R. v. C,. 2009 CarswellOnt 75

Her Majesty The Queen (Respondent) and A.C. (Applicant)

Ontario Superior Court of Justice

L.A. Pattillo J.

Heard: October 28-December 1, 2008
Judgment: January 12, 2009
Docket: CR-08-PR000508-0000

Counsel: Alan B. Spiegel for Respondent

Graham T. Clark for Applicant

L.A. Pattillo J.:

Introduction

1     On the evening of March 8, 2006, the accused, A.C., was arrested without a warrant in his apartment for mischief to data and possession of child pornography. Following his arrest, the police seized a substantial amount of computer equipment from the apartment. Mr. C. was charged later that evening with mischief to data and released from custody at the police station.

2     On March 10, 2006, and based primarily on information obtained on March 8 from their visit to Mr. C.’s home, the police obtained a search warrant authorizing technical personnel in the Toronto Police Services to analyze the contents of the computer equipment which had been seized. The subsequent search of the computer equipment found a substantial amount of both images and movies depicting child pornography.

3     On January 23, 2007, Mr. C. was arrested and charged with possession of child pornography contrary to the Criminal Code. He was subsequently charged with making child pornography without lawful excuse or justification, contrary to the Criminal Code.

4     Mr. C. brings this application alleging that the police actions at his home and the seizure of his property, including his computer equipment, violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter“). Mr. C. further submits that the search warrant which was subsequently obtained by the police entitling them to search his computer equipment should be quashed on the basis that the information upon which it was obtained was gathered in violation of his Charter rights.

Facts

5     The following are the facts as I find them based on the evidence.

6     In March of 2006, Detective John Kmieciak who has been a member of the Toronto police force for more than 18 years was assigned to the Criminal Investigation Bureau (“CIB”) at 54 Division.

7     In early March, 2006, Detective Kmieciak was assigned an investigation concerning a complaint by a company called Canada Call Mortgage (“CCM”) of mischief to data involving computers. After reviewing the occurrence sheet, he contacted the company and was advised that a former employee, Mr. C., who had worked with its computer systems, allegedly interfered with the company’s data and with its website. The company also alleged that Mr. C. was in possession of an IBM computer, monitor, mouse and keyboard which belonged to it. CCM wanted to recover its data and hardware which Mr. C. had refused to return and to ensure its data was secure.

8     On March 8, 2006, Detective Kmieciak was working the evening shift. He decided, as part of a trip he had to make to serve subpoenas, to visit Mr. C. at his residence at [address deleted] to speak with him concerning the allegations and to see if he could resolve the matter. Police Constable Michael Chmela, who had had been a member of the Toronto police force for approximately 5 years and who had joined CIB as a trainee the week before, accompanied Detective Kmieciak on the trip.

9     The officers arrived at [address deleted] Avenue around 7 pm on March 8, 2006. The address was an apartment building. As the officers did not know Mr. C.’s apartment number, they located the superintendent by buzzing him on the building’s buzzer system located at the front door. After speaking to the superintendent who advised them that Mr. C. resided in apartment 503, the officers proceeded to Mr. C.’s apartment. At 7:07 pm, Detective Kmieciak knocked on the door of apartment 503. PC Chmela stood a few places behind him in the hallway.

10     Having received no signal in his apartment from the buzzer system located at the front door, Mr. C. was surprised when he heard the knock at his door. He asked who it was and was told it was the police. He went to the door and opened it approximately 5 to 6 inches to look out. He saw two individuals in plainclothes standing in the hallway. Detective Kmieciak showed him his badge. Mr. C. asked what it was all about. Detective Kmieciak told him it was regarding CCM.

11     When he opened the door Mr. C. was dressed in a T-shirt and boxer shorts. He asked the police officers to give him a moment to dress and Detective Kmiecik agreed. Mr. C. went to dress. The door to the apartment remained partly open. The officers waited in the hall.

12     Mr. C.’s apartment is a small one-room bachelor apartment. The entrance door is on the left side of the room. There is a shelf to the right immediately upon entry which creates a short entrance area leading to the main room. To the right of the entrance area along the wall there is a bathroom followed by a small galley kitchen.

