



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. West, 2020 ONCA 473

DATE: 20200722

DOCKET: C65919

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven West

Appellant

Janani
    Shanmuganathan, for the appellant

Bradley
    Reitz, for the respondent

Heard: January 21,
    2020

On appeal from the convictions entered on
    June 26, 2018 and the sentence imposed on November 5, 2018, by Justice Bernd E.
    Zabel of the Ontario Court of Justice.

Tulloch
    J.A.:

I.

OVERVIEW

[1]

The appellant, Steven West, was convicted of
    accessing, possession of, and distribution of child pornography.

[2]

He appeals his conviction on the basis that his
    rights under s. 8 of the
Charter
were infringed and the evidence against
    him should be excluded pursuant to s. 24(2) of the
Charter
.

[3]

For the following reasons, I would allow the
    appeal.

II.

facts and procedural history

[4]

At some point between the dates of August 21,
    2016 and September 19, 2016, an image of child pornography was uploaded as the
    profile picture for an account on Kik, an instant messaging application for mobile
    devices.

[5]

The image was detected by Kik and reported to
    the National Child Exploitation Coordination Centre, which proceeded to notify
    the Hamilton Police Service. The report contained the following pertinent details:
    the image had been uploaded between August 21, 2016 and September 19, 2016; it
    had been uploaded to an account with the username mikeandvikes, which had
    been registered on August 14, 2016; the image had been uploaded by an Android
    device, a Samsung Model SM-T530NU; and the first and last Internet Protocol
    (IP) addresses to be associated with the use of the account were 24.141.35.79
    (79), and 24.141.102.67 (67), respectively. The report also included disclaimers
    stating that the information it contained had not been verified by Kik.

[6]

From the report, the police were able to
    determine that both IP addresses belonged to Cogeco Cable and that they were
    leased to users in Hamilton, Ontario. The police sent a preservation demand to
    Cogeco, requesting that it preserve any subscriber information associated with
    the two IP addresses. Cogeco agreed to do so with regards to the second IP
    address, 67, but noted that the records for the first IP address, 79, were no
    longer on file.

[7]

Detective Constable Jeremy Miller, a police officer
    since 2002, drafted an Information to Obtain (ITO) for a general production
    order under s. 487.014 of the
Criminal Code
, R.S.C. 1985, c. C-46, which
    was granted on December 20, 2016. The affidavit appended to the ITO stated
    that the information set out herein constitutes the
grounds to suspect

    that the subscriber(s) committed the offences of distribution and possession of
    child pornography, contrary to ss. 163.1(3) and 163.1(4) of the
Criminal
    Code
(emphasis added).

[8]

Pursuant to the production order, Cogeco
    provided the subscriber information associated with the second IP address. The
    information revealed that the subscriber was Steve West, located at 46 Longwood
    Road, North, Hamilton. Further investigation confirmed that 46 Longwood was a
    residence, and that Steven Todd West was one of the owners.

[9]

Using this information, the police sought a
    warrant to search the home for the following: electronic devices; stored data
    capable of being read by a computer; photographic film, digital images, and
    video; computer files or documents associated with Steven West or the
    mikeandvikes account; and any cellular telephones capable of accessing the
    Internet or storing images or video. The warrant was issued on February 7, 2017,
    authorizing a search on February 22, 2017.

[10]

The search led to the seizure of digital devices
    and media, including a total of 19,687 files containing child pornography, and information
    showing that the appellant was the owner of the mikeandvikes Kik account. Of
    the files obtained, 10,804 were unique (i.e., not duplicates of other files).
    The files were found on five different devices: two laptop computers, two cell
    phones, and a USB drive.

[11]

The appellant was subsequently arrested and
    charged with possession of child pornography, distribution of child
    pornography, and accessing child pornography, contrary to ss. 163.1(4),
    163.1(3), and 163.1(4.1) of the
Criminal Code
.

[12]

Prior to his trial, the appellant brought a
Charter
application, alleging that there were insufficient grounds for the issuance of
    both the production order and search warrant. The production of his subscriber
    information and the search of his home were therefore invalid and constituted a
    breach of his rights under s. 8 of the
Charter
. He sought an order
    excluding all of the evidence pursuant to s. 24(2) of the
Charter
.

[13]

The trial judge dismissed the application,
    finding no s. 8 breach. In arriving at this conclusion, he found that the
    information provided by Kik was probably accurate and that the search warrant
    ITO was comprehensive, reliable, reasonable, and sufficient to permit the
    issuance of the warrant. He also found that sufficient information was
    presented to establish a
reasonable suspicion
permitting the issuance of
    the production order (emphasis added).

