Her Majesty the Queen (appellant) v. Ronald Jones (respondent) (C52480; 2011 ONCA 632) Indexed As: R. v. Jones (R.)

Transcription

1 Her Majesty the Queen (appellant) v. Ronald Jones (respondent) (C52480; 2011 ONCA 632) Indexed As: R. v. Jones (R.) Ontario Court of Appeal MacPherson, Blair and Epstein, JJ.A. October 11, Summary: The police seized the accused's computer under a warrant respecting a fraud investigation. While looking for evidence of fraud, the police found images of child pornography (initial search). Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation. The accused was charged with possession of child pornography. The trial judge concluded that the accused's s. 8 Charter rights were violated, the evidence should be excluded and the charges dismissed. The Crown appealed. The Ontario Court of Appeal held that the seizure of the images found in the initial search did not constitute a breach of the accused's s. 8 Charter rights. It followed that those images were admissible and no s. 24(2) issue arose with respect to them. However, the seizure of the video files containing child pornography was not authorized by the warrant, under the plain view doctrine or under s. 489 of the Criminal Code (seizure of items not specified in the warrant) and was, therefore, contrary to s. 8 of the Charter. The court, however, applying the Grant analysis, ruled that the video files should not be excluded under s. 24(2) of the Charter. In the result, the court allowed the appeal, set aside the acquittal and ordered a new trial. Civil Rights - Topic 1508 Property - Expectation of privacy - Computer files - [See Civil Rights - Topic 8368]. Civil Rights - Topic 1641 Property - Search and seizure - General - The Ontario Court of Appeal reviewed the general principles underlying the protection against search and seizure offered by s. 8 of the Charter - See paragraphs 18 to 22. Civil Rights - Topic 1646 Property - Search and seizure - Unreasonable search and seizure defined - The police seized the accused's computer under a warrant respecting a fraud investigation - While looking for evidence of fraud, the police found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - The Ontario Court of Appeal held that the seizure of the images found in the initial search did not constitute a breach of the accused's s. 8 Charter rights - However, the seizure of the video files containing child pornography was not authorized by the warrant, under the plain view doctrine or under s. 489 of the Criminal Code (seizure of items not specified in the warrant) and was, therefore, contrary to s. 8 of the Charter - See paragraphs 1 to 75.

2 Civil Rights - Topic 1657 Property - Search and seizure - Search with warrant - Plain view doctrine - The Ontario Court of Appeal discussed whether the plain view doctrine should apply in circumstances involving a computer search under a warrant - See paragraphs 59 to 70. Civil Rights - Topic 1657 Property - Search and seizure - Search with warrant - Plain view doctrine - Section 489 of the Criminal Code authorized the seizure of things in addition to those things specified in a warrant under certain circumstances - The Ontario Court of Appeal opined that s. 489 was not a codification of the plain view doctrine - See paragraph 58. Civil Rights - Topic 1657 Property - Search and seizure - Search with warrant - Plain view doctrine - The police seized the accused's computer under a warrant respecting a fraud investigation - While looking for evidence of fraud, the police found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - At issue was whether the police were entitled to seize the files containing child pornography under the plain view doctrine and/or s. 489 of the Criminal Code (seizure of things not specified in the warrant) - The Ontario Court of Appeal agreed that the plain view doctrine and/or s. 489 justified the search and seizure of the images of child pornography found in the initial search - That seizure did not violate s. 8 of the Charter - However, the court stated that it would not extend the plain view doctrine to justify the police seizure and ensuing use by the Crown of the subsequently discovered video files - Nor did s. 489 assist in this respect - For the purpose of this case, the reach of s. 489 stopped at the discovery of the image files - Thus the seizure of the video files was contrary to s. 8 of the Charter - See paragraphs 53 to 75. Civil Rights - Topic 8368 Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police seized the accused's computer under a warrant respecting a fraud investigation - While looking for evidence of fraud, the police found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - The Ontario Court of Appeal held that the seizure of the images found in the initial search did not constitute a breach of the accused's s. 8 Charter rights - However, the seizure of the video files containing child pornography was not authorized by the warrant, under the plain view doctrine or under s. 489 of the Criminal Code (seizure of items not specified in the warrant) and was, therefore, contrary to s. 8 of the Charter - The court, applying the Grant anlaysis, ruled that the video files should not be excluded under s. 24(2) of the Charter - See paragraphs 75 to 103. Criminal Law - Topic 3045 Special powers - Search warrants - Scope of - The police seized the accused's computer under a warrant respecting a fraud investigation and found images of child pornography

