unreasonable search and seizure

Errors by Police Officer and Trial Judge Leads to Appeal Court Overturning Child Pornography Conviction

Written on Behalf of Affleck & Barrison LLP

In a recent decision by the Ontario Court of Appeal, a man convicted on pornography charges had evidence obtained in accordance with a production order and search warrant excluded resulting in his acquittal on all counts.

Former Hamilton minor hockey coach, Steven West (“West”), was charged in 2017 with accessing, possession of, and making child pornography available.  At trial, he was convicted and sentenced to three years in prison. 

THE INVESTIGATION

In August 2016, Hamilton Police were alerted to a pornographic picture that West had uploaded to the mobile messaging app Kik.  The image was of a five year old girl sitting in an explicitly indecent sexual pose on a beach wearing only a bikini top.

The Kik app detected the picture and reported it to the RCMP’s National Child Exploitation Co-ordination Centre, who forwarded it to the Hamilton Police Service.  The police were provided with information regarding the account that the image had been uploaded to and two Internet Protocol addresses associated with the use of the account.  Police determined that both IP addresses belonged to Cogeco Cable. 

Detective Constable Jeremy Miller prepared an Information to Obtain for a general production order under section 487.014 of the Criminal Code.  Detective Miller attached an affidavit which stated “that the information set out herein constitutes the grounds to suspect” that the subscriber committed the child pornography related offences.

After receiving court approval to obtain subscriber information from Cogeco Cable, the police were informed that Steve West was the subscriber and provided his address.  The police then obtained a search warrant to search West’s residence for electronic devices and documents that contain suspected evidence of child pornography. 

When police searched West’s home they seized five digital devices and found 19,687 files containing child pornography, including images and 51 videos.  West was subsequently charged with possession of child pornography, distribution of child pornography and accessing child pornography.

THE APPEAL

The issue before the appeal court was whether West’s rights under section 8 of the Charter (the right to be secure against unreasonable search and seizure) were infringed and if the evidence against him should have been excluded.

West argued that the production order should not have been issued as the police officer incorrectly worded his affidavit by using the wrong legal test in an attempt to obtain the information from Cogeco.  The appeal court agreed with West and in its decision explained the law and the legal test for production orders.

A production order under section 487.014 of the Criminal Code allows police to obtain documents, including electronic documents, from individuals who are not under investigation.  This section allows a justice or judge to make a production order if he/she is satisfied, by the information placed before him/her, that there are reasonable grounds to believe that:

  1. An offence has been or will be committed;
  2. The document or data is in the person’s possession or control; and
  3. The production order will provide evidence of the commission of the named offence.

In West’s case, the officer misstated the standard throughout his affidavit.  He stated he had grounds to “suspect” and the correct standard is grounds to “believe”.  Despite this flaw, the justice authorized the production order. 

The trial judge also failed to address this error.  Given the trial judge’s error, no deference was given by the appeal court to the trial judge’s decision and the three member panel was allowed to consider afresh whether there was a basis on which the production order could have been issued.  The appeal court concluded that the production order was issued in error, therefore the search warrant could not have been issued and the search of West’s residence was unreasonable. 

The Appeal Court ruled that the officer erred when he swore in his affidavit that he had the “grounds to suspect” a crime had been committed, as opposed to the “grounds to believe” a crime had been committed. 

According to Justice Michael Tulloch, Hamilton Police “were effectively fishing for a connection to the offence”.  Thus, the search of West’s residence and electronic devices was unlawful and a violation of the Charter.

Although the Crown prosecutors can appeal this decision to the Supreme Court of Canada, we do not have any information at this time as to whether this decision will be appealed.  We will report any developments in this blog when further information becomes available.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

Police Did Not Trespass and No Charter Violation For Arrest of Drunk Driver Who Was Peeing on His Front Porch

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a man who was arrested while peeing on his front porch after an officer received reports of a drunk driver in the area had not been arrested or held in violation of his Charter rights, and the officer had not been trespassing when he made the arrest.

What Happened?

The man in question, Mr. Mali, drove home while intoxicated, parked his car on the driveway, and began to pee on his front porch. A police officer who had responded to a call about a possible drunk driver walked onto Mr. Mali’s property and began to ask him questions.

Mr. Mali initially responded by telling the officer that he “had to pee” and that he did not want to speak with the officer. He eventually began to answer the officer’s questions, and was arrested for impaired driving and taken to the station.

Mr. Mali provided three breath samples at the police station, which revealed that his blood alcohol content (BAC) was almost three times the legal limit. After providing the samples, Mr. Mali was placed in a cell for approximately six and a half hours and then released.