[14]

With the evidence admitted, the Crowns case was
    read in on consent and a finding of guilt was made against the appellant on
    each count.

[15]

The appellant was sentenced to a global sentence
    of three years imprisonment. The trial judge noted that while the appellant
    was a first-time offender and had expressed remorse and regret for his actions,
    he lacked insight into why he had committed the offences. The large number of
    files and disturbing nature of the images were aggravating factors. In light of
    the paramount principles of denunciation and deterrence, as well as the fact
    that the viewing and possession of child pornography perpetuates the violence
    enacted against children, a sentence of three years imprisonment was deemed fit.

III.

Issues on appeal

[16]

The appellant raises four issues on his
    conviction appeal:

(1)

Was the production order validly issued?

(2)

Was the search warrant validly issued?

(3)

Was the failure of the police to include Kiks
    disclaimer about the lack of verification of the report information fatal to both
    ITOs?

(4)

If the police breached the appellants s. 8
    rights, should the evidence be excluded pursuant to s. 24(2) of the
Charter
?

[17]

The appellant also appeals his sentence on the
    basis that the trial judge failed to adequately consider the principle of
    parity. However, as I would allow the conviction appeal, there is no need to
    address this issue.

IV.

ANALYSIS

(1)

Was the production order validly issued?

[18]

The appellant submits that the production order should
    not have been issued as the ITO used to obtain the order was predicated on the
    wrong legal test.

[19]

Section 487.014 of the
Criminal Code
provides the authority under which a valid production order can be issued. It
    reads as follows:

(1) Subject to sections 487.015 to 487.018, on
ex parte
application made by a peace officer or public officer, a
    justice or judge may order a person to produce a document that is a copy of a
    document that is in their possession or control when they receive the order, or
    to prepare and produce a document containing data that is in their possession
    or control at that time.

Conditions for making order

(2) Before making the order, the justice or judge
    must be satisfied by information on oath in Form 5.004 that there are
reasonable
    grounds to believe
that

(a) an offence has been or will be committed
    under this or any other Act of Parliament; and

(b) the document or data is in the persons possession
    or control and will afford evidence respecting the commission of the commission
    of the offence. [Emphasis added.]

[20]

Recently, in
R. v. Vice Media Canada Inc.
,
    2017 ONCA 231, 137 O.R. (3d) 263, affd 2018 SCC 53, [2018] 3 S.C.R. 374,
    Doherty J.A. outlined the general principles governing the issuance of production
    orders. He stated, at para. 28:

A production order under s. 487.014 of the
Criminal
    Code
is a means by which the police can obtain documents, including
    electronic documents, from individuals who are not under investigation. The
    section empowers the justice or judge to make a production order if satisfied,
    by the information placed before her, that there are
reasonable grounds to believe
that: (i) an offence has been or will be committed; (ii) the document or data
    is in the persons possession or control; and (iii) it will afford evidence of
    the commission of the named offence. If those three conditions exist, the
    justice or judge can exercise her discretion in favour of granting the
    production order. [Emphasis added.]

[21]

In the case at bar, the affiant, Detective Constable
    Miller, swore the following in the affidavit to obtain the production order:

I believe that the information set out herein
    constitutes the
grounds to suspect
that Cogeco Cable subscriber(s) with
    the internet protocol (IP) addresses of  [Emphasis added.]

[22]

Detective Constable Miller misstated the
    standard another four times throughout his affidavit. He never asserted that he
    had evidence to satisfy the actual standard for the issuance of the production
    order  reasonable grounds to believe. Despite this clear flaw, the issuing
    justice authorized the production order.

[23]

The error was also missed by the trial judge. In
    fact, the trial judges conclusion for upholding the production order tracked
    the wording of the affiant, asserting that the ITO presented sufficient
    information to establish a reasonable suspicion permitting the issuance of the
    production order. Beyond this clear error, the trial judges reasons were also
    otherwise inadequate, as they provided no substantive analysis. The trial judge
    thus failed to properly carry out his role of determining whether the issuing
    justice could have concluded that the statutory threshold was met:
R. v.
    McNeill
, 2020 ONCA 313, at para. 30.

[24]

In light of the error, no deference is owed to the
    trial judges decision:
R. v. Cusick
, 2019 ONCA 524, 146 O.R. (3d) 678, at
    paras. 41, 100. Rather, it is now this courts role to consider afresh whether
    there was a basis on which the production order could have issued.