3 (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - The Crown argued that the warrant authorized the search for evidence of child pornography as well as fraud because a computer was an indivisible object which, like pieces of physical evidence, could be tested and inspected in whatever way the police deemed necessary once lawfully seized under the warrant - The Crown argued further that the right to seize a computer would be a hollow without the ability to examine its contents - The Ontario Court of Appeal rejected the Crown's arguments - The court could not accept that the broad right to examine all computer contents in search of evidence of fraud pursuant to the warrant was sufficient to authorize a further search for evidence of child pornography without the police obtaining a second warrant - See paragraphs 25 to 52. Criminal Law - Topic 3045 Special powers - Search warrants - Scope of - The police seized the accused's computer under a warrant respecting a fraud investigation and found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - At issue was whether the warrant authorized the search for child pornography - The Ontario Court of Appeal stated that it did not accept "... that the right to examine the entire contents of a computer for evidence of one crime (fraud, in this case) carries with it the untrammeled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint - even where, as here, the warrant may properly authorize unlimited access to the computer's files and folders in order to accomplish its search objectives. A computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant" - See paragraph 42. Criminal Law - Topic 3046 Special powers - Search warrants - Validity of - General - The police seized the accused's computer under a warrant respecting a fraud investigation and found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - The accused argued that the warrant was invalid on its face for purposes of authorizing further searches for child pornography because it did not place any time or content limitations on the search of the computer - The Ontario Court of Appeal held that warrant was not too broad - The warrant did not authorize a comprehensive review of the entire contents of the accused's computer without limitation - The warrant placed restrictions on the type of evidence that could be sought (i.e., it authorized a search and seizure in respect of fraud) - The lack of a stated time frame within which the police were entitled to examine the dated files on the computer did not affect the warrant's validity, because the warrant was quite clear and focussed with respect to the targets of the computer search - See paragraphs 23 and 24 and 29 to 34. Criminal Law - Topic 3163

4 Special powers - Power of seizure - Extent of power (incl. things not specified in warrant) - [See second and third Civil Rights - Topic 1657]. Cases Noticed: R. v. Law - see R. v Canada Inc. et al. R. v Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 14]. R. v. Weir (D.T.) (2001), 281 A.R. 333; 248 W.A.C. 333; 156 C.C.C.(3d) 188; 2001 ABCA 181, refd to. [para. 14]. R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 19]. Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 20]. R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 21]. R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 21]. R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 22]. R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 27, footnote 4]. R. v. Du (B.B.), 2004 ABQB 849, refd to. [para. 34]. R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 252 C.C.C.(3d) 273; 2010 SCC 8, refd to. [para. 37]. R. v. Giles, [2007] B.C.J. No (B.C.S.C.), refd to. [para. 41]. R. v. Manley (M.) (2011), 275 O.A.C. 81; 2011 ONCA 128, refd to. [para. 44]. United States v. Williams (2010), 592 F.3d 511 (4th Cir.), cert. denied (2010), 131 S. Ct. 595; 178 L.Ed.2d 434, refd to. [para. 44]. R. v. DeJesus (N.), [2010] O.A.C. Uned. 457; 2010 ONCA 581, refd to. [para. 45]. R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 45]. R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200, refd to. [para. 45]. R. v. Rodgers - see R. v. Jackpine (R.). R. v. Dore (D.) (2002), 162 O.A.C. 56; 166 C.C.C.(3d) 225 (C.A.), refd to. [para. 45]. R. v. Spindloe (M.), [2002] 5 W.W.R. 239; 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8; 2001 SKCA 58, refd to. [para. 56]. R. v. Fawthrop (L.) (2002), 161 O.A.C. 350; 166 C.C.C.(3d) 97 (C.A.), refd to. [para. 56]. R. v. Bottineau (E.) et al. (2011), 276 O.A.C. 173; 2011 ONCA 194, refd to. [para. 58]. R. v. Bishop (C.J.H.), 2007 ONCJ 441, refd to. [para. 59]. United States v. Comprehensive Drug Testing Inc. (2009), 579 F.3d 989 (9th Cir.), revised (2010), 621 F.3d 1162 (9th Cir.), refd to. [para. 60]. United States v. Tamura (1982), 694 F. 2d 591 (9th Cir.), refd to. [para. 61, footnote 5]. United States v. Carey (1999), 172 F.3d 1268 (10th Cir.), refd to. [para. 69]. United States v. Turner (1999), 169 F.3d 84 (1st Cir.), refd to. [para. 69]. R. v. Harris (M.) (2007), 228 O.A.C. 241; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 79].

