



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. P.W., 2020 ONCA 301

DATE: 20200515

DOCKET: C64168

Miller, Fairburn and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.W.

Appellant

Richard Litkowski, for the appellant

Scott Patterson, for the respondent

Heard: January 30, 2020

On appeal from the convictions entered
    on June 24, 2016 and the sentence imposed on September 29, 2016 by Justice Dale
    Parayeski of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The main issue raised on this appeal is the
    admissibility of evidence obtained from a search of a residence executed under
    an invalid search warrant. The search resulted in the seizure of three
    computers containing child pornography.

[2]

At trial, the Crown conceded that the warrant to
    search the residence was invalid. Accordingly, the search constituted a breach
    of the appellants rights under s. 8 of the
Charter of Rights and Freedoms
,
    which protects against unreasonable search or seizure. However, after
    undertaking the requisite analysis under s. 24(2) of the
Charter
, the
    trial judge determined that the evidence ought not to be excluded. The trial
    judge was satisfied that the admission of the evidence would not bring the
    administration of justice into disrepute. The appellant was subsequently
    convicted of possession of child pornography and accessing child pornography,
    with the latter conviction stayed pursuant to the principle in
Kienapple v.
    R.
, [1975] 1 S.C.R. 729. He was sentenced to 6 months in jail and 18
    months probation, along with various ancillary orders.

[3]

The appellant appeals against conviction on the
    basis that the trial judge made a number of errors in the s. 24(2) analysis. He
    also appeals a 10-year prohibition order pursuant to s. 161 of the
Criminal
    Code
.

[4]

For the reasons set out below, the appeals are
    dismissed.

A.

Background

[5]

Detective Abrams of the Hamilton Police received
    a report from the Catholic Childrens Aid Society on February 22, 2010. It
    documented an allegation made by L.W., the appellants six-year-old daughter, to
    her mother, Y.Z., about the appellant washing L.W.s bum and private parts
    with his bare hand. The CCAS and the Hamilton Police started a joint
    investigation.

[6]

Detective Abrams received a memorandum from a
    CCAS caseworker, and subsequently spoke with the caseworker by telephone. She also
    interviewed the complainant and her mother. L.W. told Detective Abrams that the
    appellant had been placing his finger in her anus and that he sometimes put it
    up higher than other times. She said that it hurt.

[7]

Y.Z. informed Detective Abrams that in March of
    2006 she had discovered that the appellant had been viewing child pornography
    on his computer. At some point thereafter, the appellant and Y.Z. separated. In
    June of 2006, the appellant voluntarily sought treatment at the Clarke
    Institute with respect to his use of child pornography, and a doctor from the
    Clarke Institute contacted the CCAS on June 13, 2006 to express concerns about
    the appellants sexual interest in girls under the age of 16 years. Thereafter,
    Detective Abrams was told, the appellants access to L.W. and her brother took
    place under the supervision of the CCAS. Later, that condition was withdrawn
    and the appellant was able to have unsupervised access to his children.

[8]

The complainant and her brother told the police
    that the only things present in their fathers home were a bed, a computer
    chair, and three computers. From time to time, the complainant was alone with
    the appellant at his home.

[9]

The appellant was arrested on March 4, 2010 for sexual
    assault. Detective Abrams swore an information to obtain a warrant authorizing
    a search of the appellants residence, and in particular, a search of his
    electronic devices for child pornography. The Information to Obtain set out
    that these searches will afford evidence with respect to the commission of
    offences involving the sexual assault and sexual touching of L.W. Detective
    Abrams deposed that [t]hese items will assist in the sexual assault investigation
    where [L.W.] is a victim. She also deposed that the items would also possibly
    afford evidence of the commission of the offence of child pornography.

[10]

The search warrant was granted. The appellants
    residence was searched and three computers were seized. Pornographic images of
    children were discovered on one or more computers. The police found no
    pornographic images of L.W. or depictions of sexual assault against L.W.

[11]

At trial, counsel for the appellant challenged
    the search warrant on the basis that the affiant, Detective Abrams, had misled
    the issuing justice. The appellant was granted leave to cross-examine the
    affiant. The cross-examination was limited to two areas: (1) what records from
    the CCAS were in the possession of the affiant when the ITO was sworn, and (2)
    the affiants belief that a search of the appellants computers would yield
    evidence of a sexual assault on L.W.

