passports were required for removal purposes.

[12]

The appellant denied having any passports. She claimed that her
    passports were with the smuggler who had brought her and her children into
    Canada from the United States. The appellant told Hansen the Nigerian High
    Commission staff said they could not issue new passports for her and her children
    without her husbands signature. She said she did not know the whereabouts of
    her husband. She had not spoken to him for a year and had no means of
    contacting him.

The Anonymous Tip

[13]

In mid-July 2015, CBSA staff received an anonymous tip that the
    appellant and her husband were living together in Canada, or that the husband
    was in fact living in Canada. The tip included pictures of current and valid
    passports for the appellant, her husband and their children; current and valid
    American visas; and copies of Nigerian identification certificates with
    pictures of the appellant and her husband in two different names.

[14]

During a meeting with the appellant two weeks after the CBSA received
    the anonymous tip, the appellant repeated that she had not spoken to her
    husband in over a year.

The Confrontation

[15]

At a meeting on August 19, 2015, Officer Hansen confronted the appellant
    with the substance of the anonymous tip. He told her that her husband had made
    a refugee claim in Canada. The appellant denied the substance of the tip. She
    began to wail loudly and threw herself on the floor of the office. She
    continued in this way for about 30 or 45 minutes. Hansen instructed her to
    return to the office the next day.

The House Check

[16]

After the appellant left the CBSA offices, Hansen, together with three
    other officers, went to the appellants residence in search of her husband. On
    the first visit, the appellant was not home. No one responded to Hansens knock
    on the door. A neighbour told the officers that he recognized a photograph of
    the appellants husband.

[17]

When officers returned an hour later, the appellant answered the door.
    The CBSA officers searched the house to determine whether A.E. was there. He
    was not. The officers left.

The Final Meeting

[18]

The following day, August 20, 2015, the appellant returned to the CBSA
    office. She brought her baby daughter with her. Officer Hansen arranged to have
    a female colleague, Officer Hamel, with him during his meeting with the
    appellant.

[19]

When asked again by Hansen about her passports, the appellant did not
    resile from her earlier accounts. She said that she did not have or know the
    location of her passport. She had not spoken to her husband and knew nothing of
    his whereabouts.

[20]

Officer Hansen arrested the appellant. She was inadmissible to Canada
    and the subject of a removal order. In Hansens view, the appellant was trying
    to thwart her removal from Canada by not producing her passports and claiming
    she did not know her husbands whereabouts. These circumstances caused Hansen
    to conclude the appellant would not likely appear for removal.

[21]

Advised that she was under arrest, the appellant threw herself on the
    ground and became hysterical, repeating her conduct from the previous day.
    Twice Hansen offered the appellant the opportunity to contact counsel. Twice,
    the appellant declined. She made it clear in her responses that she wanted to
    call her husband, not to speak to counsel.

The Cell Phones

[22]

During the arrest process and search incident to it, CBSA officers
    located two cell phones: a Blackberry and an LG Nexus. They seized the phones
    intending to search them for evidence that the appellant had valid passports
    and had been in communication with her husband. This information would assist
    in proving the appellant was a flight risk and would justify her detention
    pending removal.

The Request for Counsel

[23]

After her arrest, the appellant was lodged in a holding cell. Later that
    morning, she asked to speak to her counsel. The officers left a voicemail for
    counsel, then waited for counsel to return their call.

The Telephone Calls

[24]

While awaiting a return call from the appellants counsel, CBSA officers
    agreed to permit the appellant to call her husband. The appellant explained
    that her husbands phone number was saved on her LG Nexus phone. The officers
    advised the appellant that they would not return her cell phone. Instead, they
    would retrieve her husbands phone number from her cell phone while she was
    there, then call the number from a landline in the CBSA office so that she
    could speak to her husband.

[25]

The appellant provided the officers with her password and instructions
    about where her husbands phone number could be located. An officer retrieved
    the number, called it on the office landline, and handed the phone to the
    appellant so that she could speak to her husband. Her husband asked to speak to
    a CBSA officer. He asked the officer whether the appellant would be released if
    the passports were provided.

[26]

After the call with her husband concluded, the appellant spoke to her
    immigration counsel for about 30 minutes.

The Cell Phone Searches

[27]

Officer Hansen testified that he told the appellant that her phones
    would be searched. The officer could not recall whether he provided this
    information to the appellant before or after the appellant spoke to her lawyer.
    The officer made no note of this conversation.

[28]

Officer Bressard searched the pictures, call logs, text messages, and
    videos on the appellants Blackberry. The device was not password-protected.
    She relied on s. 16(3) of the
Immigration and Refugee Protection Act
, S.C.
    2001, c. 27 (the
IRPA
) as her authority for the search. She found
    nothing. The officer did not search the LG Nexus phone. Both phones were placed
    in an evidence bag and transported to the local detention centre with the
    appellant when she was lodged there.

[29]

With the aid of the password the appellant had provided on arrest,
    Officer Bressard searched the LG Nexus phone after recovering it from the
    appellants property at the detention centre. In the contact list, she found
    separate phone numbers for My love and My husbands number. Text message
    conversations with one of those numbers had been deleted. Thinking that other
    information relevant for s. 16(3)
IRPA
purposes may have been deleted,
    the officer turned the LG Nexus phone over to a digital forensic examiner at
    the CBSA.

The Detention Order

[30]

Less than a week after her arrest, the appellant was ordered detained.

The Child Pornography

[31]

After the appellants first detention review hearing had concluded,
    officers Bressard and Hansen delivered the LG Nexus cell phone to Renee
    Pharand, a digital forensic examiner at the CBSA. Bressard and Hansen had
    noticed on their perusal of the phone that some information appeared to have
    been deleted, a chat history with one of the contacts My love or My
    husbands number. Pharand, unlike the other officers, was able to locate
    deleted information.

[32]

Renee Pharand took a forensic image of the LG Nexus cell phone, then
    examined the live data on that image. When Pharand examined a Pictures file
    in search of pictures of the appellants husband, he found some photographs
    which he considered could amount to child pornography. He stopped his search
    and called the police. As Pharand explained, his search was regulatory in
    nature, not criminal.

The Police Search

[33]

Under a
Criminal Code
,
    R.S.C. 1985, c. C-46
search warrant, police seized the LG Nexus
    phone. Sergeant Reed, an expert in forensic examination of computers and
    related devices, forensically imaged the contents of the LG Nexus phone. The
    officer provided a report on ten images created, stored, and distributed on the
    cell phone. Some were simply taken by the appellant on her phone and stored
    there. Others were distributed to her husband in a chat on the WhatsApp
    application. The officer identified a binder of 129 images filed by the Crown
    at trial which are said to constitute child pornography.

The Grounds of Appeal

[34]

The appellant appeals her conviction on five grounds. She submits the
    trial judge erred:

i.

in finding that the search of the appellants cell phone was not
    unreasonable and thus not in breach of s. 8 of the
Charter
;

ii.

in failing to exclude evidence of the results of the cell phone search
    under s. 24(2) of the
Charter
;

iii.

in rendering a verdict that was unreasonable on the evidence adduced at
    trial;

iv.

in misapprehending evidence material to the findings of guilt; and

v.

in demonstrating a reasonable apprehension of bias during the sentencing
    proceedings that affected the fairness of the trial.

[35]

The appellant also seeks leave to appeal her sentence on a single
    ground: reasonable apprehension of bias on the part of the trial judge in the
    conduct of the sentencing proceedings which warrants a variation of the
    probation order made at trial.

THE APPEAL FROM CONVICTION

Ground #1: The Lawfulness of the Cell Phone Search

[36]

Images on the appellants cell phone formed the basis of the child
    pornography allegations. A CBSA officer first discovered these images during a
    search of the appellants phone. The police were notified, a warrant obtained,
    and the appellant subsequently arrested and charged.

[37]

At trial, the appellant challenged the lawfulness of the CBSA officers
    search of her cell phone and the admissibility of the photographs resulting
    from this search. As I explain, I would reject this ground of appeal.

The Background Facts

[38]

Some of the circumstances which led to the seizure and subsequent search
    of the appellants LG Nexus cell phone have already been outlined and need not
    be repeated. Some further detail will complete the background essential to an
    understanding of the ground of appeal advanced and how I propose that it be
    decided.