13     On March 8, 2006, Mr. C.’s apartment was quite cluttered and messy with a lot of unpacked boxes stacked up in the room just past the entrance area. There was also a clothes rack with clothes on it. Behind the boxes and the clothes rack was a futon which was unmade with clothes on it. To the right the boxes and the clothes rack, on the far right side of the room from the door, opposite the kitchen was a table with two large computer monitors with a keyboard and a mouse in front of them. The monitors were IBM and Sony makes. There was another computer monitor on a table behind that. There was a lot of other computer equipment including CPU’s, hard drives and CDs, DVDs on the tables, shelves and the floor. There was a lot of loose paper on the table and under it.

14     Mr. C. proceeded to quickly put on trousers and a shirt and returned to the front door. A brief discussion took place the officers stepped into the apartment.

15     Detective Kmieciak and PC Chmela followed Mr. C. into the apartment to the right of the entrance area for a distance of six to nine feet. Detective Kmieciak, who had a file folder with him, started asking Mr. C. questions concerning CCM, his employment with the company and the problems it was complaining about. In particular, he asked whether Mr. C. had any data of CCM’s and whether he had interfered with its database or its website. He also asked him if he had any equipment which was owned by CCM, specifically an IBM computer, keyboard and mouse.

16     Mr. C. told the officers that he had worked for the company on and off from 2002. He initially did janitorial work and then worked on computers. He did some of his computer work from home. His last pay check had been on February 3, 2006. He also said that the company had changed its passwords on March 2, 2006. He denied any wrongdoing. He said that the allegations were made up by the company and he had no backup data or equipment which belonged to CCM. He specifically denied that he had any IBM computer equipment belonging to CCM.

17     During the discussion, the officers noticed that one of the monitors on the table behind Mr. C. was an IBM monitor. Detective Kmieciak asked Mr. C. if it was an IBM and he replied no, it was a Sony. Detective Kmieciak pointed out the logo to Mr. C. who did not respond.

18     Mr. C.’s lack of response raised a suspicion in Detective Kmieciak’s mind that Mr. C. in fact had an IBM computer belonging to CCM and that he had not been telling them the truth.

19     The officers then proceeded further into the apartment, past where Mr. C. was standing and closer to the table with the computer monitors on it.

20     As Detective Kmieciak got closer to the table he noticed the CPUs behind it which he described as towers. He asked Mr. C. if any of them were IBMs and Mr. C. responded yes. As a result, Detective Kmieciak began to take a closer look at the computers on and around the table in the apartment. In so doing, he observed a photo on the top of a monitor in a clear plastic frame of a young man wearing only shorts. As he leaned forward to look around behind the monitors at the computer equipment, he noticed that there was a photo in the back of the frame of the same young man in the same pose with no clothes on and with an erection. He asked Mr. C. who the individual in the photo was and he replied that it was a friend who lived in Detroit and told him his name. He also noticed other photos in the apartment of young male faces and he asked Mr. C. who they were and he replied that they were friends.

21     Prior to seeing the picture in the plastic frame, Detective Kmieciak had made a mental note that both computer monitors on the table were on and working. He could see text on one and a map on the other. After he saw the photo of the young man, he stepped back to take a closer look at the monitors. In so doing, he saw pictures around the edges of the screen of one of the monitors of young boys’ faces; naked boys, boys with their genitals exposed and boys engaged in various sexual acts. He estimated the males were in the range of between 13 to 15 years of age.

22     When Detective Kmieciak saw the pictures on the computer screen, he suspected they depicted child pornography. He told Mr. C. that he was under arrest for possession of child pornography. The officers seized the plastic frame containing the pictures of the boy. In addition, because he believed, based on Mr. C.’s responses to his questions, that one of the IBM computers he saw belonged to CCM, he also arrested Mr. C. for mischief to data. The time of the arrest at 7:15 pm.

