2008 BCSC 423 R. v. Pommer

Before: The Honourable Madam Justice D. Smith

Voir Dire Ruling on s. 8 Application

Counsel for the Crown:	A. Brooks, Q.C.
Counsel for the defence:	M. Mulligan
Date and Place of Trial/Hearing:	March 3-7 and 10-13, 2008
	Victoria, B.C.

[1] Christian Archer Pommer is charged in a three count indictment with: (i) possession of child pornography between October 1, 2001 and July 8, 2005, contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46; (ii) accessing child pornography between July 16, 2003 and July 8, 2005, contrary to s. 163.1(4.1) of the Criminal Code; and (iii) committing mischief by wilfully obstructing, interrupting, or interfering with the lawful enjoyment of property of his wife and daughter, by concealing a video camera in their bedroom, contrary to s. 430 of the Criminal Code.

[2] In this voir dire, Mr. Pommer challenges the admissibility of the evidence obtained in a warrantless search of the family’s home computer; the evidence obtained, pursuant to a search warrant, from the computer at his new residence, a condominium, after he vacated the family home; and the evidence, pursuant to a search warrant, obtained from his office. Mr. Pommer contends that each of these searches breached his s. 8 Charter rights and that pursuant to s. 24(2) of the Charter the evidence obtained from them should be excluded in the trial.

[3] Mr. Pommer did not testify or call evidence in the voir dire. He has the burden of establishing a s. 8 Charter breach on a balance of probabilities.

A. Factual Background

[4] Mr. Pommer and his wife (“the wife”) were married on May 10, 1998, at Winnipeg, Manitoba. The wife had a daughter from her first marriage who lived with the couple (“the daughter”). In September 2001, Mr. Pommer moved to Victoria, B.C. to set up a printing business. The family followed in November 2001. On February 24, 2004, Mr. Pommer and the wife separated, albeit Mr. Pommer continued to live in the family home until July 2004. The wife has since changed her name.

[5] Upon separation, Mr. Pommer moved into the spare bedroom. The wife remained in the master bedroom with her then-18-year-old daughter. The daughter had her own bedroom but slept with her mother after the wife’s separation from Mr. Pommer.

[6] On the evening of July 19, 2004, when the wife was working late and Mr. Pommer was not yet home, the daughter discovered the family video camera in the master bedroom hidden amongst some clothes on a shelf of the open bureau. The camera was recording and pointed in the direction of the bed where she and her mother slept. She also noted black electrical tape around the exterior part of the camera’s lens which obscured its presence. Neither the wife nor the daughter had seen black electrical tape on the camera before that date.

[7] The daughter was very distraught and panicked over the discovery. She immediately turned off the recorder and pulled out the camera’s electrical connection. She then heard Mr. Pommer drive up to the house.

[8] When Mr. Pommer came up the stairs to the master bedroom, the daughter pretended to be asleep. She heard him come into the bedroom, go to the bureau and remove the camera. She then heard him go into the basement where the home computer was located, begin typing on the computer and clicking the mouse. Fifteen minutes later, the daughter phoned the wife. The wife described her daughter’s manner during this phone call as terrified.

[9] The home computer was principally used by Mr. Pommer as a secondary computer to his desktop office computer and his portable laptop. He used it on a daily basis, frequently into the early hours of the morning. The wife and daughter had limited computer skills and used it infrequently, especially after Mr. Pommer had instructed them not to use it as he was concerned they might damage it. The wife had an e-mail address and occasionally used the computer to play games. The daughter used it occasionally to write her school essays.

[10] At 8:30 a.m. the following morning, the wife confronted Mr. Pommer in the spare bedroom. The camera was situated on his bedside table. She demanded an explanation for why he had placed the camera in the master bedroom and what he had been doing with it. Mr. Pommer told her that he had put the camera in recording mode on the bureau shelf of the master bedroom in order to detect anyone who might be walking down the hallway and entering his bedroom. He claimed to be concerned about someone stealing his money.

[11] The daughter examined the camera to see what it had recorded but noted that it had been recorded over and the screen was black.

[12] The wife thought Mr. Pommer’s explanation was “ridiculous”. The manner in which the camera was positioned in the master bedroom did not capture the area of the hallway near the spare bedroom. The wife and daughter even re-enacted the placement of the camera, pointing it toward the door of the master bedroom. They noted that even pointed in that direction it did not capture someone going down the hallway toward the spare bedroom. The wife said neither she nor the daughter had taken money from Mr. Pommer without his permission, although on cross-examination she acknowledged there had been an incident when her daughter at age twelve had taken a blank cheque from both her and Mr. Pommer, but had not cashed either of them. More significantly, it made no sense to her that Mr. Pommer would have recorded over whatever images the camera may have captured if he was concerned about catching someone stealing his money from the spare bedroom.

[13] The wife demanded that Mr. Pommer leave the house immediately and advised him she intended to change the locks. Over the next four to five hours, Mr. Pommer walked around the house, went down into the basement and into the garage for a cigarette. The wife threatened to call the police if he did not leave to which Mr. Pommer responded that it would be his word against the daughter’s. He eventually packed his suitcases and left. By then the house locks had been changed.

[14] Later that day, Mr. Pommer phoned the wife and asked her if he could retrieve a few more of his things. When he arrived, he accessed the home computer for a last time while the wife watched. He also arranged to take the pool table from the basement. He did not ask for or take the home computer.

[15] Mr. Pommer never returned to the family home. On February 14, 2005, he and the wife signed a separation agreement, which included a division of the contents of the family home. The agreement provided that Mr. Pommer would receive “the household possessions located in the garage and the crawl space of the family residence as at July 15, 2004”, “all storage boxes of personal items located in the garage and two crawl space areas …” and “either the Canon digital camera or the JVC digital video camera”. The agreement further provided that the wife would receive the “contents of the family residence as at July 15^th, 2004 except for those items to be retained by [Mr. Pommer]”. The house has since been sold.

[16] On July 23, 2004, the wife attended at the local RCMP detachment on the advice of the family lawyer. She informed Sgt. Snell of the incident but told him that she did not want to file a complaint. Instead, she asked if the police would examine the home computer to determine if any nude images of herself and the daughter had been sent out over the internet. She advised Sgt. Snell that Mr. Pommer had left the computer on the garage floor when he vacated the home.

[17] Sgt. Snell offered to have a member of his detachment who had some computer skills examine the computer’s hard drive. He said that he had no intention of pursuing a criminal investigation and therefore did not apply for a search warrant.

[18] The following day, the wife and daughter returned to the detachment and provided statements about the video incident. Sgt. Snell opened a file under the category of “Assist General Public”.