The Home Visit

[39]

On August 19, 2015, about three weeks after the appellant had completed
    a statutory declaration claiming that she had no knowledge of her husbands
    location and had not seen him for over a year, CBSA officers confronted her
    with some contradictory information. That information included disclosure of
    her husbands application for asylum as a refugee, which incidentally made it
    clear that CBSA officers knew that her husband was in Canada. The officers also
    revealed that the agency had received an anonymous tip that included copies of
    current valid passports and two sets of identification certificates in
    different names for each of the appellant and her husband. Further, the tip
    included a claim that the appellant and her husband had been seen together in
    Canada.

[40]

In an unannounced visit to the appellants home later that same day,
    CBSA officers asked whether they could enter and look through the premises for
    her husband. The appellant agreed. The officers noticed that the main floor of
    the home was unfurnished. They did not see the appellants husband or any sign
    of him.

[41]

According to the appellant, the officers entered her home as soon as she
    opened the door on hearing their knock. They told her that they were there to
    search the home. She did not invite the officers in, simply stood by, as they
    directed her, for about 20 minutes while the search progressed. No one told the
    appellant that she could refuse the officers entry to her home.

The Arrest

[42]

When the appellant reported to the CBSA office the following day, August
    20, 2015, Officer Hansen made it clear that he considered that she was trying
    to thwart her removal by refusing to bring any current passports or to apply
    for new passports for herself or her children. Passports were essential for
    removal. Officer Hansen told the appellant that it was her last opportunity to
    tell the truth about her circumstances. The appellant repeated her story about
    the lack of passports, her lack of awareness of her husbands location and the
    absence of any communication with him. Hansen arrested her under the
IRPA
.
    To calm her down, the appellant was lodged in a holding cell and told of her
    right to counsel which she initially declined to exercise. The appellant said
    that she wanted to speak to her husband.

The Cell Phone Seizure

[43]

After CBSA officers arrested the appellant under the
IRPA
, they
    seized two cell phones from her relying on s. 140 of the
IRPA
as their
    authority to do so. The officers considered that the phones might afford
    evidence of the appellants failure to comply with the
IRPA
and of her
    efforts to thwart her removal from Canada, including contact with her husband
    and the location of essential identification documents.

[44]

Officer Bressard turned on the appellants Blackberry which was not
    password protected. She looked through some pictures, call logs, texts, and
    videos for information about passports, travel documents and contact between
    the appellant and her husband. She found nothing. In the officers view, s.
    16(3) of the
IRPA
provided authority for this examination. She did not
    search the LG Nexus phone at that time.

[45]

The appellant insisted on calling her husband but claimed not to know
    his number. She told the officers that his number was in her cell phone. She
    provided her password. Officers searched her contacts list, obtained the
    number, called it on a CBSA landline and permitted her to talk to her husband.
    An officer told the appellant that they would be searching her phones. She
    responded Go ahead. The appellant denied that any such conversation took
    place. No reference to this effect appears in the officers notes.

[46]

The appellant testified that she did not talk to the officers about her cell
    phones. She admitted to providing her password for the LG Nexus phone to
    Officer Hamel. She spelled it out so that Hamel could locate her husbands
    phone number. The appellant denied that Officer Hansen told her that they would
    be searching the telephone for documents. She further denied telling the
    officers to go ahead and search the phones. She said no one ever told her that
    she could contact a lawyer or the Nigerian High Commission.

The LG Nexus Phone Search

[47]

The appellants first detention review hearing was on August 24, 2015.
    That same day, Officer Bressard searched the contacts list in the appellants
    LG Nexus cell phone. There she found two separate contact names and numbers for
    the appellants husband under My love and My husbands number. Some
    messages remained. Others had been deleted. In the officers view, the contacts
    and photos put the lie to the appellants claim about when she and her husband
    had arrived in Canada.

The Forensic Examiner

[48]

The forensic examiner, Renee Pharand, searched the LG Nexus phone for
    evidence that the appellants husband was in Canada before the date in his
    refugee claim of May 2015. He was looking for information about passports,
    other identity or travel documents showing the names and photographs or other
    contacts between July 2014 and August 2015.

The Ruling of the Trial Judge

[49]

At trial, the appellant sought exclusion of the evidence, in particular the
    photographs alleged to constitute child pornography, obtained through search of
    her LG Nexus cell phone. This evidence, the appellant contended, was obtained
    in breach of her rights guaranteed by ss. 7, 8, 10(a) and 10(b) of the
Canadian
Charter of Rights and Freedoms
. In addition, the appellant alleged
    that a discrete breach of her s. 8 right had occurred when officers entered her
    home without advising her of her right to deny them entry.

[50]

Critical to success on her claim of
Charter
infringement was
    acceptance of the appellants testimony where it conflicted with that of the
    CBSA officers. However, the trial judge rejected the appellants evidence as she
    explained in para. 188 of her reasons:

The above examples demonstrate the contradictions and internal
    inconsistencies of Ms. L.E.s evidence. As well, the examples demonstrate Ms.
    L.E.s willingness to tailor her evidence and mislead the Court to support her
    allegations of Charter breaches. I reject Ms. L.E.s evidence that she was not
    told of her right to speak with a lawyer upon arrest, and that she was not
    given the opportunity to speak with counsel concerning her arrest on August 20,
    2015. I reject her evidence that Officer Hanson did not inform her that he was
    seizing the phones to search for evidence of non-compliance with IRPA [
sic
].
    I reject her evidence that she was not told of the criminal charges that she
    would be appearing in Court for on September 23, 2015 and that she was not
    provided the opportunity to speak with counsel concerning those charges.
    Therefore Ms. L.E. has not proved on a balance of probabilities that her
    section 7, 10(b), 10(a) and 10(b) [
sic
] (September 23, 2015) rights were
    breached.

[51]

In lengthy reasons, the trial judge rejected all claims of
Charter
infringement in connection with the searches of the appellants cell phones, in
    particular, the LG Nexus phone on which a subsequent warranted search located
    images said to constitute child pornography. The trial judge did find a breach
    of s. 8 in connection with the search of the appellants home in an attempt to
    locate her husband. The basis of this finding was that the consent relied upon
    to make the search s. 8 compliant was vitiated because of a failure to advise
    the appellant of her right to refuse entry.

[52]

Despite the s. 8
Charter
infringement relating to the house
    search, the trial judge admitted the evidence collected during the search of
    the appellants cell phones, in particular, the LG Nexus phone.

The Arguments on Appeal

[53]

The appellant challenges the trial judges finding that the CBSA
    officers were authorized by law to search her LG Nexus cell phone.

[54]

First, the appellant argues she did not consent to the LG Nexus cell
    phone search by providing her password to CBSA officers. The evidence relied
    upon to ground the finding of consent was ripe with inconsistencies and implausibility.
    The appellants consent was limited to retrieval of her husbands telephone
    number. And the appellants consent was involuntary and uninformed.

[55]

Second, the appellant contends neither s. 16(3) nor s. 140 of the
IRPA
afford a lawful basis for the cell phone search. The provisions of the
IRPA
must be interpreted in a way consistent with the
Charter
. As
    warrantless searches, the cell phone searches were
prima

facie
unreasonable. They were not authorized by s. 16(3) of the
IRPA
because
    what was sought was evidence that the appellants husband, not the appellant
    herself, was not in compliance with the Act. The searches went beyond what is
    permitted incident to an arrest under the
IRPA
. The fact that s.
    138(1) of the
IRPA
incorporates the search warrant provisions of the
Criminal
    Code
suggests that s. 16(3) of the
IRPA
invoked in this case does
    not permit warrantless searches.

[56]

The appellant does not challenge the reasonableness of common law
    consent or
IRPA
search authority. Nor does she contest the
    reasonableness of the search itself.

[57]

The respondent rejects any suggestion that the search of the appellants
    cell phone violated s. 8 of the
Charter
.

[58]

The respondent says the appellant misinterprets the trial judges
    analysis on consent as it relates to the lawfulness of the search. The trial
    judges conclusion is based entirely on the premise of statutory authority, not
    the appellants consent. Provision of the password did not provide or alter the
    officers authority to search the phone.

[59]

The respondent agrees with the trial judge. Section 16(3) of the
IRPA
authorized the CBSA officers:

i.

to compel the appellant to disclose her password; and

ii.

to search the appellants cell phone for the purposes set out in s.
    16(3) of the
IRPA
, among them, to establish a foreign nationals
    identity and compliance with the requirements of the
IRPA
.