[25]

In my view, it was an error for the issuing
    justice to issue the order, given that the officer never subjectively asserted
    that he had the grounds necessary to satisfy the statutory requirements:
R.
    v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-251. There is no way to
    reasonably read the ITO and come away with any conclusion other than that there
    were reasonable grounds to suspect that an offence had been committed, that the
    information sought was in a persons control, and that the information would
    afford evidence of the commission of the offence. This is insufficient to
    permit the issuance of a production order.

[26]

The production of the appellants subscriber
    information thus amounted to an unauthorized search and a breach of his rights
    under s. 8 of the
Charter
:
R. v. Spencer
, 2014 SCC 43, [2014] 2
    S.C.R. 212, at paras. 66, 74.

(2)

Was the search warrant validly issued?

[27]

In light of my conclusion that the production
    order could not have issued, it is necessary to assess whether, if the
    information obtained pursuant to the production order is excised from the ITO
    for the search warrant, the warrant could still have been issued:
Spencer
,
    at para. 74;
R. v. Mahmood
, 2011 ONCA 693, 107 O.R. (3d) 641, at para.
    116, leave to appeal refused, [2012] S.C.C.A. No. 111.

[28]

In reviewing the ITO, it is clear that the
    warrant could not have been issued as, without the subscriber records, the
    police would not have been aware that the appellant was associated with the
    second IP address. Without this information, the police would not have been
    able to provide a location for the search or any details regarding the specific
    target. Under these circumstances, the statutory requirements under s. 487(1)
    could not have been met, as there would be no building, receptacle or place
    to search. The search of the appellants home and electronic devices was
    therefore unlawful and a violation of the
Charter
:
Spencer
, at
    para. 74.

(3)

Was the failure of the police to include Kiks disclaimer about the
    lack of verification of the report information fatal to both ITOs?

[29]

Given my earlier findings, it is not necessary
    to address this issue.

(4)

If the police breached the appellants s. 8 rights, should the
    evidence be excluded pursuant to s. 24(2) of the
Charter
?

[30]

The trial judge did not find a breach of s. 8
    and, therefore, did not consider the question of whether the evidence obtained
    in violation of the appellants
Charter
rights should be excluded under
    s. 24(2) of the
Charter
. In my view, the evidentiary record in this
    case is sufficient to permit this court to undertake the analysis:
R. v.
    Pilon
, 2018 ONCA 959, 144 O.R. (3d) 54, at para. 43;
R. v. Herta
,
    2018 ONCA 927, 143 O.R. (3d) 721, at para. 60.

[31]

The question is whether the admission of the
    evidence would bring the administration of justice into disrepute:
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. In answering this question, the
    court must have regard to: 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: at para. 71.

[32]

The first line of inquiry considers the
    seriousness of the
Charter
infringing conduct and whether it rises to a
    level of severity such that the courts should dissociate themselves from the
    conduct by excluding any evidence it produced:
Grant
, at para. 72;
R.
    v. Thompson
, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 83. The courts
    should dissociate themselves from evidence obtained through a negligent breach
    of the
Charter
:
R. v. Le
, 2019 SCC 34, at para. 143.

[33]

In this case, Detective Constable Miller was
    negligent in failing to apply the correct legal standard in his affidavit. The standard
    of reasonable grounds to believe, as outlined in s. 487.014 of the
Criminal
    Code
came into force on March 9, 2015: Bill C-13,
An Act to amend
    the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual
    Legal Assistance in Criminal Matters Act
, 2nd Sess., 41st Parl., 2013-2014
    (assented to 9 December 2014). The production order in this case was signed on
    December 20, 2016, more than a year after the amendments took effect. By this
    time, the requisite legal standard was well established and Detective Constable
    Miller should have been aware of this. This factor militates in favour of
    exclusion.

[34]

The second line of inquiry under
Grant
calls for an evaluation of the extent to which the breach actually undermined
    the interests protected by the right infringed:
Grant
, at para. 76. In
    the context of s. 8 of the
Charter
, the interests at issue are those of
    privacy, and more broadly, human dignity: at para. 78. The seriousness of a
    breach resulting from an unreasonable search will reflect the level of privacy
    to which the individual was entitled to reasonably expect in the circumstances:
    at para. 78. Pursuant to the concept of discoverability, however, the impact of
    an illegal search on an individuals privacy and dignity will be lessened where
    the police could have demonstrated to a judicial officer that they had
    sufficient grounds to conduct a valid search:
R. v. Côté
, 2011 SCC 46,
    [2011] 3 S.C.R. 215, at para. 72.