5 R. v. Lefave, [2003] O.J. No (Sup. Ct.), refd to. [para. 84]. Statutes Noticed: Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 18]; sect. 24(2) [para. 76]. Criminal Code, R.S.C. 1985, c. C-46, sect. 489 [para. 57]. Authors and Works Noticed: Gold, Alan, Applying Section 8 in the Digital World: Seizures and Searches, Presentation at the Seventh Annual Six-Minute Criminal Defence Lawyer Program (Sponsored by the Law Society of Upper Canada), p. 3-2 [para. 68]. Counsel: Susan Magotiaux, for the appellant; Dale Ives, for the respondent. This appeal was heard on April 26, 2011, before MacPherson, Blair and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Blair, J.A., on October 11, Editor: Elizabeth M.A. Turgeon Appeal allowed. Civil Rights - Topic 1508 Property - Expectation of privacy - Computer files - The police seized the accused's computer under a warrant respecting a fraud investigation - While looking for evidence of fraud, the police found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - The Ontario Court of Appeal held that the seizure of the images found in the initial search did not constitute a breach of the accused's s. 8 Charter rights - However, the seizure of the video files containing child pornography was not authorized by the warrant, under the plain view doctrine or under s. 489 of the Criminal Code (seizure of items not specified in the warrant) and was, therefore, contrary to s. 8 of the Charter - The court, applying the Grant anlaysis, ruled that the video files should not be excluded under s. 24(2) of the Charter - See paragraphs 75 to 103. Criminal Law - Topic 3163 Special powers - Power of seizure - Extent of power (incl. things not specified in warrant) - Section 489 of the Criminal Code authorized the seizure of things in addition to those things specified in a warrant under certain circumstances - The Ontario Court of Appeal opined that s. 489 was not a codification of the plain view doctrine - See paragraph 58. Criminal Law - Topic 3163 Special powers - Power of seizure - Extent of power (incl. things not specified in warrant)

6 - The police seized the accused's computer under a warrant respecting a fraud investigation - While looking for evidence of fraud, the police found images of child pornography (initial search) - Without obtaining a second warrant, the police continued their search for child pornography, including looking at video files unrelated to the fraud investigation - At issue was whether the police were entitled to seize the files containing child pornography under the plain view doctrine and/or s. 489 of the Criminal Code (seizure of things not specified in the warrant) - The Ontario Court of Appeal agreed that the plain view doctrine and/or s. 489 justified the search and seizure of the images of child pornography found in the initial search - That seizure did not violate s. 8 of the Charter - However, the court stated that it would not extend the plain view doctrine to justify the police seizure and ensuing use by the Crown of the subsequently discovered video files - Nor did s. 489 assist in this respect - For the purpose of this case, the reach of s. 489 stopped at the discovery of the image files - Thus the seizure of the video files was contrary to s. 8 of the Charter - See paragraphs 53 to 75.