At trial, Mr. Mali’s counsel argued that when Mr. Mali informed the officer that he did not want to speak with him, the officer had been obliged to leave, and that his failure to do so, and Mr. Mali’s subsequent arrest and demand for breath samples violated Mr. Mali’s s. 8 Charter rights to be free from unreasonable search and seizure. The fact that he was held for six hours in a cell at the police station was “overholding” and violated his s. 9 Charter right not to be arbitrarily detained. Mr. Mali’s counsel argued that the breath test results, the statements made by Mr. Mali on the night of his arrest, and the observations made by the police on the night of the arrest should be excluded as evidence as a remedy for the supposed Charter violations.

Justice Schrenk dismissed the Charter application, and found Mr. Mali guilty on two counts of driving while impaired.

The Court’s Reasoning

The Arrest and Breath Samples

 Mr. Mali’s defense counsel argued that his arrest on private property and subsequent request for a breath sample violated Mr. Mali’s s. 8 and s.9 Charter rights.

Case law has clearly established that it is permissible for a police officer who has a legitimate basis for entering a driveway- such as seeing a driver driving erratically, and following the driver back to a destination to ensure they have arrived safely before detaining them- to do so. That officer has implied permission to enter onto the property.

In this case, defense counsel for Mr. Mali accepted that the officer was entitled to enter onto Mr. Mali’s property; however, when Mr. Mali informed the officer that he did not want to speak with him, this withdrew the implied invitation, and the officer then became a trespasser.

Justice Schrenk disagreed with this argument for two reasons.

Firstly, there had not been a “clear expression of intent” that Mr. Mali did not wish to communicate further with the officer. Rather, Mr. Mali had stated that he “had to pee” and “didn’t want to talk”. While this could potentially be interpreted as a complete refusal to speak, a more reasonable interpretation is that Mr. Mali did not want to speak until he had finished urinating. Mr. Mali’s subsequent willingness to answer questions made such an interpretation even more reasonable.

Secondly, even though the officer may not have had grounds to arrest Mr. Mali when they initially engaged in conversation, he did once he realized how intoxicated Mr. Mali appeared. Had this interaction taken place on the road, the Highway Traffic Act would have given the officer the authority to detain Mr. Mali. While the Act does not apply on private property, there is a related common law right to detain someone on their private property, as long as the police officer is lawfully entitled to be on the property. It’s clear, based on existing caselaw, that once a police officer has entered onto private property under an implied invitation and arrests a person, that officer can then remain on the property in order to complete the arrest even if the implied invitation is later withdrawn:

In this case, Cst. Leal lawfully entered the property to conduct an investigation.  Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

Justice Schrenk concluded that there was no s. 8 violation in this case.

“Overholding” at the Station

 After being detained at the police station, Mr. Mali provided three breath samples. The last breath test was administered at 3:28 a.m. He was released around six and a half hours later, at 9:49 a.m. Mr. Mali’s defense counsel argued that this was an instance of “overholding” which violated his s. 9 Charter rights.

“Overholding” claims are common. Caselaw has clearly established that police are entitled to hold someone for a period of time after a breath test is administered, but only if the decision to hold that person is made for legitimate reasons and based on proper considerations. Such considerations, known as “Price factors” after the case they appear in, include:

  • The person’s BAC;
  • The person’s level of comprehension;
  • Whether the person was charged with impaired driving;
  • Whether the person had a suspended license;
  • Whether there was a responsible individual to pick the person up;
  • Whether the person has a criminal record;
  • Whether the person has any outstanding charges;

The officer in charge can make an informed decision about when to release the person based on the above and other factors. A number of factors should be considered, and the release decision should not be made based on BAC alone.

In this case, the police officer in charge of the station on the evening Mr. Mali was detained testified that he considered the Price factors in deciding when to release Mr. Mali. The officer who relieved the initial officer in charge around 5:45am, testified that it was his general practice to consider the BAC of a detained person by assuming that the person eliminated alcohol at a rate of 15mg per 100 ml of blood per hour. Additionally, it was his general practice to have a cells officer check on detainees every thirty minutes and report their observations of a prisoner’s sobriety. Here, in applying the general calculation of alcohol elimination, Mr. Mali’s BAC would still have been significantly over the legal limit upon his release at 9:49am.

Justice Schrenk found that in these circumstances, he was not persuaded on a balance of probabilities that Mr. Mali was held in violation of his Charter rights.

The Charter application was dismissed.

If you have been charged with impaired driving or another driving offense, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly  handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.