[12]

The affiant agreed that she was only
    investigating allegations related to sexual touching at that time, and not
    child pornography. This is clear from the ITO, where the alleged sexual
    offences against L.W. were the only ones listed as being under active
    investigation. The ITO was also clear that the affiant believed on reasonable
    grounds that the search would afford evidence with respect to those offences.

[13]

Detective Abrams testified on the
voir dire
that
    her investigative objective was to find evidence that would corroborate the
    young complainants account. The following exchanges demonstrate this
    objective:

Q.
         Im going to suggest to you, Officer, that what you were hoping by
    drafting this ITO is that you would find child pornography on the computers,
    correct?

A.
         Part of that is correct, yes. I was hoping I would find pornography of his
    daughter to corroborate her statement is what I was hoping for.



Q.
         [] In your mind, the link between the allegations regarding [L.W.] and
    the offences that you thought the computers would afford evidence in relation
    to, that was you might find child pornography in relation to [L.W.], of his
    daughter?

A.
         Of evidence in relation to a sexual assault against his daughter, yes.

[14]

Although the affiant acknowledged that she had
    not articulated in the ITO her rationale for believing that the appellants
    computers would contain evidence with respect to the commission of the alleged
    sexual offences, the following exchange made the reason for her belief clear:

Q.
         [] You were just, basically, speculating that there might be pictures
    there?

A.
         I wouldnt say I hoped that there would be a victim, no. What I would say
    is that I was looking for evidence that would corroborate his daughters
    allegations of a sexual assault against her, and that was based on previous
    experience, based on training that I had taken, that there would be child
    pornography on computers that somebody with a history of child pornography had.

[15]

When asked during cross-examination what
    evidence from the computers she expected to find, the officer answered, Pornographic
    pictures of the victim. When asked why, she answered:

Because it was a sex  the allegations were
    sexual in nature. The victim was under the age of 16 or and his history with
    the child pornography, the information that was given to me about his
    preference, his sexual preference, as well as cases that I had previously
    worked on involving sexual assault victims and child pornography and courses
    that I had attended to prior to March of 2010.

[16]

The affiant also expressed that she was aware
    the appellant took photographs of his young children that had been posted on
    Facebook, and that he spent time alone with his six-year-old daughter at his
    apartment that contained the computers. She also expressed the view that any
    child pornography contained on the appellants computers could corroborate his
    sexual interest in children.

[17]

At the conclusion of evidence on the s. 8
voir
    dire
, the Crown conceded that there was a s. 8 breach. According to the
    trial Crown, while there were sufficient reasonable grounds for the search
    warrant to have issued, the affiant had failed to properly articulate those
    grounds in the ITO. The Crown characterized the nature of the s. 8 breach as
    technical: a failure to articulate all the reasons underlying her genuine
    belief that a search would yield evidence with respect to the commission of sexual
    assault on L.W.

[18]

The appellant argued that the affiant was instead
    using the allegations made by L.W. to obtain a search warrant to further a child
    pornography prosecution, essentially going on a fishing expedition. He argued
    that the reasons she articulated in support of the search warrant were
    fabrications.

B.

Decision of the Trial Judge

[19]

Applying the test for exclusion of evidence in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge ultimately
    found that the admission of the evidence would not bring the administration of
    justice into disrepute.

[20]

With respect to the seriousness of the
Charter
-infringing
    state conduct, the trial judge rejected the appellants argument that the affiant
    had fabricated her evidence as to what she had in her mind at the time of
    drafting the affidavit. He found that to some extent the officer was
    rationalizing on the stand, but I am not prepared to equate that with lying. He
    concluded:

On balance, while I am not impressed with the
    drafting efforts of the officer, I am not prepared to consider them proof of
    bad faith. Negligence perhaps, but not bad faith. The breach does not reflect
    at all well upon the officer or her training, but it was not egregious. I am
    aware that good faith is but one factor in the analysis; however, it is not an
    insignificant one.

[21]

The trial judge noted that he did not believe
    the breach was committed on the basis of either unreasonable error or ignorance
    as to the scope of authority: It would be going [beyond] the evidence to affix
    such labels to what happened here. I do not imagine that the Supreme Court of
    Canada [in
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 55,]
    intended that any police error is automatically to be considered proof of bad
    faith.

[22]

With respect to the impact of the breach on the
Charter
-protected
    interests of the appellant, the trial judge found it to be significant.
    Finally, the trial judge found societys interest in an adjudication on the
    merits to be strong given the reliability of the images and their centrality to
    the Crowns case.