[19] On July 27, 2004, Sgt. Snell contacted Cst. Johnson who worked in the detachment and who had more computer skills than other members in the detachment. Sgt. Snell advised him about the incident and that the computer was shared by Mr. Pommer, the wife and the daughter. Sgt. Snell informed Cst. Johnson that Mr. Pommer had abandoned the computer after he had vacated the family home and said that the wife was concerned that Mr. Pommer may have e-mailed compromising images of her and the daughter over the internet. Cst. Johnson agreed to provide a basic search of the computer’s hard drive but acknowledged that his computer skills were not sufficiently developed for him to undertake a thorough examination.

(i) The July 28, 2004 warrantless search

[20] On July 28, 2004, Sgt Snell attended at the wife’s residence where he picked up the home computer. He delivered it to Cst. Johnson’s residence as the officer was on vacation. Cst. Johnson downloaded a software utility program from the internet and burned it onto a compact disc (“CD”). He then inserted the CD and downloaded the software program onto the home computer. The software program enabled him to undelete or reveal deleted and invisible files. Cst. Johnson understood that while deleted files are not visible they can still exist in the recycle bin directory and can be identified by certain software programs. One of the indicia of a deleted file is a question mark in its header.

[21] Cst. Johnson did not find any files or images of the wife and daughter that had been sent out over the internet. Among the 110 images that he viewed in the computer’s recycle bin he found five images that he believed constituted child pornography. The five images were of pre-pubescent and young teens under the age of 18 who were posed in an explicit sexual manner. Two of the images were titled “Rachel”. Cst. Johnson said he also located files from Mr. Pommer’s business in the recycle bin.

[22] Cst. Johnson burned the 110 images onto a CD, along with some of Mr. Pommer’s business files and personal photos from a 2003 Christmas party. He made an identical copy of the CD. He also noted one shared music directory. When Sgt. Snell returned a couple of hours later, Cst. Johnson gave him the home computer along with the two CDs. Sgt. Snell retained the home computer for a few days in the Exhibit Control storage facility at the detachment until he returned to day shift. He then returned it to the garage floor of the wife’s residence.

[23] On August 27, 2004, the detachment received a scanned letter from the Manitoba Integrated Child Exploitation Unit (the “ICE unit”). The letter advised that the ICE unit had received a database of possible offenders who had purchased child pornography off the internet from a website identified as “Sitekey” and that Mr. Pommer, who had relocated to Victoria, was identified as one of those possible offenders. In particular, the letter advised that a Christian Archer Pommer, DB: January 21, 1969, had on June 6, 2001, purchased the right to access the website named “Preteen Heaven” which contained images that “in Manitoba, satisfy the definition of child pornography”.

[24] Sitekey is an American investigation into the sale of child pornography by suspects in the U.S.A. Information about Canadian purchasers who accessed the identified child pornography websites was forwarded to the RCMP who subsequently distributed that information to the appropriate jurisdiction for follow-up.

[25] Sgt. Snell recognized Mr. Pommer’s name and referred the letter to Detective Sahota for investigation. A meeting took place between Sgt. Snell, Detective Sahota and the wife who supplied the police officers with information regarding Mr. Pommer’s whereabouts at the material time. Detective Sahota opened a criminal investigation file unrelated to the earlier “Assist the Public” file.

[26] On September 4, 2004, Cst. Johnson was advised that a criminal investigation into Mr. Pommer’s alleged possession of child pornography had been commenced. He reviewed the CDs he had earlier made and listed the images that in his opinion constituted child pornography.

[27] In November 2004, Detective Sahota connected the criminal investigation with the original request from the wife. He retrieved Cst. Johnson’s CDs which had been stored in Exhibit Control. Cst. Johnson again reviewed the CDs and prepared a written statement in which he listed and described the five images on the CD which he believed constituted child pornography, including those that contained sexual acts with prepubescent females. He inserted the written statement into the envelope containing the CDs and returned the envelope to Sgt. Snell.

[28] On December 7, 2004, Cst. Johnson, Detective Sahota and Sgt. Snell met. Cst. Johnson was assigned the investigation of the criminal file. He decided that a forensic examination of the computer’s hard drive was needed.

[29] On January 21, 2005, the wife brought the home computer into the detachment and consented to a forensic examination of its hard drive. She also spoke with Cst. Johnson. She advised Cst. Johnson that Mr. Pommer had a daily habit of accessing pornography through the internet and described the habit as “all-consuming”. She said that he would use the computer until the early morning hours, store computer data files on CD-ROMs and other storage media, was online most of the time on his laptop or at his desktop computer at work, and that when he travelled on business he always took his laptop with him. She said that he was extremely jealous and protective of his collection of pornography and would become very angry if he felt he was in danger of being discovered. She also advised Cst. Johnson that she had not used the computer since July 28, 2004, and that previously she and her daughter had only used it occasionally.

(ii) The February 24, 2005 application

[30] The home computer was deposited with Exhibit Control. On February 24, 2005, Cst. Johnson prepared an Information to Obtain (“ITO”) to be used in obtaining a search warrant for a forensic examination of the home computer. He arranged for Cst. Brookes, an expert in the field of forensic computer analysis with the Victoria Police Department (“Vic.PD”), to examine the home computer after the search warrant was obtained.

[31] Cst. Johnson’s experience in the preparation of ITOs was limited. He had previously prepared only four or five. In the application he referred to a single offence date of July 24, 2004, for possession of child pornography contrary to s. 163.1(4) of the Criminal Code. When he attended at the courthouse seeking a Justice of the Peace (“JP”) to authorize the warrant he was advised that a JP was not available and that he should phone ahead next time before attending as the JP was only available on rare occasions although one might be available the following week. He was then advised of and directed to the tele-warrant service.

[32] On cross-examination, Cst. Johnson said that he preferred to deal with a JP. He did not see the tele-warrant procedure as giving him an advantage. He explained that he pursued the tele-warrant application because he wanted to advance the investigation and have the warrant executed at a time when he knew that Cst. Brookes, who was in high demand, would be available. He said the longer the wait for the information, the more stale the information became.

[33] On February 24, 2005, Cst. Johnson faxed his application for a search warrant with the accompanying ITO to the Judicial Justice Centre (the “JJC”). The application indicated that a tele-warrant was being sought because “[n]o Judicial Justice of the Peace can be located”. In the ITO, Cst. Johnson referred to the images he had discovered on the computer on July 28, 2004, the August 27, 2004 letter from the ICE unit, and the wife’s consent to a forensic examination of the “abandoned” computer.

[34] A search warrant was issued by return.

[35] Cst. Johnson took the home computer to Cst. Brookes who created an exact copy of the hard drive. He then returned it to Exhibit Control.