23     Following his arrest, Mr. C. was read his rights, handcuffed and taken out into the hallway. Mr. C. remained in the hallway approximately 10 to 15 minutes before a third officer arrived. He was then taken to 54 Division where he was told he was charged with mischief of data.

24     Detective Kmieciak remained at the apartment. On the basis of advice he received by phone from an officer in the Sex Crimes Unit of the Toronto Police later that same evening, Detective Kmieciak seized various pieces of computer equipment in Mr. C.’s apartment. In total he seized eight CPU’s, one laptop computer and six external hard drives. He also seized a case containing 18 DVD’s with titles on them that strongly suggested to him that they contained child pornography.

25     Mr. C. was released from the police station between 2 and 3 am on March 9, 2006 on his own recognizance in respect of the mischief to data charge. At the time of his release he was advised by Detective Kmieciak that his computer equipment had been seized.

26     On March 10, 2006, the police obtained a warrant to search the computer equipment seized from Mr. C.’s apartment. The information to obtain (“ITO”) filed in support of the application relied on the information and belief of a number of officers including Detective Kmieciak. It set forth in detail the background of the officers’ visit to Mr. C.’s apartment on March 8, and that the officers were invited into the apartment by Mr. C. It detailed the discussion with Mr. C. and that he consented to them looking at his computers in the apartment. Finally it set forth Detective Kmieciak’s observations of the pictures of the boy in the front and back of the plastic frame and of the boys in the wallpaper on the computer monitor as well as other observations by Detective Kmieciak of what he saw on the screen of the laptop computer and the titles to the DVD disks which he seized. The ITO concluded by saying that Detective Kmieciak observed what he believed to be child pornography and that he seized the computer equipment without a warrant under the plain view doctrine.

27     The subsequent analysis of the computer hard drives and DVDs pursuant to the warrant identified at least 1,430 photographic images of child pornography and at least 1,573 movies containing child pornography.

The Issues

28     Mr. C. submits that the entry of the police officers into his apartment and the subsequent search of his apartment and the seizure of his property without his consent was unreasonable and therefore constituted a violation of his rights as guaranteed by s. 8 of the Charter. Further, because the subsequent search warrant authorizing the search of his computer equipment was obtained based on information gathered by the police in violation of his Charter rights, the warrant can not stand. Finally, Mr. C. submits, because of the serious nature of the Charter breach, the evidence gathered by the police both from his home and arising from the execution of the search warrant should be excluded pursuant to s. 24 (2) of the Charter.

29     In response, the Crown submits that there was no breach of Mr. C.’s Charter rights. The officers’ attendance at Mr. C.’s apartment was for a lawful purpose. Mr. C. consented to both the officers’ entry into his apartment and the subsequent search of his apartment. What the officers observed prior to Mr. C.’s arrest within the apartment was within plain view. As a result, the search warrant which was subsequently obtained was properly issued and should not be quashed in the absence of any breach of Mr. C.’s Charter rights. In the alternative, and even if there was a Charter breach by the officers, the ITO contained sufficient evidence to support the issuance of the search warrant. Finally, even if the evidence was obtained in violation of the Charter, the admission of the evidence will not bring the administration of justice into disrepute.

Discussion

30     When Detective Kmieciak and PC Chmela went to Mr. C.’s apartment on the evening of March 6, 2006, the evidence is clear that they had no reasonable and probable grounds to arrest him. The purpose of the visit was simply investigatory. They wished to ask Mr. C. questions about CCM’s allegations. In so doing, they had the right to attend at the apartment, approach the front door and knock for the sole purpose of speaking with Mr. C.

31     In R. v. Nguyen, [2006] O.J. No. 4393 (Ont. S.C.J.), Hill J. stated at paragraph 49:

49 Leaving to the side for the moment Mr. Nguyen’s actions, the police, as does any member of the public, had the right to directly approach the front door of the Harrowsmith residence to knock for the sole purpose of convenient communication with the occupants: R. v. Evans, [1996] 1 S.C.R. 8, at paras. 13, 16; R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.) at p. 579 (leave to appeal refused [1995] S.C.C.A. No. 87, [1996] 1 S.C.R. ix); R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.) at paras. 23-4. The implied licence ends at the door of the dwelling: R. v. Tricker, supra, at p. 579. This implied licence to enter does not include authority to effect a warrantless entry to arrest: see R. v. Grotheim (2001), 161 C.C.C. (3d) 49 (Sask. C.A.) at para. 25 (leave to appeal refused [2002] S.C.C.A. No. 17).