[60]

The respondent adds that the appellants submission that the authority
    provided by s. 16(3) must be interpreted narrowly to comply with
Charter
principles is not well-founded. The constitutionality of s. 16(3) is
not
in issue in this case. And, regardless,
Charter
values as an
    interpretive tool only play a role where there is genuine ambiguity in the
    legislation. No such ambiguity resides in s. 16(3) and none was advanced here.

The Governing Principles

[61]

Fundamental principles of the law governing searches and seizures by
    state actors are at work in this case and dispositive of this issue.

[62]

Conduct by state actors which amounts to a search or seizure is subject
    to the requirement of reasonableness in s. 8 of the
Charter
. To be
    reasonable:

i.

a search or seizure must be authorized by law;

ii.

the authorizing law must be reasonable; and

iii.

the search must be carried out in a reasonable manner.

See,
R. v. Collins
, [1987] 1 S.C.R. 265, at
    p. 278.

[63]

The appellant does not challenge the reasonableness of the law or the
    search. The sole s. 8 question on this appeal is was the CBSA search of the
    appellants cell phone authorized by law?

[64]

To be
authorized by law
, the search must be authorized by a
    specific statute or common law rule; the search must meet the procedural and
    substantive requirements of the law; and the search must not exceed any
    subject-matter or location limits imposed by the law:
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at para. 12.

[65]

Courts do not consider the constitutionality of the law at this stage in
    the s. 8 analysis. Infusing
Charter
principles as part of the
    interpretation analysis would, effectively pre-empt any judicial review of the
    constitutional validity of the statutory provision:
R. v. Rodgers
, 2006
    SCC 15, [2006] 1 S.C.R. 554, at para. 15.

The Principles Applied

[66]

I would not give effect to this ground of appeal. As I explain below,
    the CBSA officers search of the appellants cell phone was authorized by ss.
    140 and 16(3) of the
IRPA
. Given this finding, it is unnecessary to
    address whether the CBSA officer had authority to search the appellants cell
    phone under the common law consent search doctrine.

[67]

Section 16(3) of the
IRPA
gives CBSA officers a statutory search
    power:

An officer may require or obtain from a permanent resident or a
    foreign national who is arrested, detained, subject to an examination or
    subject to a removal order, any evidence  photographic, fingerprint or
    otherwise  that may be used to establish their identity or compliance with
    this Act.

[68]

Section 16(3) imposes procedural and substantive limits on the CBSA
    officers search power. Under this provision, a CBSA officer can conduct a
    search if:


i.

the subject of the search is a permanent resident or foreign national;


ii.

the subject of the search is arrested, detained, or subject to an
    examination or removal order; and


iii.

the search is to establish the subjects identity or determine
    compliance with the
IRPA
.

[69]

But s.16(3) does not limit the subject matter of the search. It allows
    the CBSA officer to obtain any evidence so long as that evidence is obtained
    to establish the subjects identity or determine compliance with the
IRPA
.

[70]

In my view, s. 16(3) authorized the CBSA officers search of the
    appellants cell phone. The appellant was a foreign national; she had been
    arrested and detained and was subject to a removal order. The CBSA officers sought
    evidence that the appellant was attempting to contravene her removal order.
    They sought evidence from the LG Nexus cell phone in the appellants possession
    on arrest, to determine the appellants compliance (or lack thereof) with the
IRPA
,
    having information that could support a reasonably grounded belief the
    appellant was obstructing her removal from Canada.

[71]

The appellant told CBSA officers that her husbands phone number was on
    the LG Nexus cell phone. It was open to the officers to infer that her cell phone
    was likely to reveal details of the contact between the appellant and her husband
    relevant to the true state of affairs surrounding their entry into Canada and
    attempts to circumvent their removal.

[72]

The appellant hinged her s. 8 argument on whether the search was
    authorized by law. Because s. 16(3) of
IRPA
authorizes the search of the
    appellants cell phone, the argument fails.

Ground #2: Exclusion of Cell Phone Search Evidence

[73]

The appellant recruits s. 24(2) of the
Charter
to exclude
    photographs found on a search of her cell phone as evidence against her.

[74]

As I have already explained, I am satisfied that the search of the appellants
    LG Nexus cell phone by CBSA members did not violate s. 8 of the
Charter
.
    It follows that:

i.

the CBSA search cannot serve as the infringement portal to access s.
    24(2) of the
Charter
as an exclusionary mechanism; and

ii.

references
    to the fact, nature, and results of the CBSA search need not be excised from
    the ITO on the basis of which police obtained a
Criminal Code
warrant
    to search the phone.

[75]

The appellant does not otherwise challenge the issuance of the
Criminal
    Code
search warrant or the manner in which the search was carried out
    under its auspices.

[76]

The trial judge found a breach of s. 8 occurred when, on the day prior
    to her arrest, CBSA officers searched the appellants home to determine whether
    her husband was there but did not advise the appellant that she could refuse
    them entry. I do not understand the appellant to say that this infringement, on
    its own, is sufficient to warrant exclusion of the evidence obtained by the cell
    phone search conducted after her arrest by CBSA officers or under warrant days
    later by police.

[77]

What I have said is sufficient to dispose of this ground of appeal.
    However, in the event that I am wrong about the reasonableness of the CBSA
    search of the appellants LG Nexus cell phone, I will consider the
    admissibility of the photographs found during the search.

The Arguments on Appeal

[78]

The appellant says that the evidence obtained by the CBSA
    search of her cell phone should be excluded under s. 24(2) of the
Charter
because

·

the breach was serious:
    CBSA officers searched the appellants cell phone without a warrant, without
    extenuating circumstances, or need for urgency. They did not consider applying
    for a warrant and the fact that all officers held the same expansive view of
    their search powers
reveals an approach that is systemic, thus
    aggravating the breach.

·

the breach had a
    significant impact on her
Charter
-protected interests:
the appellant had a
    significant privacy interest in the information contained in her password
    protected cell phone. The search was extensive and involved state actors
    rummaging around in intensely personal information involving intimate details
    of her life and that of her children.

·

These factors point strongly towards exclusion and are not
    overcome by societal interest in the trial of child pornography offences on
    their merits with evidence of unimpeachable reliability.

[79]

The respondent takes a contrary position. The respondent asks this court
    to hold admissible evidence obtained by the CBSA search of her cell phone because

·

the breach falls at the minimal end of the spectrum: CBSA officers
    conducted the search in good faith. They reasonably relied on their authority
    under s. 16(3) of the
IRPA
. No binding precedent mandated otherwise.
    Their search was regulatory. That evidence of crime was uncovered was pure
    happenstance, reflected in immediate cessation of the search and report to
    those charged with enforcement of the criminal law.

·

the search had an attenuated impact on the appellants privacy
    interests: the appellant was inadmissible to Canada and had a limited
    expectation of privacy as a person who was subject to an enforceable removal
    order. With or without the appellants provision of the password, CBSA members
    could unlock the phone and, in all the circumstances, search it for information
    relevant to the removal process. The search was conducted in a reasonable
    manner.

·

there is a significant public interest in the prosecution of
    child pornography offences. All the more so when the available evidence is
    real, reliable, and crucial to a just determination of the issues in play.

[80]

According to the respondent, a proper application of the
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353

inquiry compels this court to admit the
    evidence obtained by the cell phone search.

The Governing Principles

[81]

Applications to exclude evidence under s. 24(2) of the
Charter
require a court to assess and balance the effect of admitting the evidence on
    societys confidence in our justice system. This exercise, which requires
    consideration of all the circumstances of the case at hand, has regard to three
    lines of inquiry:

i.

the seriousness of the
Charter
-infringing state conduct;

ii.

the impact of the
Charter
-infringing state conduct on the
Charter
-protected
    interests of the accused; and

iii.

societys interest in the adjudication of the case on its merits.

See
Grant
, at para. 71.

[82]

The first inquiry involves evaluating the gravity of the state conduct
    that led to the breach to preserve public confidence in the rule of law and its
    processes:
Grant
, at para. 73. Some extenuating circumstances, like
    good faith on the part of the state agent, will reduce the courts need to
    disassociate itself from that conduct. We must not however encourage ignorance
    of
Charter
standards or equate negligence or wilful blindness with
    good faith. This is especially true where the
Charter
-infringing state
    conduct is systemic or part of a pattern of abuse:
Grant
, at para. 75.