[36] In his preliminary assessment, Cst. Brookes noted that the home computer had a CD burner that would enable the user to copy files from the computer onto a CD. He advised Cst. Johnson that the computer had been used to access a number of adult and child pornographic websites identified by the 2001 Sitekey investigation. He traced the purchase of access to the identified Sitekey websites to two credit card numbers. Those were subsequently traced to Mr. Pommer. He also noted that many purchases of access to the Sitekey websites had been billed to a third party billing company called “ccbill.com”.

[37] Ccbill.com is utilized widely by pornographic content providers on the internet to facilitate secure credit card sales. Cst. Johnson contacted ccbill.com by phone and learned that the company is located in the state of Arizona. When he contacted the company, however, it refused to provide him with any customer transaction information.

[38] Cst. Brookes identified the computer’s Internet Protocol (“IP”) address. The Sitekey investigation had earlier identified the same IP address for the June 6, 2001 purchase of access to the website Preteen Heaven. He also identified the password of the individual who had accessed that website, which included the maiden name of Mr. Pommer’s mother.

[39] Cst. Brookes identified 56 images on the computer’s three hard drives that would be considered child pornography under the Criminal Code and 22 internet web pages where the user may have accessed websites containing child pornography. The web pages showed that between July 16, 2004 and July 9, 2005, the user had accessed 52 websites through ccbill.com, that the user name “pommer” was used to access 42 of those websites, the user name “cpommer” was used to access one website, and that many of the websites subscribed to appeared to be sexual in nature.

[40] Cst. Brookes also located images on the computer of two partially nude females that appeared to have been captured surreptitiously and were taken in a bedroom and bathroom setting. Those images were subsequently identified as the wife and daughter and the location as the master bedroom and its ensuite bathroom.

[41] Cst. Johnson had liaised with experts in the field of child pornography. In particular, he consulted Dr. Matt Logan, the Operational Psychologist with the RCMP Behavioural Science Group, Major Crime Section in Vancouver B.C. From Dr. Logan he learned: (i) offenders typically develop collections of child pornography which victimize the children by sexually exploiting them through its production; (ii) offenders’ collections of child pornography are very important in their lives and they will preserve, move and even hide them in order to avoid their destruction; (iii) children used in the production of pornography are desensitized and conditioned to respond as sexual objects and are frequently ashamed of their portrayal in such material; and (iv) the victimized children must deal with the permanency, longevity and circulation of such a record of their abuse.

[42] Cst. Johnson knew from his initial search of the computer on July 28, 2004, and from the information he had received from the wife, that Mr. Pommer owned a laptop associated with his business. On April 5, 2005, he re-interviewed the wife. She advised him that she had never accessed a pornographic website and she did not believe her daughter had. She said that Mr. Pommer had access to the internet both at the family home and at his office. She said he had a computer at his work as well as a laptop which he took with him when he travelled frequently on business. She described Mr. Pommer’s obsession with pornography both at home and at his office as “all consuming” and that she would frequently locate paper towels into which he had masturbated near the computer desk in their home. His addiction, she said, had alienated the family and was a major factor in the breakdown of their marriage.

[43] The wife also advised Cst. Johnson that Mr. Pommer stored computer data files on CD-ROMs and other storage media, and that she believed he had stored a collection of CD-ROMs in between the insulation in the basement of their home.

[44] On April 11, 2005, Cst. Johnson attended at the wife’s home. He observed unfinished storage space adjacent to the computer desk in the basement of the home. Inside the storage space was a storage cabinet for CDs. The CDs were labelled as software, music and games. Inside the storage room, two plastic sheets of vapour barrier had been cut away and the insulation inside the cavity between the floor spaces had been moved. Cst. Johnson removed the insulation and determined that no recent construction had occurred in that space. The wife also advised him that she had noticed that the insulation in the cavity had been repeatedly moved. This information led Cst. Johnson to believe that the space had been utilized as a hiding place by Mr. Pommer for a collection of child pornography.

(iii) The April 13, 2005 application – the first rejection

[45] On April 13, 2005, Cst. Johnson applied for an expanded search warrant of Mr. Pommer’s condominium and his office. In the ITO he again referred to only a single offence date of July 27, 2004. In advance of attending at the courthouse he phoned for a JP and was advised one was not available. He then employed the tele-warrant service. In his application he noted that “[n]o Judicial Justice of the Peace can be located”.

[46] The application was rejected on the grounds that there was no link between the places to be searched and the criminal offence of possession of child pornography on July 27, 2004.

[47] Cst. Johnson maintained that he had reasonable and probable grounds to obtain the search warrant as he had seen the illegal images. He decided to obtain further information about Mr. Pommer’s current computer and believed he needed to better articulate his grounds.

(iv) The PIPEDA request

[48] On April 14, 2005, Cst. Johnson filed a search request under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (a “PIPEDA search”) with Shaw Communications Inc., an internet service provider, to determine if Mr. Pommer had internet connections at his condominium and office. On April 18, 2005, the search came back identifying account numbers in Mr. Pommer’s name at both locations.

[49] On April 30, 2005, he re-interviewed the wife. She brought to the detachment three sets of separate credit card records in Mr. Pommer’s name. One of the credit card numbers matched the one Cst. Brookes had identified as having purchased access to 113 suspected child pornography websites between July 11, 2003 and July 12, 2004. Cst. Johnson learned that that credit card had been reported as stolen on February 5, 2005. He traced another of Mr. Pommer’s credit cards to the purchase of access to the Preteen Heaven website on June 6, 2001, and learned that that credit card account had been closed on October 1, 2001. He also learned that the third credit card in Mr. Pommer’s name had been cancelled on September 11, 2002.

[50] After a cursory review of the records, Cst. Johnson formed the belief that Mr. Pommer’s habit was ongoing and getting worse. Rather than relying on the records provided by the wife, Cst. Johnson decided that he should obtain a search warrant for them.

(v) The May 17, 2005 applications

[51] On May 17, 2005, Cst. Johnson applied for three search warrants for the credit card records from three separate financial institutions for the periods July 5, 2001 to September 11, 2002 inclusive, May 1, 2001 to October 1, 2001 inclusive, and May 1, 2001 to March 1, 2005 inclusive, respectively. In all of the applications he identified the offence dates as June 6, 2001, June 23, 2002 to July 20, 2004, and July 20, 2004 to the present. Again, he was advised by an individual at the courthouse that no JP was available and again he included in the ITO that “[a] Justice could not be conveniently located”. At 8:55 p.m. that evening he faxed off the requests to the JJC.

[52] All three search warrant applications were granted. Cst. Johnson forwarded the search warrants to the legal officer of each financial institution. One was to an out-of-province institution. He ensured that the out-of-province warrant was properly endorsed and arranged for it to be executed by a police officer in that province.