See too: R. v. Van Wyk, [1999] O.J. No. 3515 (Ont. S.C.J.); affirmed [2002] O.J. No. 3144 (Ont. C.A.).

32     As noted in the above excerpt, the right to engage in “convenient communication” does not extend past the doorway of Mr. C.’s apartment. Our law protects the sanctity of a person’s dwelling. In order to enter the apartment in the absence of reasonable and probable grounds to arrest coupled with exigent circumstances, the officers must have either a warrant or Mr. C.’s consent. See: R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.); R. v. Silveira, [1995] 2 S.C.R. 297 (S.C.C.). See too: R. v. Killen , [2006] O.J. No. 3987 (Ont. C.J.); R. v. Desrochers, [2007] O.J. No. 1482 (Ont. S.C.J.)

33     Where consent is relied upon to support a waiver of a constitutional right during the course of a police investigation, the Crown must establish that the consent was both voluntary and informed: R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.); R. v. O’Connor (2002), 62 O.R. (3d) 263 (Ont. C.A.).

34     As a result, it is necessary to determine whether Mr. C. consented to the entry of the officers into his apartment and, if the actions of the officers in the apartment constituted a search, whether Mr. C. consented to such search.

(a) The Entry

35     There is a dispute on the evidence between Mr. C. and the officers as to what occurred between them after the officers knocked on Mr. C.’s door.

36     Mr. C. testified that when he first opened the door, Detective Kmieciak pushed his wallet with a badge on it through the door and identified himself as and his partner.

37     Mr. C. said he attempted to close the door to get dressed but Detective Kmieciak kept his arm in the door preventing him from doing so. He said he looked at him but did not say anything. He said he was nervous and didn’t know what to do so he left door open. Detective Kmieciak said Mr. C. left the door slightly ajar. Mr. C. gave him no indication that he tried to close the door before he left to get changed. PC Chmela could not recall whether Mr. C. closed door all the way or part way while he dressed.

38     Mr. C. also said that while he dressed, he observed that Detective Kmieciak had his head through the door and was looking around the inside of his apartment. Detective Kmieciak said he was standing outside the door and no portion of his body was inside the door to the apartment. Detective Kmieciak said that while he could look into the apartment from where he was standing, he was unable to see anything of note. PC Chmela said that while Mr. C. was dressing neither he nor Detective Kmieciak passed the threshold of the doorway. They remained in the hall.

39     Having considered the evidence, I prefer the evidence of the officers. I find that when Mr. C. went to dress, he left the door to his apartment ajar and Detective Kmieciak did not use his arm to prevent Mr. C. from closing the door.

40     I also find that neither of the officers crossed the threshold of Mr. C.’s apartment door while they waited for him to get dressed. Given the layout of the apartment, it made little sense for Detective Kmieciak to put his head in the door as Mr. C. testified. He would not have been able to see very much, if anything, given the boxes straight ahead and the shelf to the right of the door. Likewise, Mr. C., who was dressing in an area of the apartment to the right of the door, would not have been able to see him.

41     Mr. C. said that when he returned to the front door after getting dressed, he opened it with the intent of stepping out into the hall. Instead, Detective Kmieciak stepped in and PC Chmela followed. He testified that he did not invite the officers into his apartment. Once inside his apartment, he said Detective Kmieciak told him that he did not want the neighbours to hear their discussion.

42     Detective Kmieciak evidence was that when Mr. C. returned to the door, he reiterated why they were there and told him they could speak about it in the hallway or inside the apartment. Detective Kmieciak said that Mr. C. then invited them into the apartment. He could not recall Mr. C.’s words verbatim. He said that Mr. C. then walked into the apartment and that he and PC Chmela followed him into the apartment.