[83]

The second line of inquiry requires us to evaluate the extent to which
    the breach
actually
undermined the accuseds
Charter
-protected

interests, in this case, her privacy. An unreasonable search that intrudes
    on an area in which the person reasonably enjoys a high expectation of privacy is
    more serious than one that does not:
Grant
, at paras. 76-78.

[84]

It is uncontroversial that cell phone searches may constitute very
    significant invasions of privacy. But not every search of a cell phone is
    inevitably a significant intrusion on privacy rights:
R. v. Fearon
,
    2014 SCC 77, [2014] 3 S.C.R. 621, at para. 54.

[85]

The third line of inquiry is concerned with whether the truth-seeking
    function of the criminal trial process would be better served by admission of
    the constitutionally tainted evidence or by its exclusion. The reliability of
    the evidence and its importance to the prosecutions case are important
    considerations at this stage of the analysis:
Grant
, at paras. 81, 83.

The Principles Applied

[86]

If, contrary to my conclusion, the CBSA search of the appellants cell
    phone breached s. 8 of the
Charter
,
I would nonetheless find the evidence obtained admissible. This
    ground of appeal also fails.

[87]

As
Grant
teaches, the s. 24(2) analysis is contextual. It must account
    for
all
the circumstances.

[88]

The first line of inquiry, the seriousness of the
Charter
-infringing
    state conduct, favours admission of the evidence. The CBSA members relied in
    good faith on a statutory provision in a regulatory statute to conduct the
    search for evidence that the appellant was attempting to circumvent Canadas
    immigration laws. The search was terminated as soon as evidence of a potential
    criminal offence was discovered, police notified, and a warrant obtained. What
    occurred was an honest mistake, reasonably made, not state misconduct that
    requires evidentiary exclusion. Importantly, the appellant did not challenge
    the constitutionality of the statutory provision the CBSA officers relied on
    for their search; nor did the appellant challenge the reasonableness of the
    search itself.

[89]

The second line of inquiry, the assessment of the impact of the state
    conduct on the appellants
Charter
-protected interests, also favours
    admission of the evidence. Any cell phone search has the potential to
    significantly invade informational privacy interests. But that is doubtfully so
    in this case. Recall that here, as in
Fearon
, the appellant did not
    challenge the search warrant subsequently issued to the police, which yielded
    the photographs that ultimately formed the subject-matter of the appellants charges.
    The results of the CBSA search were an integral component of the ITO on which
    the issuance of the warrant was based. The unchallenged warrant mitigates
    against the seriousness of the breach:
Fearon
, at para. 96.

[90]

The final line of inquiry, whether the truth-seeking function of the
    criminal trial process would be better served by admission or exclusion of the
    constitutionally tainted evidence, also favours admission. This evidence is
    real, its reliability impervious to cross-examination, and it is crucial to the
    Crowns case, an integral component of the
actus reus
. Moreover, the
    offences charged, child pornography, are among those with a significant public
    interest in prosecution and trial on the merits.

[91]

Because all three branches of the
Grant
inquiry favour admission
    of the evidence, I am satisfied that, even if the CBSA officers search of the
    appellants cell phone violated the appellants s. 8
Charter
rights, the
    results of the search  the allegedly pornographic images  were properly
    admitted in evidence.

[92]

I dismiss this ground of appeal.

Ground #3: Unreasonable Verdict

[93]

The appellant argues the trial judges finding that the appellants
    photos depicting the sexual organs and anal regions of her naked children were
    taken for a sexual purpose within s. 163.1(1)(a)(ii) of the
Criminal Code
,
    a pivotal issue at trial, was unreasonable either on the evidence adduced at
    trial or, alternatively, when the trial record is supplemented by the appellants
    proposed fresh evidence.

[94]

For the reasons that follow, I would not give effect to either argument.
    Consequently, this ground of appeal fails.

Reasonableness of the Verdict on the Evidence at Trial

[95]

A brief reference to the trial judges reasons for finding the Crown had
    proven the essential elements of the offences charged provides the necessary context
    to consider this argument.

The Trial Judges Reasons

[96]

The trial judge provided lengthy written reasons for her decision. After
    a detailed recital of the arguments advanced by counsel at trial, the judge
    turned her attention to the appellants testimony.

[97]

The appellant had denied taking the photographs for any illicit sexual
    purpose. She said the photographs were taken out of a concern for her
    childrens health and, in particular, so that she could show their condition to
    her husband and determine if medical attention was required. The trial judge
    rejected this evidence. She found the appellant was not a credible witness and gave
    unreliable testimony. The trial judge did not believe the appellant nor did her
    testimony raise a reasonable doubt about her guilt.

[98]

The trial judge then considered the other evidence adduced at trial to
    determine whether, taken as a whole, it established the essential elements of
    the offences charged beyond a reasonable doubt.

[99]

The trial judge found the appellant had taken photographs of her
    children, then aged 1, 3, and 5 years. The dominant characteristic of those
    photographs was the depiction of the childrens sexual organs  the vagina and
    penis  and anus. In some photographs, the appellant herself was naked, engaged
    with her nude or partially-nude children. One image depicted the youngest child
    very close to and facing the appellants naked vagina. Another image depicted
    the appellants naked buttocks touching her sons head. A further photograph
    showed the appellant naked on bunk beds with her naked daughters. Her older
    daughter had her legs spread with the image focused on her vagina and anus. In
    several images, the children were bent over exposing their anal regions in
    plain view.

[100]

The trial judge
    also considered that the appellant sent the images to her husband (My love
    new) shortly after their creation. Her husband texted back Wowwww. Most of
    the images created and sent to her husband appeared to have been posed,
    exposing the childrens sexual organs and anus. None of the accompanying or
    responding texts mentioned any medical issue or condition.

Arguments on Appeal

[101]

The appellant
    says the trial judge failed to consider whether the balance of the evidence
    established the prohibited purpose as the only reasonable inference available
    from the evidence taken as a whole. The appellant points to the following
    evidence to support her position that the verdict is unreasonable:

·

the photographs at issue were photographs of children taken by
    their mother and sent to their father;

·

the photographs presented at trial were an insignificant
    percentage of hundreds if not thousands of photographs of the children taken by
    their mother and shared with their father;

·

some photographs were posed but none in a sexually explicit way
    or involving sexual contact;

·

the photographs were unaccompanied by any captions or extraneous
    indicia;

·

the overwhelming volume of innocuous images;

·

the case for the Crown focused upon a small number of images that
    were not part of a larger collection of sexualized images, not accompanied by
    captions indicative of their purpose, not distributed to the outside world, and
    not offered or exchanged for money; and

·

the responsive messages from the appellants husband lack any
    discernible English meaning, let alone one revealing a prurient sexual purpose.

[102]

The appellant
    argues the inference of sexual purpose was thus not the only reasonable
    inference available from the collection taken as a whole. Without more, the
    trial judges rejection of the appellants testimony does not mandate a finding
    of sexual purpose.

[103]

The respondent reminds
    this court that when the reasonableness of a verdict is challenged, the
    appellant must demonstrate that no trier of fact, acting judicially, could
    conclude that the appellants guilt was the only reasonable conclusion on the
    totality of the evidence. The appellant has not met this standard. Nor can the
    appellant establish the trial judge has drawn an inference or made a finding of
    fact that is plainly contradicted by the evidence relied upon in support of
    that inference or finding, or one shown to be incompatible with evidence that has
    not otherwise been contradicted or rejected by the trial judge.

[104]

The respondent
    says that the photos in issue have as their dominant characteristic the
    depiction of the sexual organs and anal region of children under 18 years old, and
    the appellant is naked in many photos herself. The trial judge considered the
    relevant factors and reached a conclusion reasonably available on the evidence
    taken as a whole. Her conclusion is entitled to deference and ought not to be
    disturbed.

The Governing Principles

[105]

Section
    686(1)(a)(i) of the
Criminal Code
permits
    this court to set aside a guilty verdict if the verdict is unreasonable or
    cannot be supported by the evidence.