[53] The credit card records showed that Mr. Pommer had made a purchase from Compusmart Victoria (a computer hardware retailer) on August 8, 2003, for $2,260.62. That amount approximated the cost of a new computer at that time. They also showed that Mr. Pommer had spent in excess of $6,000 on access to websites and had purchased in excess of 235 memberships to access pornographic content, one of which included the purchase of access to the child pornography website Preteen Heaven. The credit card that he had used to purchase access to that website appeared on his statement as “Staff Co” from St. Petersburg, Russia. The amount was charged in Russian rubles and converted into Canadian dollars.

[54] Detective Nelson of the Dallas Police Service advised Cst. Johnson that he had utilized software to capture the Preteen Heaven website on June 19, 2001. At that time Detective Nelson had noted that the website contained a total of 1,902 professional and pornographic images and videos, of almost exclusively nude and semi-nude females, between the ages of seven and twelve.

[55] From the information in the credit card records, Cst. Johnson compiled a spreadsheet of what he believed were relevant transactions of purchases of access to child pornography websites by Mr. Pommer. Cst. Johnson understood that the purchases would not appear on Mr. Pommer’s credit card statements under the name of the website, but would be transacted through a third party billing company such as ccbill.com in order to obscure identification of the target source. Although Cst. Johnson was aware the ccbill.com website allowed members to purchase access to child pornography websites, he also knew that it could be used to access legal content. Therefore, while he identified 81 credit card transactions billed to ccbill.com, he limited the entries on his spreadsheet to credit card purchases that were out of the ordinary, such as purchases that went through Moscow or St. Petersburg, Russia.

[56] Cst. Johnson also contacted Janis Grey who was an ICE investigator in Vancouver and provided her with his spreadsheet. After examining the spreadsheet she prepared a statement for him in which she described the purchases reflected in the spreadsheet over the four year period as an ongoing habit that was consistent with a long-term collector of child pornography. In her opinion there would be current evidence of Mr. Pommer’s habit. She stated:

The subject, Pommer has utilized his credit card to purchase access to websites that contain child pornography. The activity appears to have been occurring for four years. Due to the amount of purchases and his history with possessing child pornography, I believe that he will continue to collect and amass his collection of child abuse images and still be in possession of child pornography despite changing residences.

(vi) The July 2, 2005 application – the second rejection

[57] On July 2, 2005, Cst. Johnson was advised that no JP was available. He again applied to the JJC for a search warrant of Mr. Pommer’s condominium and office indicating that “[n]o Judicial Justice of the Peace can be located”. In this application he listed the offences and their dates as possession of child pornography on June 6, 2001, and attempt to access child pornography from July 23, 2002 to the present. Again, the application was rejected. The reasons for the application’s rejection were stated as follows:

2sw applications denied at this time. Grounds as presented and when considered in its totality falls short of supporting reasonable grounds to believe items to be searched for will be at locations to be searched. Many conclusory statements. Insufficient grounds to link offence alleged to items sought at locations sought to be searched – no indication that sites accessed contain child pornography as opposed to legal adult material. Insufficient grounds to believe offence occurring now as search previously done and site previously accessed.

[58] Cst. Johnson returned to Janis Gray. This time he asked her to determine if the credit card purchases on his spreadsheet could be specifically related to websites of child pornography. She provided him with a list of merchant names (the “merchant names list”), which represent billing companies as they would appear on credit card statements, and that had been identified by the Sitekey investigation as associated with and having marketed child pornography websites.

[59] Cst. Johnson compared the names from the merchant names list with the credit card purchases on his spreadsheet and found 47 matches. For example, the website Preteen Heaven appeared on Mr. Pommer’s credit card as a June 6, 2001 Staff Co purchase in Russian rubles from St. Petersburg, Russia. Cst. Johnson did not refer to the 81 transactions which appeared as billed to ccbill.com.

[60] Cst. Johnson also obtained an opinion from Dr. Keith Lanning, a retired FBI agent, who is an expert in child pornography. Dr. Lanning described the strong emotional attachment that collectors of child pornography have to their collection of such images, as well as the intrinsic value that type of collection has for trading and/or selling. For those reasons, he said, collections of child pornography are rarely destroyed but are typically retained for extended periods of time, sometimes years. He stated that accessing child pornography is an ongoing habit which becomes more addictive over time.

[61] Before resubmitting his next and final application for a search warrant of Mr. Pommer’s condominium and office, Cst. Johnson conferred with more experienced colleagues in the preparation of his ITO. In this application he listed the dates for the offence of possession of child pornography from June 6, 2001 to the present, and for the offence of attempt to access child pornography from July 23, 2002 to the present. He did not include those names from the merchant names list, including ccbill.com, that he was not certain sold exclusively illegal material.

(vii) The July 7, 2005 final application

[62] On July 7, 2005, Cst. Johnson phoned and was advised that a JP was available. He attended at the courthouse with his application. The JP authorized the search warrant for Mr. Pommer’s condominium and office, for the date of July 8, 2005, between the hours of 9:00 a.m. and 5:00 p.m.

[63] On July 8, 2005, a team of three or four police officers executed the search warrant on Mr. Pommer’s condominium. They knocked on his door and announced their presence. When there was no answer after 30 seconds, the concierge used her key to open the residence. Mr. Pommer was found in the condominium in his bathrobe. He was in the room where a computer monitor was on and displaying an image of child pornography. He was detained, Chartered and given the police warning. He asked to speak with a lawyer. He was given an opportunity to dress before he was transported to Vic.PD.

[64] Mr. Pommer was held at the detachment until searches of his condominium and office were completed. He was provided access to a lawyer and released without being charged.

[65] While he was detained, Cst. Johnson had a brief conversation with Mr. Pommer. He advised Mr. Pommer that charges against him would be pending subject to the forensic searches of his computers. He asked Mr. Pommer if he wanted to tell him anything about the contents of his computers and in particular the pornography on it. Mr. Pommer replied that he didn’t make any of it but just bought it.

[66] The items seized from Mr. Pommer’s condominium included a desktop computer tower, a video camera, 36 CDs, 52 DVDs and two videotapes. The items seized from his office included a laptop computer and 52 CDs. One of the CDs was labelled “Old Emails”.

[67] On cross-examination, Cst. Johnson admitted that he did not know how the “undeleting” software program he had used operated, except to say that it made invisible deleted files visible. He said deleted files went into the computer’s recycle bin where the software he used had revealed the 110 invisible images as well as documents pertaining to Mr. Pommer’s business. He acknowledged that the content of a website could be changed at any time and that the name of a website might not accurately reflect its content. He advised that he had prepared the final ITO in collaboration with his colleagues and Cst. Brookes. He stated that Cst. Brookes had advised him that a credit card connected to Mr. Pommer had purchased access to illegal websites through ccbill.com. He admitted that he did not know how to distinguish images that were intentionally, unintentionally or passively acquired onto a computer, and acknowledged that they could be deleted intentionally by a user, automatically by the operating system, or by third party programs.