43     PC Chmela testified that when Mr. C. returned to the door, Detective Kmieciak identified himself and asked him if he had been an employee of CCM. Mr. C. replied yes. Detective Kmieciak advised him that they were there to speak with him concerning property or data of the company. He said that they were discussing this at the doorway to the apartment and he noticed Mr. C. appeared uncomfortable while talking at the door. He did not recollect all the words that were spoken but said that there was “more or less an invitation” by Mr. C. to speak inside the apartment. The communication was not verbal but consisted of a hand gesture from Mr. C. to indicate the officers should enter the apartment.

44     Once again, I prefer the evidence of the officers on this issue. The officers were there to ask Mr. C. questions. Having waited in the hallway for him to get dressed, it makes more sense to me, given the reason why the officers were there, for them to obtain Mr. C.’s permission to discuss the matter in his apartment before entering as opposed to after as Mr. C. testified. There was no reason for them to enter the apartment at the outset in the absence of permission.

45     While the evidence of the officers may not go so far as to establish the direct consent of Mr. C. to enter his apartment, at the very least, in my view, it establishes an implied consent. After Detective Kmieciak advised Mr. C. that they wanted to speak to him about CCM and they could speak either in the hallway or in his apartment, his actions in not indicating to the officers that he would prefer to talk in the hallway and his hand gesture indicating they should enter, were sufficient to indicate to the officers that Mr. C. consented to them entering his apartment.

46     Based on what he was told by Detective Kmieciak concerning the purpose of the officers’ visit, not only when he first opened the door but again when he returned from getting dressed, Mr. C. was aware of the reason why the officers were there and what they wanted to talk to him about. There is no suggestion Detective Kmieciak provided any false information to Mr. C. which might operate to vitiate his consent.

47     I do not agree with Mr. C.’s submission that the statement by Detective Kmieciak that they could speak either in the hall or the apartment amounted to coercion or oppression such that it rendered any consent involuntary. In the circumstances, it was a reasonable alternative to put to Mr. C. The hallway was not large and was not a private area. In the absence of a specific response from him indicating he preferred to talk in the hallway, coupled with his gesture to enter, the officers were entitled to believe he had invited them to enter his apartment.

48     I am therefore of the view that Mr. C. consented to the officers entering his apartment for the purpose of discussing CCM’s complaint and that such consent was both voluntary and informed.

(b) The Search

49     As noted, once inside the apartment, Detective Kmieciak discussed with Mr. C. CCM’s allegations. Mr. C. denied those allegations. It is clear, however, that when Mr. C. responded that the monitor was a Sony and then did not respond to Detective Kmieciak’s attempt to clarify, Detective Kmieciak formed the view that he was not being truthful with them and that he had an IBM computer belonging to CCM.

50     As noted by Laskin J.A. in R. v. Grant, [2006] O.J. No. 2179 (Ont. C.A.) at para. 33, the line between when questions become a search and when they do not is sometimes not easy to draw. In order to determine whether questions amount to a search, it is necessary to consider both the context of the question and the nature of the question itself: Grant, supra, at para. 32-37.

51     In the present case, having regard to both the context of the questions and the questions the officers were asking of Mr. C., in my view the police officers were not engaged in a search either at Mr. C.’s front door or during the initial questions inside his apartment. The reason why they were there and the questions both at the door and inside the door of the apartment did not give rise to a search.

52     However, when Detective Kmieciak formulated the suspicion that Mr. C. was not telling the truth and may have had a computer belonging to CCM, the context of the discussion changed. So too did the questioning. Detective Kmieciak became interested in determining whether Mr. C. had an IBM computer belonging to CCM. As a result, therefore, it is my view that the officers’ further entry into Mr. C.’s apartment to “look at the computers” constituted a search.