[106]

A verdict may be
    unreasonable if, on the whole of the evidence adduced at trial, no properly instructed
    jury, acting judicially, could reasonably have rendered the verdict:
R. v.
    Yebes
, [1987] 2 S.C.R. 168, at p. 181;
R. v. Biniaris
, 2000 SCC
    15, at paras. 36-42. An appellate courts function under s. 686(1)(a)(i)
    extends beyond merely finding there is evidence to support a conviction. We
    must re-examine and, to some extent, re-weigh and consider the effect of the
    evidence to determine whether the verdict is one that a properly instructed
    jury, acting judicially, could reasonably have rendered. In this exercise we do
    not substitute our individual or collective views of the evidence for the view
    of that same evidence taken by the trier of fact:
Yebes
, at paras. 37-42.

[107]

A verdict may
    also be unreasonable where the trial judge has drawn an inference or made a
    finding of fact essential to the verdict that is:

·

plainly contradicted by the evidence relied upon in support of
    the inference or finding; or

·

incompatible with evidence not otherwise contradicted or rejected
    by the judge.

See,
R. v. R.P.
, 2012 SCC 22, [2012] 1 S.C.R.
    746, at para. 9.

[108]

Where a
    verdicts reasonableness involves credibility assessments made by the trial
    judge, we cannot interfere with those assessments unless the appellant
    establishes that the credibility assessments cannot be supported on any
    reasonable view of the evidence:
R.P
., at para. 10.

The Principles Applied

[109]

I would not give
    effect to this ground of appeal. As I will explain, I am satisfied that the
    conviction entered by the trial judge was reasonable on the evidence adduced at
    trial.

[110]

The unreasonable
    verdict challenge is principally focused on the trial judges finding of sexual
    purpose and, to a lesser extent, her conclusion that the dominant
    characteristic of the photographs was the depiction of the childrens sexual
    organs or the anal region of the appellants children.

[111]

In my respectful
    view, the trial judges conclusions on these issues were findings that a
    properly instructed jury, acting judicially, could reasonably have rendered considering
    the following evidence presented at trial:

·

the children are nude in nearly all the photographs that form the
    subject-matter of the charge;

·

the photographs focus, many exclusively, on the childrens sexual
    organs, anal region or both;

·

several photographs memorialize the same image from a different
    angle or point of vantage;

·

most of the images are posed, with the sexual organs or anal
    regions accentuated by the physical positioning of the childs body;

·

the absence from the photographs and contemporaneous text
    messages of any display of a medical condition or any inquiry or response about
    the need for medical evaluation or treatment;

·

the context provided by the images of the appellant naked with
    the focus on her sexual organs and anal region;

·

the manner in which the photographs were distributed: allegedly
    innocent family photographs depicting the appellant and/or her children nude,
    sent together with close-up images of the childrens genitals; and

·

the texts exchanged between the appellant and her husband with a
    caption indicative of sexual excitement or stimulation.

[112]

On the evidence
    adduced at trial, the argument that the verdict was unreasonable fails.

The Proposed Fresh Evidence

[113]

The evidence
    tendered for admission in this court consists of three components:

i.

an Agreed Statement of Facts explaining the provenance of several
    additional photographs the appellant sent to her husband and appendices
    containing several other photographs of the children engaged in typical
    childrens activities;

ii.

an affidavit of Dr. Paul Federoff of the Sexual Behaviours Clinic at the
    Royal Ottawa Hospital attaching a copy of his sexual behaviours assessment
    admitted as evidence in the sentencing proceedings; and

iii.

several letters and other information about the post-sentencing
    activities and progress of the appellant.

[114]

The
    admissibility of items (i) and (ii) is contested. Not so item (iii) which the
    respondent concedes may be considered in assessing the fitness of the
    appellants sentence but has no bearing on the appeal from conviction.

[115]

For the reasons
    that follow, I would not admit items (i) and (ii) as fresh evidence on this
    appeal. I will consider (iii) in my discussion of the sentence appeal below.

The Arguments on Appeal

[116]

The appellant asks
    this court to admit the Agreed Statement of Facts including the additional
    photographs and Dr. Federoffs opinion as fresh evidence because they satisfy
    the admissibility and cogency requirements for fresh evidence and should not be
    rejected for want of due diligence.

[117]

The additional
    photographs proposed for admission are real evidence, just like the photographs
    introduced in evidence at trial. The appellant seeks their admission to show that,
    because the trial proceedings focused on a small percentage of the appellants total
    images of her children, the finding of an underlying sexual purpose was
    unreasonable. There is no issue about the reliability of this evidence. It also
    tends to support the appellants credibility and the reliability of her
    testimony.

[118]

Dr. Federoffs report,
    ordered by the trial judge and filed as an exhibit on sentencing, is properly
    admissible as expert opinion evidence on the appeal from conviction. Like the
    additional photos, this report also casts doubt on the trial judges finding
    the photos at issue had a sexual purpose.

[119]

The appellant
    acknowledges that while the additional photos were available but not tendered
    at trial, Dr. Federoffs opinion only became available after the conviction had
    been registered. However, the appellant submits, the interests of justice
    favour reception of this evidence. This evidence is cogent and, had it been
    tendered at trial, it would likely have affected the verdict. Want of due
    diligence is not a prerequisite to the admissibility of fresh evidence and should
    not compel its rejection.

[120]

The respondent asks
    this court to reject the appellants fresh evidence application.

[121]

The respondent
    acknowledges the additional photos are otherwise admissible real evidence but
    says they lack cogency. The trial judge was well aware that most of the images
    on the appellants cell phone were vastly different than those the Crown relied
    upon to prove its case. The images have little bearing on the critical issues
    at trial and could not reasonably have affected the verdict. But, more
    importantly, the additional photos were available, but not tendered, at trial. The
    appellant provides no explanation for this failure and there is no suggestion
    trial counsel provided inadequate assistance. To admit the additional photos in
    these circumstances would be contrary to the interests of justice.

[122]

Dr. Federoffs expert
    opinion, the respondent contends, also lacks the degree of cogency necessary to
    warrant reception. It reveals no nexus between the appellants prior
    experiences and the photographs or the sexual health of her children. And it
    relies, almost exclusively, on the appellants self-report, that of a person
    whom Dr. Federoffs own testing revealed to be deceptive. But, more importantly,
    this evidence could have been obtained and tendered at trial. The trial judge
    ordered the sexual behaviours assessment report for sentencing purposes. Once
    received, counsel could have asked to reopen the defence case or sought a
    mistrial. He did neither. Without explanation, the interests of justice warrant
    rejection of this proposed evidence.

The Governing Principles

[123]

Section 683(1)
    of the
Criminal Code
gives this court a discretion to admit on appeal
    evidence not adduced at trial if the interests of justice so require:
R. v.
    Palmer
, [1981] 1 S.C.R. 759, at p. 775.

[124]

Where fresh
    evidence is tendered to controvert a finding of fact made at trial, three
    components govern our inquiry and inform the exercise of our discretion to
    admit this evidence on appeal:

i.

admissibility;

ii.

cogency; and

iii.

due diligence.

See
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C.
    (3d) 321, at para. 92;
R. v. M.G.T.
, 2017 ONCA 736, 357 C.C.C. (3d)
    109, at para. 102.

[125]

The first two
    components  admissibility and cogency  are preconditions to the admissibility
    of evidence:
Truscott
, at para. 93.

[126]

The
admissibility
component ensures that evidence would itself be admissible if tendered at trial:
Truscott
, at para. 95.

[127]

The
cogency
criterion requires a qualitative assessment of the evidence proffered on appeal
    and asks three questions:

·

Is the evidence
relevant
in that it bears upon a
    decisive or potentially decisive issue at trial?

·

Is the evidence
credible
, that is to say, reasonably
    capable of belief?

·

Is the evidence sufficiently
probative
that, when taken
    with the other evidence adduced at trial, it could reasonably be expected to
    have affected the result?

See
T
ruscott
, at para. 99.

[128]

Courts can
    demand an enhanced level of cogency from the evidence when an appellant could
    have led the same kind of evidence at trial:
R. v. Dooley
, 2009 ONCA
    910, 249 C.C.C. 449, at para. 109.

[129]

The
due
    diligence
component scrutinizes any explanation offered for the failure to
    introduce the evidence proffered on appeal at trial. This is critical for a
    proper application of the interests of justice standard, which assesses not
    only the interests of the accused, but also embraces the preservation and
    promotion of the integrity of the criminal justice system:
Truscott
,
    at paras. 101-102;
Dooley
, at para. 106. Due diligence is
not
a precondition to admissibility. It only becomes engaged when the admissibility
    and cogency requirements have been met. Yet want of due diligence may result in
    the exclusion of evidence that would otherwise be admissible on appeal:
Truscott
,
    at para. 93.