B. Cst. Brookes’ forensic analysis of the home computer

[68] Cst. Brookes determined that the manufacturing date of the home computer was January 30, 2000, that it contained three hard drives and that it used the Windows XP operating system. He utilized “Encase”, a forensic software program, to examine the hard drives. Although the hard drives were small, he noted they had been used a lot. He also noted that the computer could download images from a video camera. He determined that Mr. Pommer, the wife and the daughter had all accessed the computer.

[69] Cst. Brookes began his forensic analysis with a “hashing” to obtain an exact copy of the hard drives. He then examined where the computer stored data. He said a computer’s stored data and e-mails often provide clues to the user’s identity.

[70] Cst. Brookes explained the following about a computer’s stored data with the Windows operating system. Data can be stored in allocated or unallocated space. Saved data is stored in allocated space which cannot be reused by other data. Data stored in allocated space is visible to the computer user. Saved data that is deleted is stored in the recycle bin. Data in the recycle bin is still allocated but invisible to the computer user. A second process is required to unallocate the space used by data in the recycle bin. This is typically done by emptying the recycle bin. Even when the recycle bin is emptied, the deleted data remains in unallocated space until it is overwritten by new data. Deleted data that is not overwritten can be restored or made visible through the use of specialized software.

[71] Data is stored in blocks of space. If the rewritten data contains fewer blocks of space than the deleted data, the difference is referred to as “slack” space. Slack space is technically in unallocated space but in fact remains allocated space and cannot be used to store new data. Data can be stored in slack space but is only visible through the use of specialized software.

[72] Cst. Brookes examined other functions of the computer. He noted the time and date on the computer and the time and date the computer recorded the creation or modification of a file. That information, he explained, assists in identifying the sequencing or series of actions by a computer’s user and provides corroborative evidence of when and by whom a file was last accessed. He looked for linked files that do not require a navigational path to access and which record what material has been accessed. If a linked file is frequently accessed, that suggests the user had knowledge of the content of the file and intended to access it. He reviewed the scope and nature of the stored data for material of interest. He searched for the source of the computer’s data. He said data downloaded from the internet can be stored to the computer’s folder structure or to the default location of the temporary internet file. He identified Mr. Pommer’s e-mail address. He also used an anti-virus software program to check for viruses.

[73] Encase revealed 359,093 files on the computer. Creation of the files began on January 26, 2001 and ended on July 28, 2004. Cst. Brookes found approximately 110 images of child pornography. Over 50 were found in allocated space in a saved directory, albeit through a long and complicated navigational path. Some of the images were thumbnails. Larger and more blurry versions of the same smaller thumbnail image suggested the user had clicked on and enlarged the latter. Over 60 images were found in an unallocated space that was not visible to an ordinary user.

[74] Cst. Brookes located a software program “History Kill” on the computer. This program deletes on a regular basis any trace of a computer’s use including its internet history. The program was registered to Mr. Pommer and customized. Some artefacts in the unallocated space had been destroyed by the History Kill program.

[75] In the slack space of unrelated rewritten data of a couple’s wedding, he discovered a “Little Virgins” picture file of a nude young teen holding a blue ribbon. It was the same image in the “Little Virgins” banner ads (advertisements for web pages) located in Mr. Pommer’s e-mail directory. In Cst. Brookes’ opinion, the enlarged “Little Virgins” image found in the allocated slack space required the user to have accessed that image from the “Little Virgins” website. Accessing it from the website would have saved the image to allocated space. Deleting it would have sent the image to the recycle bin. Rewriting it with data of images from an unrelated wedding with fewer blocks of space than the old data would have caused the image to be stored in the rewritten data’s slack space.

[76] In the recycle bin were documents relating to Mr. Pommer’s business. Also found in unallocated space were thumbnails of “Little Ukrainian cuties girls gallery”, images titled “Youngest Pink Pussies” that were marketed as “hardcore situations and full exposure of fresh young bodies”, and images titled “TEEN FuNS”.

[77] Pornographic images of very young and under-18 teens, both male and female, were found in banner ads in the computer’s unallocated space. Titles of the images in the banner ads included Lolita’s camp, Pure Lolitas, Lolita’s Joy, Young and Fucked, Fucking Young, Lovely Nymphets, Lolita boys, Nudeboys World, Virgin Boys, Little Boyz, Boys.Love, On Boys, CharmingBoys, and Little Virgins. Some images in the ads depicted children engaged in sexual activity.

[78] A banner ad is not evidence that a user has accessed that website. However, a review of the computer’s internet history revealed e-mail contact with 22 of the banner ad websites. Cst. Brookes explained that direct actions were taken to access those websites through third party billing companies. For example, Cst. Brookes determined that a banner ad for the website “Lovely Young Girls” was accessed in March 2004. Cst. Brookes believed that many had been deleted by the “History Kill” program.

[79] The two “Rachel” images first detected by Cst. Johnson were found in the unallocated temporary internet files folder. The file creation date for those images was July 28, 2004.

[80] In the directory structure of allocated space, Cst. Brookes located a folder titled “lo”. This folder was created by the user saving material from the internet. The “lo” directory contained 376 files. A link file examination revealed that “lo” had been accessed at least 30 times suggesting intended use. The folder contained six images of “lolitas” or prepubescent girls and 50 images of “Little Virgins” or young female teens some of whom were engaged in sexual activity. The source of the “Little Virgins” images was traced to the TinyVirgins.com website by means of an archiving website. The e-mail directory indicated access to that website occurred on July 9, 2004. In Cst. Brookes opinion, the “Little Virgins” image was likely saved to the directory folder on that date.

[81] Cst. Brookes also found several hundred surreptitious thumbnail images that had been created by a video camera. The thumbnails were stored by the Windows operating system in the C:\IMGFOLIO\Library directory and were partially obscured within a black border indicating an attempt to delete the original image. Several images were enlarged. The presence of these enlarged images suggested the user had opened them by double-clicking onto the smaller thumbnail version. The wife identified some of the images as that of the daughter.

[82] The directory in which the thumbnails were stored was linked to Mr. Pommer’s business files. The thumbnails were mingled with documents relating to Mr. Pommer’s business within the same directory. The user name and password associated with Mr. Pommer were used to access the linked file. On one occasion when the images were accessed, two minutes later an e-mail associated to Mr. Pommer’s business e-mail was sent. On another occasion, 50 seconds after the images were accessed an e-mail concerning a proposal for the use of printers was sent.