C.

Issues on Appeal

[23]

On his conviction appeal, the appellant accepts
    that the trial judge articulated the correct legal test with respect to a s.
    24(2) analysis, but argues that the trial judge made four errors in applying
    that test:

i)

Finding the officer was perhaps negligent and
    that the officers conduct does not speak well of her or her training but not
    finding such conduct constitutes a serious violation that favours exclusion of
    the evidence;

ii)

Understating the impact of the
Charter
violation
    on the appellants interests;

iii)

Overemphasizing the reliability of the evidence and
    its necessity to prove the Crowns case; and

iv)

Failing to follow
dicta
from this court
    that where the first two
Grant
factors favour exclusion, the states
    interest in an adjudication on the merits will seldom tip the balance in favour
    of admissibility.

[24]

On sentence, the appellant requests that the
    10-year s. 161 order be substituted with a five-year order. He argues that the
    trial judge abused his discretion in giving a 10-year order.

D.

Conviction Appeal

[25]

The trial judges s. 24(2) conclusion is
    entitled to deference absent an error in principle, a palpable and overriding
    factual error, or an unreasonable determination:
Grant
, at paras. 86,
    127;
R. v. Mian,
2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77;
R.
    v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 39;
R. v. Buchanan
,
    2020 ONCA 245, at para. 21. It is not the role of an appellate court to re-weigh
    the factors in the
Grant
analysis:
Mack
, at para. 41. As
    explained below, we do not agree that the trial judge made any reviewable error
    in his s. 24(2) analysis.

[26]

In
Grant
, the Supreme Court set out the
    framework for assessing whether evidence obtained in a manner that breached a
Charter
right should be excluded. The framework requires trial judges to consider the
    seriousness of the
Charter
-infringing state conduct, the impact of the
    breach on the
Charter
-protected interests of the accused, and the
    public interest in having an adjudication on the merits.

(1)

Seriousness of the
Charter
-Infringing State Conduct

[27]

The appellant argues that the trial judge found
    the affiants drafting of the ITO to be negligent, and then erred by treating that
    negligence as equivalent to good faith, contrary to
R. v. Le
, 2019 SCC
    34, 375 C.C.C. (3d) 431, at para. 143. He argues that the affiant was
    negligent, that this negligence approached bad faith, and that it ought to be
    treated in the same register as a finding of bad faith.

[28]

We do not agree. What matters at this stage of
    the analysis is that the trial judge appropriately judged the nature of the
    conduct in question. As Doherty J.A. explained in
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 41, [p]olice conduct can run
    the gamut from blameless conduct, through negligent conduct, to conduct
    demonstrating a blatant disregard for
Charter
rights [] What is
    important is the proper placement of the police conduct along that fault line,
    not the legal label attached to the conduct. In any event, the trial judge did
    not excuse the affiants poor drafting on the basis that she wrote the ITO in good
    faith. He was aware that the affiants drafting fell short of what was needed by
    the issuing justice; he was critical of it, finding that it amounted to [n]egligence
    perhaps. But he rejected the submission that the affiant fabricated her
    evidence in cross-examination, and he accepted her testimony that she believed
    the searches of the appellants computers could further her investigation of
    L.W.s complaints.

[29]

The nature of the problem with the drafting of
    the ITO was not that it was misleading, but that its reasoning was elliptical,
    leaving out some propositions that explained why the affiant concluded there
    were reasonable grounds to believe there could be child pornography on one or
    more of the computers in the appellants apartment, and why, in these
    particular circumstances the presence of child pornography on the computers
    would further the investigation into the alleged sexual assault of the
    appellants young child.

[30]

Section 487(1)(b) of the
Criminal Code
allows a warrant to issue if there are reasonable grounds to believe that
    there is in a building, receptacle, or place [] anything that there are
    reasonable grounds to believe will afford evidence with respect to the
    commission of an offence. The meaning of evidence with respect to the
    commission of an offence was explained in
CanadianOxy Chemicals Ltd. v.
    Canada (Attorney General)
,
[1999] 1 S.C.R. 743, at para. 15, as

anything relevant or rationally connected
    to the incident under investigation, the parties involved, and their potential
    culpability.

[31]

In the circumstances of this case, we do not
    accept that the authorization to search the appellants computers was nothing
    more than a fishing expedition. Although he had sought treatment, the appellant
    had a known previous predilection for child pornography relating to females
    under 16 years of age. While his treatment at the Clarke Institute had ended,
    the appellant had been transferred to a counsellor in the community and, as the
    affiant said in the ITO, [t]he name of that counsellor and the status of that
    treatment is unknown at this time.