The Principles Applied

[130]

I would not
    admit the additional photographs or Dr. Federoffs report as fresh evidence on
    this appeal. Given my findings on admissibility, it follows that this evidence
    would not have affected the verdict at trial.

(1)

The Additional Photographs

[131]

Assessed
    qualitatively, the agreed statement of facts and additional photos proposed as fresh
    evidence lack cogency. This evidence could not reasonably have been expected to
    have changed the verdict reached at trial.

[132]

The trial judge
    was well aware that the images tendered by the Crown as child pornography
    represented a fraction of the total number of photographs the appellant took of
    her children. The trial judge considered this uncontested fact in her analysis
    of the sexual purpose component of the child pornography charge. She concluded
    the required sexual purpose had been proven beyond a reasonable doubt. That
    conclusion, reasonably open to the trial judge on all the evidence, could not
    reasonably be expected to have changed with the addition of the actual
    photographs the appellant seeks to admit as fresh evidence.

[133]

Nor am I
    persuaded that the additional photos would have any impact on the trial judges
    assessment of the appellants credibility and the reliability of her evidence.
    The appellant claimed that some of the photos said to constitute child
    pornography showed injuries to the childrens genitalia and buttocks. The
    appellant testified that she took the photos so she could discuss any need for
    medical attention or treatment with her husband. The trial judge looked at the
    photos. She saw no injuries. A large collection of innocent photographs could
    scarcely resuscitate the appellants testimonial failings.

[134]

While not a
    precondition to the admissibility of fresh evidence, the due diligence factor
    strongly favours the rejection of this evidence. The additional photographs
    were available and could have been tendered at trial. No explanation is
    advanced for the failure to adduce this evidence at trial.

[135]

Together, the
    lack of cogency and the absence of due diligence satisfy me that this aspect of
    the proposed fresh evidence should not be received.

(2)

Dr. Federoffs Report

[136]

Like the
    additional photos, Dr. Federoffs report lacks cogency. The report was largely
    founded on the appellants out-of-court self-report. The trial judge found the
    appellants evidence lacked credibility and reliability. And Dr. Federoffs own
    testing revealed elevated scores on scales designed to identify deception and
    impression management. Moreover, the report seems speculative and untethered to
    the evidence adduced at trial. It records a preoccupation with her childrens
    sexual health about which the appellant did not testify at trial and does not
    link her prior experiences with the photos she took of her children that were
    found to constitute child pornography.

[137]

The due
    diligence factor strongly favours the rejection of this evidence. At the risk
    of stating the obvious, the appellant could have sought a sexual behaviour
    assessment from Dr. Federoff before trial and tendered his opinion in support
    of the argument advanced on appeal. No such request was made. And no
    explanation is offered for the failure to do so. Moreover, when Dr. Federoffs
    report (ordered by the trial judge) was admitted at the sentencing hearing,
    trial counsel did not ask to reopen the defence or seek a mistrial. This lack
    of due diligence weighs heavily against the reception of this report as fresh
    evidence.

[138]

In the result, I
    would not admit the proposed evidence on the appeal from conviction.

Ground #4: Misapprehension of Evidence

[139]

The appellant
    contends the trial judge misapprehended various aspects of the evidence adduced
    at trial in reaching her conclusion that several images recovered from the
    appellants cell phone constituted child pornography. For the reasons that
    follow, I would reject this ground of appeal.

[140]

A brief review
    of the alleged misapprehensions provides the necessary context to assess this
    ground of appeal.

The Alleged Misapprehensions

[141]

The appellant
    alleges three discrete misapprehensions of the evidence adduced at trial.

[142]

First, the trial
    judge misapprehended the text message  Wake up and prayyy  accompanying the
    photographs of the childs penis to support her rejection of the appellants
    evidence that the photographs she sent to her husband were taken to depict a
    medical condition about which she sought her husbands advice on treatment. The
    text message was, according to the appellant, not sent with the images;
    rather, it had been sent more than 19 hours before the images were transmitted.

[143]

Second, the
    trial judge misapprehended the dates on which the text messages between the
    appellant and her husband were sent. The trial judge described the images
    without any reference to the two medical issues in the accompanying text as
    having been sent on December 8, 2014. But those images were not sent on
    December 8, 2014; they were sent about three weeks earlier on November 18,
    2014. The images sent on December 8, 2014 were of children playing, not of
    their sons penis. There was no accompanying text about medical issues or
    anything else because the appellant and her husband were speaking to each other
    on the phone.

[144]

Third, the trial
    judge misapprehended the number of images involved. There were not, as the
    trial judge said, 129 unique images. There were 129 unique digital fingerprints,
    but some images were created by applications on the appellants phone. There
    were only 94 unique images. The trial judge also erroneously included in her
    calculation 38 images of her son near the appellants naked buttocks, which
    were not child pornography. A further 28 images of the appellant holding her
    sons penis were created outside the timeframe described in the count.

The Arguments on Appeal

[145]

The appellant
    says these misapprehensions warrant a new trial: they were related to essential
    elements of the offences charged and material to the findings of guilt made and
    convictions recorded.

[146]

The respondent disagrees.

[147]

First, regarding
    the Wake up and prayyy text message, the respondent says it was open to the
    trial judge to conclude that the claims of medical purpose advanced in
    connection with some of the images were simply not borne out by the text
    messages taken as a whole. None of the text messages to which the appellant has
    referred undermine this well-founded conclusion.

[148]

Second,
    regarding the date of the text message, the respondent contends that it was not
    a misapprehension for the trial judge to consider the photos sent on November
    19, 2014. No objection was taken to their admissibility at trial. In any event,
    it matters not that there is not a coincidence between the date specified in
    the information and that revealed by the evidence unless the time of the
    offence is critical and the accused may be misled, thus prejudiced, by the
    variance. That is not so here where the defence advanced was that the
    photographs, whenever taken, did not amount to child pornography. Besides,
    considered in Universal Standard Time, the photos were
taken
within the time period specified in
    the information.

[149]

Third, regarding
    the number of images, the respondent submits the judges reference to 129
    unique images is correct. The police expert testified that although some
    images bore a visual similarity, each had a unique MD5 Hashmark or
    photographic fingerprint. One hundred and twenty-nine unique images are
    included in the exhibit filed at trial. Whether these images were created by
    the appellant or by a program the appellant installed and used on her phone,
    129 unique images were created on the appellants phone.

The Governing Principles

[150]

The principles
    that inform our assessment of claims of misapprehension of evidence are firmly
    rooted in the jurisprudence of this and other courts and need no elaborate
    explanation. A few brief reminders will suffice.

[151]

First, a
    misapprehension of evidence may refer to:

·

a failure to consider evidence relevant to a material issue;

·

a mistake as to the substance of the evidence; or

·

a failure to give proper effect to evidence.

See,
R. v. Morrissey
(1995), 97 C.C.C. (3d)
    193 (Ont. C.A.), at p. 218.

[152]

Second, where
    misapprehension of evidence is advanced as a ground of appeal, we should first
    consider the reasonableness of the verdict rendered at trial. If the appellant
    succeeds on this ground, we enter an acquittal. Where the appellant fails to
    demonstrate the verdict is unreasonable, then we must decide whether the
    misapprehension of evidence caused a miscarriage of justice under s.
    686(1)(a)(iii). In most cases, success on this ground will warrant a new trial.
    Failure to demonstrate a miscarriage of justice resulted from the
    misapprehension requires us to consider whether the misapprehension of evidence
    was an error of law and, if so, whether the Crown has demonstrated that it did
    not result in a substantial wrong or cause a miscarriage of justice:
Morrissey
,
    at pp. 219-220.

[153]

Third, where a
    trial judge is mistaken about the substance of
material
parts of the
    evidence adduced at trial and these errors play an
essential
part of
    the reasons for the accuseds conviction, a miscarriage of justice has occurred.
    The conviction is not grounded in the evidence adduced at trial and is not a
    true verdict according to that evidence:
Morrissey
, at p. 221.

[154]

Fourth, the
    standard just described is stringent. The misapprehension of the evidence must
    relate to the substance of the evidence, not simply a detail:
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. See also,
R. v. Orwin
,
    2017 ONCA 841, 142 W.C.B. (2d) 319, at para. 45;
R. v. Wadforth
, 2009
    ONCA 716, 247 C.C.C. (3d) 466, at paras. 80-81.