[83] The sequencing of the computer’s complete internet history was in seconds and minutes. Cst. Brookes explained that this form of sequencing indicated a natural and normal flow of accessing websites, compared to the erratic access that occurs when access to websites is controlled by an external source such as a virus. In his opinion, the computer’s internet history showed normal sequencing of access to sexually oriented material, including child-related material, immediately following or preceding accessing of Mr. Pommer’s business e-mail. For example, on June 21, 2004, the user accessed an e-mail account associated with Mr. Pommer’s business. Shortly thereafter, the user searched Yahoo for Lolita member access. In Cst. Brookes’ opinion, this was evidence the user was controlling what he wanted to see by typing in the website’s address.

[84] E-mail subscription accounts were reviewed. A number appeared to be for child pornography. The titles of subscriptions to these websites typically matched their content. Over 30 newsgroups (public internet discussion forums) for suggestive illegal content (e.g. erotic teens, preteen erotica, youngteens, Lolita from heaven, little girl, hotteenmodels, earlyteen) had been subscribed to. In 2004, subscription requests were sent to “teenkelly” and “mycuteteens”. Many newsgroups contained large numbers of unread messages. However, some encoded images had been accessed. While e-mail activity associated with these newsgroups was partially hidden, the ccbill.com billings indicated that the user had signed up to the websites using the e-mail prefix of ajpommer and a password that included the maiden name of Mr. Pommer’s mother. Cst. Brookes also matched Mr. Pommer’s July 13, 2004 banking activities to the purchase of subscriptions to one of these websites and linked four June 16, 2004 credit card transactions to ccbill.com with four subscriptions to these websites on June 15, 2004.

[85] Cst. Brookes also detected an intermingling of access to websites such as “My Nymphet Teen, “Preteen Digest”, “Foreign Lolitas” and other teen references with access to Mr. Pommer’s business website on February 10, 2004. Recovered internet artefacts from unallocated space revealed illegal website requests using credit card information, a username and password connected to Mr. Pommer, and billings through ccbill.com.

[86] The e-mail activity was directed. It included many business related e-mails along with suggestive child related content e-mails. For example, e-mails directed to Mr. Pommer included both business related and child pornography messages such as “Getting started with Teenie Boopers fetish club”. Another e-mail directed to Mr. Pommer welcomed him to “teensthatmasturbate”. A June 6, 2002 e-mail referred to membership in an underage club. Sent e-mails included one to Sun.bill.net, a third party billing company, and indicated that the user was not able to access what he had subscribed to. Another referred to Lolita subscriptions. Deleted e-mails were found to contain illegal images.

[87] Cst. Brookes determined that the computer’s IP address matched the one identified by the Sitekey investigation for the purchase of access to the Preteen Heaven website and that the computer’s IP address had purchased access to other websites listed in the Sitekey investigation.

[88] The anti-virus software used by Cst. Brookes was a 2006 version. He was satisfied the computer’s anti-virus software was functioning correctly and was last used on July 20, 2004. He saw no evidence that would indicate a virus could have been responsible for the type of content that was found on the computer. He was satisfied the computer’s illegal content was not installed remotely or externally by pop-ups, a malicious program or spam. In his opinion, the computer’s contents were consistent with a pattern of direct and deliberate actions by its user, and that Mr. Pommer was the primary user of the computer because the stored data and e-mail access were directly connected to Mr. Pommer and to documents that appeared to have been created by Mr. Pommer.

C. Cst. Brookes’ forensic analysis of the condominium computer

[89] Cst. Brookes employed the same process he used with the home computer to secure the data and obtain an exact copy of Mr. Pommer’s condominium computer. The computer showed a start-up date of November 3, 2004, and Mr. Pommer as one of the users with a password that included the maiden name of Mr. Pommer’s mother. The operating system was Windows XP. A “Clean Space” program which is similar to “History Kill” had been installed. The program was registered to Mr. Pommer.

[90] Hidden files contained hundreds of images depicting nude children with exposed sexual organs and some engaged in sexual conduct. Cst. Brookes found linked files to “lo” that contained images of pre-pubescent or pubescent females. Certain addresses of child pornography websites had been bookmarked. The e-mail account was associated with Mr. Pommer and indicated access to child pornographic newsgroups. Those newsgroups had been opened and viewed by the computer’s user. A series of subscriptions to child pornography websites were billed through ccbill.com and accessed by a password that included the maiden name of Mr. Pommer’s mother. One attempted access to a subscription indicated that his credit card could not be processed. Some access sites required a decoder. In Cst. Brookes’ opinion, all of these actions required direct and deliberate steps by the user.

[91] The computer also contained the surreptitious images of the wife and the daughter found previously on the home computer.

D. The search of Mr. Pommer’s office

[92] The CDs seized from Mr. Pommer’s office disclosed old e-mails with subscriptions to illegal websites. One subscription was dated November 2, 2004, with a sign up through ccbill.com by C. Pommer with the password that contained the maiden name of Mr. Pommer’s mother. Another subscription to an illegal website was cancelled as of November 2, 2004. Yet another subscription to an illegal website was dated August 18, 2004. Using the website archive.org, Cst. Brookes sought to determine the historical content of the illegal websites. He obtained the content of one website as of October 13, 2004, which showed images of nude young girls and in some cases extremely young, pre-pubescent girls. Cst. Brookes said the content of these websites generally stays the same in order to maintain the continuity of their revenue.

E. The issues

[93] The issues to be addressed on Mr. Pommer’s application to exclude evidence based on alleged s. 8 Charter breaches are:

1. Did the July 28, 2004 warrantless search of the home computer by Cst. Johnson infringe Mr. Pommer’s s. 8 Charter right? If it did, should the evidence be excluded pursuant to s. 24(2)?

2. Did the February 24, 2005 and May 17, 2005 search warrants obtained by tele-warrant breach Mr. Pommer’s s. 8 Charter right by failing to comply with the requirements of s. 487.1(1) of the Criminal Code? If they did, should the evidence be excluded pursuant to s. 24(2)?

3. Did the ITO in support of the July 7, 2005 search warrant contain omissions, misstatements and misrepresentations, intentional or otherwise, requiring the search warrant to be vacated on the grounds of having breached Mr. Pommer’s s. 8 Charter right? If it did, should the evidence be excluded pursuant to s. 24(2)?

F. Analysis

(i) The July 28, 2004 warrantless search

[94] The threshold issue to be determined is whether Mr. Pommer had a reasonable expectation of privacy to the information on the home computer. If the answer to that question is in the negative, then he has no standing to advance his claim of a s. 8 Charter breach. If the answer to the question is in the affirmative, the Court must determine whether Cst. Johnson’s search of the computer was conducted in a reasonable manner.