[32]

Moreover, the appellant had been previously
    barred from seeing the complainant other than in the presence of another adult because
    a physician from the Clarke Institute had told the CCAS that there was a
    concern with the appellants sexual interest in girls under the age of 16
    years and that he posed a risk to young girls in that age group. There were
    three computers in the apartment. He was alone in that apartment with the young
    complainant from time to time. She alleged that at least some of the sexual
    assaults took place at that location.

[33]

In the unusual circumstances of this case, it
    was open to the police to seek prior authorization to search the computers for
    the very reasons articulated by the affiant on the
voir dire
.

The
    appellant had an established problem relating to child pornography; the appellant
    had previously received limited access to the young child because of those
    difficulties for which he had sought treatment; the child was alleging that she
    had been sexually assaulted by the appellant while alone in his apartment; and
    the alleged conduct was in proximity to the computers to be searched. In these
    circumstances, although she failed to articulate her reasoning, the affiant had
    reasonable grounds to believe that there would be evidence of child pornography
    on the computers and that this evidence would be rationally connected to the
    investigation into the alleged conduct relating to L.W.

[34]

Clearly, any child pornography images of the
    young child would provide evidence of the alleged offences. Moreover, the
    affiant believed that the presence of any child pornography on the appellants
    computers would assist the police in assessing the plausibility of the
    complainants account because it would go some distance towards establishing
    the appellants continued sexual interest in young girls. Although that
    evidence may not have been admissible at trial, search warrants are not
    designed to obtain only admissible evidence. The affiant was concerned with
    ensuring the veracity of the complainants account. She determined that the
    presence of child pornography on the appellants computer could assist in satisfying
    herself of the childs version of events. Again, in the unusual circumstances
    of this case, that rationale is sustainable.

(2)

Impact on the
Charter
-Protected Interests of the Appellant

[35]

The appellant observes that the second line of
    inquiry under
Grant,
involving the seriousness of the impact of the
    breach on his
Charter-
protected interests, was significant,
    militating in favour of exclusion. On our reading of the reasons, the trial
    judge agreed with this assessment, concluding that the impact on the appellants
Charter
rights was indeed significant. Accordingly, there is no basis
    to find that the trial judge erred in this analysis.

(3)

Public Interest in Adjudication on the Merits

[36]

The appellant advances two arguments related to
    this final branch of the
Grant
test: (1) the trial judge
    overemphasized the reliability of the evidence in deciding to admit it, and (2)
    the trial judge failed to follow this courts
dictum
from
R. v. McGuffie
,
    2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, that where the first two
    branches of the
Grant
inquiry favour exclusion, the third inquiry will
    seldom tip the balance in the other direction.

[37]

As we find no error in the trial judges conclusion
    on the first branch of the
Grant
analysis, the
McGuffie
argument
    fails.

[38]

With respect to overreliance on the reliability
    of the evidence of child pornography on the appellants computers, the
    appellant effectively asks this court to redo the balancing that was properly
    the domain of the trial judge. The appellant has not identified any basis which
    would entitle us to do so.

[39]

Accordingly, the conviction appeal is dismissed.

E.

Sentence Appeal

[40]

The appellant seeks leave to appeal a portion of
    his sentence, namely the order under s. 161 of the
Criminal Code
imposed for a 10-year period. The appellant submits that the length of the
    order is excessive considering that: (1) the appellant has no prior criminal
    record and has a positive employment history; (2) in 2005, he demonstrated some
    measure of insight into the issues leading to the commission of the offences by
    seeking treatment at the Clarke Institute; (3) the passage of 6 years between
    the charges and the disposition of the case; and (4) the impact of the criminal
    process on the appellant. He seeks a s. 161 order of 5 years.

[41]

The imposition of a s. 161 order is
    discretionary, and this court should not interfere absent an error in principle
    or the imposition of an order that is demonstrably unfit and unreasonable in
    the circumstances:
R. v. Schulz
, 2018 ONCA 598, 142 O.R. (3d) 128, at
    para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537. The appellant has
    not identified any basis to interfere with the s. 161 order, and we would
    decline to do so.

F.

Disposition

[42]

The appeals against conviction and sentence are dismissed.

B.W. Miller J.A.

Fairburn J.A.

Thorburn J.A.