53     At the time that Detective Kmieciak proceeded further into Mr. C.’s apartment, he did not have reasonable and probable grounds to arrest Mr. C. either for mischief to data or possession of child pornography. Mr. C. denied all of CCM’s allegations, including that he had an IBM computer belonging to CCM. The fact that the officers saw an IBM monitor on his table did not prove anything concerning CCM’s allegations. IBM computers can be found in many homes. Further, Mr. C.’s response that the monitor was a Sony was not inaccurate given that there was also a Sony monitor on the table, beside the IBM monitor. Standing with his back was to the monitors when Detective Kmieciak first pointed out the IBM monitor, Mr. C. could have easily misunderstood what Detective Kmieciak was referring too.

54     Further, from where the officers were standing after they first entered the apartment and before they moved forward to the computers, neither of them could see anything indicating the presence of child pornography. Neither officer testified they noticed the photo of the boy in the plastic frame in the monitor. Even if they saw the photo, all that was visible was the picture on the front side of the boy with shorts on. They were also too far away to make out anything on the monitors other than they were on.

55     Accordingly, the movement of the officers further into the apartment from the spot they stood after first entering the apartment was a warrantless search.

56     A warrantless search is prima facie unreasonable: Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc. , [1984] 2 S.C.R. 145 (S.C.C.); R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.).

57     The Crown relies on Mr. C.’s consent to look at the computers as a justification for the search.

58     Mr. C. denied that he gave the police officers permission to look at his computer equipment. It was his evidence that Detective Kmieciak walked past him and went up to the computer table and that he had to step aside to allow him to do that.

59     Detective Kmieciak said that he asked Mr. C. if he could look at the computers that he had in the apartment and Mr. C. responded yes. Detective Kmieciak then pointed to the nearest monitor on the table and asked Mr. C. if it was an IBM. Mr. C. replied no, it was a Sony. Detective Kmieciak said that he could see the IBM logo on the monitor and he pointed out the logo to Mr. C. He said he did so, not in the form of a question but rather a comment and that Mr. C. did not respond.

60     PC Chmela said that he noticed over Detective Kmieciak’s shoulder while he was talking to Mr. C. that there was a monitor with an IBM logo on it on the table across the room behind Mr. C. He pointed this out to Detective Kmieciak and Detective Kmieciak then pointed to monitor which was on the table and asked Mr. C. if it was an IBM. Mr. C. replied no, it was a Sony. Detective Kmieciak then asked Mr. C. if he could look at the monitor to see if it was an IBM and he said yes. Detective Kmieciak then stepped closer to the table and began looking at the computers.

61     In considering the evidence on this issue, I am troubled by the inconsistency between Detective Kmieciak and PC Chmela as to when Detective Kmieciak asked Mr. C. for permission to look at the computer equipment.

62     Mr. C.’s response to Detective Kmieciak’s question that the monitor was a Sony was important to Detective Kmieciak. He had no reason to ask to look at the equipment before that. Mr. C. had denied any wrongdoing and denied that he had any CCM computer equipment. I do not accept that he asked Mr. C. for permission to look at the computers before he pointed out the IBM monitor and received Mr. C.’s response. I prefer the evidence of Mr. C. on this issue. I find that Detective Kmieciak went closer to look at the computers in the absence of Mr. C.’s consent.

63     Even if Mr. C. had consented as the officers said, I am not convinced from the evidence that it was either voluntary or informed. Having seen the computers and suspecting that Mr. C. had an IBM computer belonging to CCM, Detective Kmieciak formed the intention to take a closer look at the computer equipment. In such circumstances, Mr. C. had little option but to consent. More importantly, in my view, given Detective Kmieciak’s suspicion, it was incumbent on the officers to advise Mr. C. of the consequences of allowing them to further proceed to look at the computer equipment and his right to refuse. They did not do that.

64     As a result of Mr. C.’s consent, the officers were entitled to enter into his apartment for the purpose of asking him questions concerning his dealings with CCM. However, once Mr. C. had answered the questions and denied any wrongdoing, they were not entitled to proceed to search in the absence of warrant or consent. In doing so, their actions constituted an unreasonable search of Mr. C.’s apartment and a violation of his s. 8 Charter rights.