The Principles Applied

[155]

To begin, as I
    have already explained, I am satisfied that the verdict rendered by the trial
    judge is not unreasonable. My analysis then turns to whether the
    misapprehension of evidence caused a miscarriage of justice. As I will explain,
    it does not. I would reject this ground of appeal.

[156]

On the evidence
    adduced at trial, it was open to the trial judge to reject the appellants
    claim that various photos of the childrens genital areas were taken for
    medical purposes, that is to say, to capture physical conditions and solicit
    advice from her husband about medical assessment and treatment. No text,
    contemporaneous or otherwise, supported this claim. Its rejection was not
    cumbered by any material misapprehension of the evidence.

[157]

The claim that
    the trial judge erred in her calculation of the number of images also falls on
    barren ground. Whether the images were created by the appellant or by an App
    she had installed on her cell phone is inconsequential. What mattered was not
    the number of images, but rather the character of those images. Likewise, the
    trial judge did not fail to give proper effect to the images in which the
    appellant was nude, but the children clothed. These images provided valuable
    context for an assessment of the purpose for which the photographs depicting
    the sexual organs or anal regions of the children were taken and tended to
    belie the claimed medical purpose advanced by the appellant.

[158]

Finally, trial
    counsel did not object to the admission and consideration of the images sent on
    November 19, 2014. And even if the appellant is correct, which is far from
    clear as a matter of fact, no prejudice ensued. The defence advanced at trial
    was a denial of the unlawful character of the images. Nothing turned on the
    date the images were taken.

Ground #5: Reasonable Apprehension of Bias

[159]

This ground of
    appeal is founded on the trial judges conduct during the sentencing
    proceedings. It includes comments made during the sentencing hearing and what
    the trial judge said in her reasons for sentence. The appellant contends that
    what was said then reflects a state of mind that reaches back into the trial
    proper, prior to the adjudication of guilt, infecting it with the same views
    and requiring a new trial.

[160]

A brief
    reference to the post-conviction proceedings on which the claim is based will
    furnish the necessary background.

The Additional Background

[161]

The claim is
    based on three aspects of the sentencing hearing:

i.

the sexual behaviours assessment;

ii.

the involvement of the Childrens Aid Society (CAS); and

iii.

the reasons for sentence.

The Sexual Behaviours Assessment

[162]

After finding
    the appellant guilty and entering convictions on the offences charged, the
    trial judge ordered a sexual behaviours assessment of the appellant under s. 21
    of the
Mental Health Act
, R.S.O. 1990, c. M.7. As noted earlier, the
    assessment was conducted by Dr. Paul Federoff of the Sexual Behaviours Clinic
    at the Royal Ottawa Hospital.

[163]

Dr. Federoff
    interviewed the appellant and her husband, reviewed the reasons of the trial
    judge and the images found to constitute child pornography and conducted a
    mental status examination of the appellant. Dr. Federoff concluded the
    appellant displayed normal heterosexual arousal patterns and a total absence of
    any paraphilic disorder. She showed no sexual interest in children.

[164]

Dr. Federoff
    expressed the opinion that the appellant suffered from PTSD because of the
    female genital mutilation as well as physical and sexual abuse she had suffered
    in Nigeria and the death of one of her children during female genital
    mutilation. This, Dr. Federoff said, explained her pre-occupation with the
    genital regions of her children. Incarceration and separation from her family
    exacerbated this pre-existing condition.

[165]

According to Dr.
    Federoff, the risk of re-offence by the appellant was low. He recommended that
    the appellant be treated for PTSD and promptly reunited with her family.

[166]

In discussion
    with the appellants husband, Dr. Federoff learned that he (the husband)
    remained committed to the appellant. The husband retained the images of the
    children that were the subject-matter of the prosecution. From him, Dr.
    Federoff learned, the CAS had approved the husband as the custodian of the
    children.

The Involvement of CAS

[167]

During the
    sentencing proceedings, the trial judge expressed concerns about the absence of
    any report from CAS about custody of the children. She wanted to know about
    this issue before she passed sentence. She indicated that she would be
    surprised if CAS permitted the appellants husband to have custody of the
    children in light of the appellants convictions. The trial judge adjourned the
    sentencing hearing to obtain further information about the position of CAS on
    the custody of the children and indicated that she would not impose sentence in
    the absence of that information.

[168]

The next day,
    the trial Crown advised the trial judge that CAS had been involved in the
    investigation of the offences charged and were aware of the circumstances. CAS
    employees had interviewed the appellants husband and their children. CAS had
    closed its file in 2015. The trial judge then gave her reasons for sentence.

The Reasons for Sentence

[169]

At trial,
    counsel for the appellant sought a sentence of time served coupled with a term
    of probation of 12 months. The trial Crown advocated for a sentence of
    imprisonment of three to four years, less time served in pre-sentence custody,
    to be followed by probation for a term of three years.

[170]

The trial judge
    imposed a total sentence of 36 months in custody to be followed by probation
    for a term of three years. The net custodial sentence, when credit for
    pre-sentence custody had been deducted, was nine months.

[171]

In her reasons
    for sentence the trial judge reviewed the positions counsel had advanced in
    connection with the report of Dr. Federoff. She gave little weight to the
    psychiatrists report and gave several reasons for her finding:

·

treatment bias including treatment of the appellant and others
    reporting similar backgrounds;

·

the absence of collateral support for the history reported by the
    appellant;

·

the appellants scores on the impression management scale and
    self-deception enhancement sub-scale on a Deception Scale test administered to
    her; and

·

the acceptance by Dr. Federoff of the appellants self-report
    without any apparent consideration of her enhanced impression management
    scores.

The Arguments on Appeal

[172]

The appellant
    says that the trial judges management of the sentencing proceedings, coupled
    with her reasons for sentence, disclose a reasonable apprehension of bias,
    which tainted the fairness of the entire trial.

[173]

When the parties
    made their submissions on sentence, the trial judge explained her concern about
    the absence of any report from CAS when counsel for the appellant was advancing
    a submission in support of a suspended sentence and a period of probation for
    12 months. Thereafter, the trial judge rejected the sexual behaviours
    assessment which she had ordered, largely because it was inconsistent with her
    views about the appellants guilt.

[174]

The appellant
    contends that the cumulative effect of several factors rises to the level
    required to establish a reasonable apprehension of bias, which tainted the
    fairness of the proceedings and resulted in a miscarriage of justice. The
    relevant factors include:

i.

the trial judge aggressively pushed for input from CAS which she later
    abandoned on learning that CAS had investigated the family situation and found
    that the children were not at risk;

ii.

the trial judge discounted the opinion of Dr. Federoff because it did
    not coincide with her findings of guilt; and

iii.

the trial judge rejected Dr. Federoffs report as biased because he had
    (and disclosed) an existing treatment relationship with the appellant and other
    survivors of female genital mutilation.

[175]

The respondent
    rejects the appellants claim that these proceedings were tainted by a
    reasonable apprehension of bias because of the way in which the sentencing
    proceedings were conducted, the findings of fact made in those proceedings, or
    on any other basis.

[176]

The respondent
    begins with a reminder about the presumption of impartiality, the strength of
    that presumption, and the requirement that anyone who challenges its
    application, as here, must adduce substantial evidence to establish the
    contrary on a balance of probabilities. The evidence here, the respondent says,
    falls well short of that standard.

[177]

Taking first the
    complaint about seeking CAS input. This request was justified. After all, the
    respondent points out, defence counsel sought a sentence of time served and
    probation for one year. This would inevitably involve contact with the very
    children whom the appellant had photographed in circumstances the trial judge
    had found amounted to a crime. Sentencing was delayed for a day, the
    information from CAS acquired, and sentencing proceeded, a course sought by
    defence counsel in light of the length of pre-sentence custody.

[178]

Turning to the
    rejection of Dr. Federoffs opinion, the respondent says that it was for the
    trial judge to determine what weight, if any, to assign to Dr. Federoffs
    report, as with any evidence adduced in sentencing proceedings. She did so and
    explained why. Her findings are subject to deference. The factors on which she
    relied do not reflect error.

The Governing Principles

[179]

There is a
    presumption that judges will carry out their oath of office to render justice
    impartially. This presumption is ingrained in the fabric of our law. Yet the
    presumption is rebuttable:
R. v. R.D.S
., [1997] 3 S.C.R. 484, at para.
    117.