[35]

In this case, the impact on the accuseds
    interests was serious. The police searched the appellants subscriber
    information, his home, and his electronic devices. All of these areas attract a
    heightened expectation of privacy:
Spencer
, at paras. 66, 78;
R. v.
    Adler
, 2020 ONCA 246, 62 C.R. (7th) 254, at para. 33, citing
R. v.
    Silveira
, [1995] 2 S.C.R. 297, at para. 140, and
R. v. Morelli
, 2010
    SCC 8, [2010] 1 S.C.R. 253, at para. 2.

[36]

The Crown, however, takes the position that,
    despite the error in the affidavit, the information available to the police,
    including the information contained in the Kik report, provided reasonable
    grounds to believe that a crime had been committed, that Cogeco had control of
    certain subscriber information, and that, that information would afford
    evidence of the commission of the crime. While this argument was put forward by
    the Crown on the first ground of appeal, it effectively amounts to an argument
    that the impact of the breach was lessened in light of the fact that the evidence
    was discoverable, as the police had the requisite grounds to obtain the
    production order and, by extension, the search warrant.

[37]

I do not accept this argument.

[38]

The Kik report indicated that, at some unknown
    point between August 21, 2016 and September 19, 2016, a Samsung Model SM-T530NU
    was used to upload an image of child pornography as the profile picture to the
    mikeandvikes account. The report provided no information regarding the IP
    address associated with the upload. The only IP address information included was
    the first and last IP addresses to access the account. Cogeco subsequently indicated
    that the subscriber information associated with the first IP address was no
    longer on file. In effect, then, the only information available was that the second
    IP address, which was associated with an Internet account (as opposed to a
    particular device), had accessed the Kik account on September 19, 2016, using
    an unknown device. Put differently, the only information the police had was
    that an unknown person, using an unknown device, had accessed the account from
    the 67 IP address on September 19, 2016.

[39]

This was not a sufficient evidentiary basis to
    provide a credibly-based probability that the production of the subscriber
    information would afford evidence of the commission of the offence:
McNeill
,
    at para. 32. More was needed to establish a connection between the alleged
    offence and the subscriber information sought. Additional evidence was
    particularly important in this case, as it was not clear whether the IP address
    information provided could be relied upon, as the report stated that the IP
    address information collected isnt verified by Kik. In his expert testimony,
    Martin Musters explained that further investigative techniques were available
    to the police, including requesting the precise IP address associated with the
    upload of the image, and inquiring as to the IP address associated with the
    email address used to register the account. These steps were readily available
    and may well have narrowed the focus of the investigation. In the absence of
    any evidence beyond the unconfirmed information that the Kik account had been
    accessed using a particular Internet account, the police were effectively
    fishing for a connection to the offence. The appellants subscriber information
    was thus not discoverable and the impact of the unlawful search on his
Charter
-protected
    interests was not diminished. This factor favours exclusion.

[40]

Turning to the final line of inquiry, the court
    must determine whether the truth-seeking function of the criminal trial
    process would be better served by admission of the evidence, or by its
    exclusion:
Grant
, at para. 79. In addressing this question, two
    relevant considerations are the reliability of the evidence obtained, and its
    importance to the Crowns case: at paras. 81, 83. In this case, the evidence is
    both reliable and critical to the Crowns case. This factor weighs in favour of
    admission.

[41]

The final stage of the analysis under s. 24(2)
    involves balancing the factors under the three lines of inquiry to determine
    whether the admission of the evidence would bring the administration of justice
    into disrepute. While this balancing is not a mathematical exercise, where the
    first two inquiries militate in favour of exclusion, the third inquiry will
    seldom, if ever, tip the balance in favour of admissibility:
R. v. Harrison
,
    2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36;
R. v. McSweeney
, 2020
    ONCA 2, 384 C.C.C. (3d) 265, at para. 81;
Thompson
, at paras. 106-107.

[42]

In this case, the first and second lines of
    inquiry provide a strong case for exclusion. The state conduct was negligent
    and it had a serious impact on the appellants
Charter
rights. While
    this is a case where exclusion will gut the Crowns case, this result is
    appropriate. Admission of the evidence would bring the administration of
    justice into disrepute.

[43]

For these reasons, the evidence obtained
    pursuant to both the production order and search warrant should be excluded
    under s. 24(2) of the
Charter
.

V.

disposition

[44]

In all the circumstances, I would allow the
    appeal and enter acquittals on all counts.

Released: D.W. July 22, 2020

M.
    Tulloch J.A.

I
    agree. David Watt J.A.

I
    agree. Gary Trotter J.A.