The Search Warrant

65     The law in respect of the review of the issuance of a search warrant is well settled. In so doing, I am not entitled to substitute my view for that of the authorizing judge: R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.).

66     Where a search warrant has been obtained on the basis of information obtained as a result of Charter violations, the warrant is not valid: R. v. Kokesch, [1990] 3 S.C.R. 3 (S.C.C.); R. v. Grant, [1993] 3 S.C.R. 223 (S.C.C.); R. v. Feeney, supra. Where, however, the search warrant was issued, in part, on improperly obtained evidence and in part on properly obtained evidence, the court must carry out the review disregarding the tainted evidence: R. v. Grant, [1993] 3 S.C.R. 223 (S.C.C.) at p 251.

67     In the present case, when the information obtained from the improper search of Mr. C.’s apartment is excised from the IFO, reasonable and probable grounds do not exist, in my view, to permit the issuance of the search warrant. The remaining information in the IFO concerning CCM’s complaint, the attendance at Mr. C.’s apartment and the discussion with Mr. C. before the search do not establish any basis to search Mr. C.’s computer equipment for child pornography. All of the information concerning child pornography was learned by the officers only after they commenced their search.

68     Accordingly, the search warrant was improperly issued and cannot stand.

Section 24 (2) of the Charter

69     Having found that the search carried out by the police in Mr. C.’s apartment on March 8, 2006 was a violation of Mr. C.’s s. 8 Charter rights and that the search warrant subsequently obtained which enabled the search of his computer equipment was invalid, should the evidence which was obtained from both the search and the search warrant be admitted, pursuant to section 24 (2) of the Charter?

70     Section 24 (2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

71     In R. v. Collins, supra, the Supreme Court held that the factors which must be considered in determining whether the admission of the evidence in question could bring the administration of justice into disrepute are the effect of the admission of the evidence on trial fairness; the seriousness of the Charter breach; and the effect on the repute of the administration of justice if the evidence is admitted or excluded.

(a) Trial Fairness

72     Non-conscriptive evidence will rarely operate to render a trial unfair. Conscriptive evidence, on the other hand, adversely affects trial fairness and is generally excluded under s. 24 (2) of the Charter.

73     Conscriptive evidence is evidence which is obtained in circumstances where an accused is, as a result of a Charter violation by the state, compelled to incriminate himself or herself by a statement, use of the body or production of body samples: R. v. Stillman, [1997] 1 S.C.R. 607 (S.C.C.) at para. 80.

74     Mr. C. submits that the evidence obtained from the search of his computers pursuant to the search warrant is “conscriptive real evidence” in that, although real, it was only discovered by a breach of his Charter rights.

75     In the present case, there was no violation of Mr. C.’s Charter rights such that he was compelled to incriminate himself by a statement, use of the body or production of his body samples. Accordingly, in my view, the evidence sought to be admitted which was found in Mr. C.’s apartment or in his computer equipment cannot be characterized as “conscriptive real evidence”. See: Stillman, supra, at para. 75-79; R. v. Ricketts (2000), 144 C.C.C. (3d) 152 (Ont. C.A.) at para. 20.

76     The evidence in issue here existed independently and prior to any police actions. It is non-conscriptive evidence, the admission of which in my view would not impact on the fairness of Mr. C.’s trial.

(b) Seriousness of the Breach

77     In determining the seriousness of the breach, the factors to be considered are such things as the oppressiveness of the search, Mr. C.’s expectation of privacy in the area searched, the existence of reasonable and probable grounds and the good faith of the police: R. v. Caslake, [1998] 1 S.C.R. 51 (S.C.C.) at paragraph 34.

78     Both the Supreme Court of Canada and our Court of Appeal have often recognized the sanctity of the home and the very high expectation of privacy which individuals have in respect of their home: Feeney, supra, at para. 77; R. v. Lauda (1999), 136 C.C.C. (3d) 358 (Ont. C.A.).

79     In the present case, Mr. C. was entitled to a very high expectation of privacy in respect of his home. By inviting the officers in, his expectation of privacy is diminished somewhat. But it still remains very high in respect of those items not in plain view.