[180]

As a consequence
    of the presumption of impartiality, as well as its rebuttable nature, a party
    who alleges actual or a reasonable apprehension of bias bears the onus or
    burden of establishing it. The standard of proof required is proof on a balance
    of probabilities:
R.D.S
., at para. 114;
R. v. Nero
, 2016 ONCA
    160, 334 C.C.C. (3d) 148, at para. 31.

[181]

In common usage,
    bias describes a state of mind, one that is in some way predisposed to a
    particular result, or that is closed with respect to a particular issue. Bias
    is a leaning, an inclination, a bent or predisposition towards one side or another,
    or a particular result. It represents a predisposition to decide an issue or
    cause in a certain way, thus not leaving the judicial mind open to persuasion
    or conviction:
R.D.S
., at paras. 105-106.

[182]

The apprehension
    of bias must be reasonable, held by reasonable and right-minded persons
    applying themselves to the question and obtaining the required information
    about it. The test is what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through  conclude:
Committee for Justice and Liberty v. National Energy Board
, [1978] 1
    S.C.R. 369, at p. 394;
R.D.S.
, at para. 111;
Nero
, at para.
    29. The test contains a two-fold objective element: the person considering the
    alleged bias must be reasonable and the apprehension of bias itself must also
    be reasonable in the circumstances of the case:
R.D.S
., at para. 111.

[183]

The inquiry into
    a claim of reasonable apprehension of bias is fact-specific. From cogent
    evidence, what the inquiry must yield is not some mere suspicion of bias but
    rather a real likelihood or probability of bias:
R.D.S
., at para. 112.

The Principles Applied

[184]

I would not give
    effect to this ground of appeal.

[185]

This analysis
    begins with a strong presumption of impartiality which is not easily dislodged.
    The threshold to be met in order to rebut this presumption is high, though not
    insurmountable. It requires cogent evidence and careful consideration since it
    calls into question an element of judicial integrity. Mere suspicion is not
    good enough. What must be shown on a balance of probabilities is a real
    likelihood or probability of bias. This does
not
follow from mere
    rejection of evidence as unreliable. The apprehension of bias must be
    reasonable in the circumstances of the case, taken as a whole. The person
    considering the allegation of bias must also be reasonable, that is to say, an
    informed person, with knowledge of all the relevant circumstances, including
    the traditions of integrity and impartiality that form part of the background
    and apprised also of the fact that impartiality is one of the duties a judge
    swears to uphold.

[186]

In this case,
    the appellant assigns to the task of rebutting the strong presumption of
    judicial impartiality two incidents that occurred during sentencing proceedings
    and argues that they reveal a reasonable apprehension of bias and infected the
    trial proceedings to such an extent as to cause a miscarriage of justice.

[187]

The appellant
    points to nothing in the conduct of the trial proceedings themselves leading to
    the finding of guilt that raises any glimmer of potential bias. In a manner
    reminiscent of the retrospectant chain of reasoning used, the appellant invites
    the inference of prior lack of impartiality from subsequent events. But the
    events she enlists to support this claim are simply not up to the task.

[188]

The trial judge
    sought current information from the CAS in a case involving the appellants
    conduct towards her children. The conduct was the creation of images that
    constituted child pornography. She shared the images with her husband who had
    custody of the children. The evidence disclosed a robust history of deceit on
    the appellants part, to some extent by her husband as well, in relation to our
    immigration laws and deception of the officers charged with the responsibility
    of enforcing those laws. Counsel for the appellant was advocating a
    non-custodial sentence so that the appellant could rejoin her husband and
    children. The combined force of these circumstances justified the trial judges
    request for current CAS information about the children as a relevant sentencing
    factor.

[189]

The trial
    judges request for a sexual behaviour assessment was a legitimate position at
    sentencing. The request did not command acceptance of the contents of the
    report. As with any item of evidence tendered or submission made on sentencing,
    it was for the sentencing judge to evaluate and determine a fit sentence in the
    fact and context-specific inquiry in which she was engaged. She did so. Without
    more, her rejection of Dr. Federoffs opinion does not give rise to a
    reasonable apprehension of bias in the sentencing process, much less taint the
    proceedings as a whole.

[190]

Having found no
    hint of bias in the sentencing proceedings, I would reject this ground of
    appeal.

The Appeal from Sentence

[191]

The appellant advances
    two arguments on her appeal from sentence: the judges bias towards the
    appellant resulted in an unfit sentence, or alternatively the appellants
    sentence is demonstrably unfit. Having already found the judges conduct during
    the sentencing hearing does not give rise to a reasonable apprehension of bias,
    I will limit my reasons to whether the sentence is demonstrably unfit such that
    the probation order should be varied.

[192]

As I explain, I
    would not give effect to this ground of appeal.

Arguments on Appeal

[193]

Appellant submits
    her sentence is unfit because her probation order limits her ability to have
    contact or communicate with her children. The appellant asks this court to vary
    the probation order to remove the following requirements: (1) that the
    appellant obtain permission from CAS before contact or communication with her
    children; (2) that contact and communication must be supervised by someone
    other than the appellants husband; (3) and that CAS approve the supervisor.

[194]

The respondent
    invites us to dismiss the appeal from sentence. The custodial portion of the
    sentence has already been served, thus an assessment of its fitness is moot. In
    any event, its length was dictated by the predominant sentencing objectives of
    deterrence and denunciation and the aggravating factors of a breach of trust
    and the vulnerability of the children whose images formed the subject-matter of
    the charges. The terms or conditions included in the probation order likewise
    do not reflect error. Recall that both parties at trial sought a period of
    probation as all [defence] or part [Crown] of the sentence to be imposed. No
    ground for appellate intervention has been established.

The Governing Principles

[195]

Section 731 of
    the
Criminal Code
describes the circumstances in which a probation
    order may be made. Relevant considerations include:

i.

the age and character of the offender;

ii.

the nature of the offence; and

iii.

the circumstances surrounding the commission of the offence.

See,
Criminal Code
, s. 731(1).

[196]

Section 732.1(2)
    sets out the mandatory terms of a probation order, among them non-communication
    and non-association terms:
Criminal Code
, s. 732.1(2)(a.1). In
    exceptional circumstances these terms may be deleted:
Criminal Code
,
    s. 732.1(2)(a.1)(ii).

[197]

Under s.
    732.2(3)(c), the sentencing court may decrease the period for which a probation
    order is to remain in force. Dispositions made under s. 732.2(3) fall within
    the definition of sentence in s. 673, thus may be reviewed by this court
    under ss. 675(1)(b) and 676(1)(d) of the
Criminal Code
.

[198]

Sentencing
    judges are in the best position to determine a just and appropriate sentence
    that pays heed to the sentencing objectives and principles set out in the
Criminal
    Code
. It is especially so where the sentence is imposed after a contested
    trial. Accordingly, appellate courts accord substantial deference to sentencing
    decisions when exercising their powers of review under s. 687(1) of the
Criminal
    Code
:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras.
    11, 48.

[199]

An appellate
    court is entitled to intervene under s. 687(1) of the
Criminal Code
where the sentencing judge erred in principle, failed to consider a relevant
    factor, or erred in considering an aggravating or mitigating factor, but only
    if it appears from the sentencing judges decision, read as a whole, the error
    had an impact on the sentence ultimately imposed:
Lacasse
, at paras.
    43-44.

The Principles Applied

[200]

The appellant
    has not identified any error in principle, failure to consider a relevant
    factor, or erroneous consideration of an aggravating or mitigating factor that
    had an impact on the sentence imposed, more specifically, on the inclusion,
    length or terms of the probation order. Having considered the fresh evidence
    comprised of several letters and other information about the post-sentencing
    activities and progress of the appellant, I would reject the appellants
    request to vary the probation order.

[201]

Having regard to
R. v. Boudreault
, 2018 SCC 58 (CanLII), the victim fine surcharge must
    be set aside. I would otherwise dismiss the appeal from sentence.

DISPOSITION

[202]

For these
    reasons, I would dismiss the appeal from conviction, grant leave to appeal
    sentence and allow the appeal from sentence to the extent of setting aside the
    victim surcharge imposed at trial; otherwise I would dismiss the appeal from
    sentence.

Released: GRS DEC 06 2019

David Watt
    J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. B.
    Zarnett J.A.