[95] A warrantless search is presumptively unreasonable. The onus then shifts to the Crown to establish that (a) the conduct was authorized by law; (b) the law itself was reasonable; and (c) the manner in which the search occurred was reasonable: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 161. The Crown admits that if the Court finds Mr. Pommer had a reasonable expectation of privacy in the home computer, then his s. 8 Charter right was breached by the warrantless search. The Court must then consider whether the evidence obtained as a result of that breach should be excluded pursuant to s. 24(2).

[96] The Crown contends that Mr. Pommer had no reasonable expectation of privacy and therefore his s. 8 Charter right was not triggered. The defence submits Mr. Pommer had a reasonable expectation of privacy to the information on the computer because it was invisible to the ordinary user and he had not abandoned his privacy interest in that information or consented to a search of it by the state.

[97] The circumstances in which the search occurred involved an “Assist General Public” file. At the outset the wife made it clear that she did not wish or intend to file a criminal complaint with the police, but merely wanted to be informed whether images of her and the daughter had been distributed over the internet from that computer. Sgt. Snell also was clear in his testimony that he had no intention or purpose of commencing a criminal investigation into the wife’s reported incident.

[98] The meaning of “reasonable expectation of privacy” in s. 8 was discussed in Hunter v. Southam Inc. Dickson J., for the court, adopted a broad, purposive analysis. After finding that the guarantee was vague and open, devoid of specificity, and lacking any particular historical, political or philosophic context when compared to the United States Fourth Amendment, he concluded at ¶19 that:

an assessment of the constitutionality of a search … must focus on its ‘reasonable’ or ‘unreasonable’ impact on the subject of the search … and not simply on its rationality in furthering some valid government objective.

[99] At ¶25 he offered the following comments:

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from ‘unreasonable’ search and seizure, or positively as an entitlement to a ‘reasonable’ expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
[Emphasis in original.]

[100] Therefore, the key issue is whether Mr. Pommer has established that he held a reasonable expectation of privacy in the home computer and its contents.

[101] The test for determining whether an accused has established a reasonable expectation of privacy was addressed in R. v. Edwards, [1996] 1 S.C.R. 128. In Edwards, the accused stored items at his girlfriend’s apartment. The court held that he did not have a reasonable expectation of privacy in the apartment because he had no control over the apartment’s use. At ¶45, Cory J., on behalf of the majority, underscored the need to consider the “totality of circumstances” and provided the following list of factors for consideration:

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[102] In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, the Supreme Court of Canada noted at ¶19-24 that Edwards gave particular emphasis to (1) the existence of a subjective expectation of privacy; and (2) the objective reasonableness of the expectation. It also identified three types of privacy interests protected by s. 8 - personal privacy, territorial privacy and informational privacy - in descending order of strength of claim.

[103] The circumstances in Tessling involved a police aircraft flying over the accused’s residence using FLIR technology in order to identify the patterns of heat distribution on the external surfaces of the house. The purpose of the search was to identify the accused’s activities inside his residence, on a suspicion that he was involved in a marijuana grow operation. The privacy interest at issue in Tessling was essentially informational but also overlapped the accused’s territorial privacy. In the context of informational privacy, Binnie J. commented on where the “reasonableness” line should be drawn. He stated at ¶25:

Privacy is a protean concept, and the difficult issue is where the ‘reasonableness’ line should be drawn. Sopinka J. offered a response to this question in the context of informational privacy in Plant, supra, at p. 293, as follows:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
[Emphasis added.]

[104] At ¶29, Binnie J. concluded that “the reasonableness line has to be determined by looking at the information generated [by the search] and then evaluating its impact on a reasonable privacy interest.” He then applied an adaptation of the Edwards factors to the circumstances in Tessling and found that the technology was so primitive that it provided little if any material information on the accused’s activities and therefore did not breach his s. 8 Charter rights.

[105] This issue was again revisited in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631. In that case security guards opened a locker at a bus depot from which they had detected a strong odour of marijuana. When their suspicions were confirmed, the guards locked it back up and called the police. The police had the guards reopen the locker and seized the drugs. On the issue of the reasonable expectation of privacy by the locker’s owner, Arbour J. stated at ¶33 to 34:

The appellant initially had a reasonable expectation of privacy regarding the contents of his locker. His privacy was invaded by the security guards. The guards then placed his belongings back in the locker. The appellant’s reasonable expectation of privacy was continuous. Just because the security guards violated his privacy once does not mean that any subsequent violations will be permissible. The conduct of the police – opening of a locked locker over which the appellant still had lawful control and taking possession of its contents – constituted a ‘search’ within the meaning of s. 8 as well as a ‘seizure’, the essence of which is the ‘taking of a thing from a person by a public authority without that person’s consent’: R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.), per La Forest J., at p. 431.

This Court has held that in certain circumstances, the mere ‘transfer of control’ of evidence from a private citizen to police can constitute a seizure within the meaning of s. 8. In Dyment, supra, La Forest J. said, at p. 435:

If I were to draw the line between a seizure and a mere finding of evidence, I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject-matter allegedly seized.

In this case, it cannot reasonably be said that the appellant had ceased to have a privacy interest in the contents of his locker. The subsequent conduct of the police should be considered a seizure within the meaning of s. 8. I see no basis for holding that a person’s reasonable expectation of privacy as to the contents of a rented and locked bus depot locker is destroyed merely because a private individual (such as a security guard) invades that privacy by investigating the contents of the locker. The intervention of the security guards does not relieve the police from the Hunter requirement of prior judicial authorization before seizing contraband uncovered by security guards. To conclude otherwise would amount to a ‘circumvention of the warrant requirement’ (Law, supra, at para. 23). The security guards’ search of the locker, which is not subject to the Charter, cannot exempt the police from the stringent prerequisites that come into play when the state wishes to intrude the appellants’ privacy (R. v. Colarusso, [1994] 1 S.C.R. 20 (S.C.C.), at p. 64; Law, supra, at para. 23).

[106] The principles in Buhay were considered in R. v. Washington, 2007 BCCA 540. The circumstances in Washington involved a Helijet employee who opened a package that contained what he suspected was cocaine. He resealed the package and called the police who reopened the package. The contents were ultimately determined to be crystal meth. Ryan J.A., for the majority, adopted the Buhay principles and concluded that the accused owner of the packet retained a privacy interest in its contents even after the non-state search. At ¶57, she referred to several Supreme Court of Canada decisions (R. v. Wise, [1992] 1 S.C.R. 527 at 533; R. v. Evans, [1996] 1 S.C.R. 8 at ¶11; and Tessling at ¶18) which had “defined such a ‘search’ as state activity that invades a personal expectation of privacy.”

[107] In my view, the circumstances of Cst. Johnson’s search of the home computer are distinguishable from those in Buhay and Washington. Applying the Edwards factors also results in a finding that Mr. Pommer had no reasonable expectation of privacy in the computer.