80     Mr. C. was also entitled, in my view, to a very high expectation of privacy in respect of his computer equipment and in particular the data contained within it. See: R. v. Cross, [2007] O.J. No. 5384 (Ont. S.C.J.) at para. 2.

81     The police officers clearly exceeded their authority in carrying out the search of his apartment. There is no reason why, at the point they suspected that Mr. C. had a computer belonging to CCM, they didn’t leave the apartment, obtain better information from CCM with respect to its ownership and either obtain a warrant or return to have a further discussion with Mr. C. or both.

82     In my view, the search by the officers of Mr. C.’s apartment was an extremely serious intrusion of his expectation of privacy both in respect of his house and his computer equipment and accordingly must be regarded as a flagrant violation of Mr. C.’s s.8 Charter rights.

(c) Effect on the Administration of Justice

83     The last factor to determine in the analysis is whether the exclusion of the evidence would have a more serious impact on the repute of the administration of justice than its admission.

84     There is no question that charges relating to the possession and making of child pornography are very serious. It is also clear that the omission of the evidence obtained from Mr. C.’s apartment and from his computer equipment is important for the Crown’s case. The exclusion of that evidence will effectively bring an end to the Crown’s case.

85     The Crown submits that recent decisions of our Court of Appeal have re-oriented the analysis of s. 24 (2) away from excluding evidence essential to the prosecution of serious crimes even in light of varying degrees of Charter breaches. In support, the Crown relies on R. v. Harrison, [2008] O.J. No. 427 (Ont. C.A.); R. v. Alkins (2007), 218 C.C.C. (3d) 97 (Ont. C.A.); R. v. White, [2007] O.J. No. 1605 (Ont. C.A.); R. v. B. (L.), [2007] O.J. No. 3290 (Ont. C.A.); R. v. Pillay, [2007] O.J. No. 4008 (Ont. C.A.) and R. v. Grant, [2006] O.J. No. 2179 (Ont. C.A.).

86     In my view, those cases are distinguishable from the present case. None of them, except for Pillay, involved the improper search of a home. In Pillay, there were circumstances that mitigated the seriousness of the breach. Those circumstances do not exist here.

87     Notwithstanding the serious nature of the charges in this case, because of the serious and flagrant nature of the breach involved, in my view, the admission of the evidence would have a far greater effect on bringing the administration of justice into disrepute than its exclusion. The paramountcy of the privacy of the home trumps the serious nature of the charges in the circumstances of this case. As Osborne A.C.J.O. said in Lauda, supra, at para. 102: “The warrantless search of the appellant’s residence constituted a flagrant violation of his s. 8 rights and the conduct of the police must not be judicially condoned.”

Conclusion

88     Accordingly, for the above reasons, it is my view, based on the evidence, that Mr. C. consented to Detective Kmieciak and PC Chmela entering his apartment on the evening of March 8, 2006 to discuss the allegations of CCM. However, I am further of the view that he did not consent to their subsequent search of his computer equipment in the apartment. Accordingly, in the absence of a warrant or other authorization by law, the search of Mr. C.’s apartment by the police officers was unreasonable and a violation of his rights under s. 8 of the Charter.

89     Further, and in light of my decision that Mr. C.’s s. 8 Charter rights were violated, I am of the view that the search warrant which was obtained on March 10, 2006 enabling the police to analyze Mr. C.’s computer equipment cannot stand given that it was obtained based on information gathered from the improper search.

90     Finally, and notwithstanding the serious nature of the offences charged, because of the serious nature of the breach involving Mr. C.’s residence, it is my view that the admission of the evidence in question would be more negative to the administration of justice’s repute than its exclusion. Accordingly, the evidence should be excluded pursuant to s. 24 (2) of the Charter.

91     In the result, therefore, Mr. C.’s application is allowed. The evidence seized from his apartment on March 8, 2006 as well as the subsequent evidence obtained from his computer equipment pursuant to the execution of the March 10, 2006 search warrant shall be excluded.

Application granted.