[108] When Mr. Pommer left the family home, he took his laptop but left the family computer. When he returned to pick up some more of his belongings he accessed the computer but again left it in the family home. He knew that the locks on the family home had been changed by the wife. By leaving the computer in the family home he relinquished his ability to access it, including the right to admit or exclude others from accessing it. He was not present, in possession or control of the computer at the time it was searched by Cst. Johnson.

[109] The computer was a family asset. It was purchased during the Pommer marriage, was situated in the family home and was accessed by all three members of the Pommer family. It was not property to which Mr. Pommer had an exclusive proprietary or possessory right but one that was held collectively by all the members of the family. The wife’s joint interest in the computer gave her the right to consent to another, including Cst. Johnson, accessing the computer.

[110] While the issue of the computer’s ultimate legal ownership and possession was not settled between the parties until February 14, 2005, the separation agreement is vague and uncertain in its identification of what personal assets each party would retain. Noteworthy is that Mr. Pommer never expressly asked for possession of the computer and it was not expressly listed in the items of personal property he was to retain.

[111] In these circumstances I find that Mr. Pommer could not have retained a reasonable expectation of privacy over the computer. The term “reasonable” imports a contextual basis for the analysis. It may be that Mr. Pommer never anticipated that someone might locate the child pornography that he had deleted from the computer’s allocated space. He may have had a subjective expectation of privacy although there is no evidence of this from him. However, even if it can be inferred that Mr. Pommer had a subjective expectation of privacy in the deleted or hidden material on the home computer, that expectation could not be said to have been objectively reasonable in the circumstances in which the computer was left in the family home with the wife.

[112] The defence relies on R. v. James, [2005] O.J. No. 4126 (S.C.J.), a case involving some similarity, where the trial judge found a s. 8 breach and excluded the evidence pursuant to s. 24(2). In James, the accused’s estranged wife turned over his computer to the police out of an expressed concern that it might have contained sexually explicit material. The accused was demanding his computer be returned to him. The police did not obtain the accused’s consent. Their warrantless search of his computer disclosed images of child pornography which provided the reasonable and probable grounds to apply for a search warrant.

[113] In comparison, Mr. Pommer never demanded the return of the home computer, appeared to show no further interest in it after he left it in the family home, and the wife maintained a possessory if not proprietary interest in it.

[114] The Court must look at the totality of the circumstances in order to determine whether the expectation of privacy was reasonable in the circumstances of a particular case. I am satisfied that Mr. Pommer could not have a reasonable expectation of privacy in the computer after he vacated the family home and therefore has no standing to advance a claim of a s. 8 Charter breach.

[115] In the event I am in error on this issue, I propose to consider whether the evidence obtained from the warrantless search should be excluded pursuant to s. 24(2) as there is no issue that if Mr. Pommer had standing, the search would have been unreasonable and contravened his s. 8 Charter right.

(ii) The February 24, 2005 and May 17, 2005 tele-warrant search warrants

[116] There is no issue that Cst. Johnson had reasonable and probably grounds to apply for these search warrants. The defence’s limited submission on this issue is the claim that Cst. Johnson failed to meet the requirements of s. 487.1(4) (a) of the Criminal Code. Section 487.1(4) (a) states:

An information submitted by telephone or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice;

[117] The defence submits that although Cst. Johnson inquired if a JP was available, he should have expanded that inquiry to when a JP would be available. The defence further submits that there was no apparent urgency to the February 24, 2005 and May 17, 2005 search warrant applications to preclude him from waiting until a JP was available.

[118] With respect, this submission has no merit. Cst. Johnson was advised that the availability of a JP to authorize a search warrant was rare. He was told that it was questionable when that person might be available at all. In my view, Cst. Johnson could not be expected to check in each day or week as to the availability of a JP. To question his decision to proceed with a tele-warrant application in these circumstances would, in my view, impose an oversight role by the Court into the timing of a police investigation. I do not see the courts’ role as one requiring the undertaking of such oversight; nor did the Court of Appeal in R. v. Smith 2005 BCCA 334, where Ryan J.A. stated at ¶42:

The appellant argued before us that it was not so much the availability of a justice of the peace that mattered, he submitted it was the failure of the police officer to make any inquiries as to availability that ought to have been considered by the trial judge. I am not persuaded that the trial judge erred in failing to consider the lack of inquiry. He was satisfied that the police officer believed that no one was available, and he could not say on the evidence that the police officer was wrong in his understanding. The onus is on the person bringing a challenge under the Charter to prove a violation of his rights on a balance of probabilities. In my view, it cannot be said that the trial judge erred in failing to find that the police officer was wrong in his understanding or that there was a justice of the peace available.

[119] These comments are apposite to the circumstances in this case. They are a complete answer to this issue raised by the defence and accordingly I find the tele-warrant procedure used by Cst. Johnson for these two search warrants was not a breach of Mr. Pommer’s s. 8 Charter right.

(iii) The July 7, 2005 search warrant

[120] The defence submits the difference between the first and second rejected ITOs, with the final ITO authorizing the search warrant of Mr. Pommer’s condominium and office, represented a deliberate attempt by Cst. Johnson to mislead the authorizing JP.

[121] I cannot agree with that characterization. In my view, Cst. Johnson presented as a sincere, fair-minded and well-intentioned officer who was trying to do his best in preparing an ITO that would meet the requirements for authorization. For example, in the ITO he omitted reference to Mr. Pommer’s purchases through ccbill.com as that third party billing company also transacts purchases for legal material.

[122] Admittedly, Cst. Johnson’s experience in preparing such a document was limited and he made errors. One example of such an error was his initial reference to only a single offence date. In cross-examination, he candidly admitted other inadvertent errors. He said that changes he made between the initial and final ITOs were done in order to better articulate his reasonable and probable grounds and to focus on what he believed was the relevant information, namely that the home computer contained a mixture of business content, personal content and child pornography.

[123] I am satisfied that any omissions, misstatements, or misrepresentations made by Cst. Johnson were not deliberate or intentional but merely his attempt to bring together a vast amount of information in a coherent manner with his limited understanding of the intricacies of how the computer functioned. I find that the steps he took with each ITO did not display a pattern of disregard for Mr. Pommer’s Charter rights but rather reflected an intention with each successive ITO to better articulate his reasonable and probable grounds and to meet the authorizing justices’ concerns.

[124] The rejection of the July 2, 2005 ITO was, in my respectful view, in error. The JP stated “insufficient grounds to believe offence occurring now as search previously done and site previously accessed”. He had clearly not looked at the two offences alleged to have been committed and for which the warrant was being sought. He assumed that the ITO referred to the single offence alleged in the April 14, 2005, rejected application. The JP also misunderstood the warrant to seek evidence only of offences that were occurring at the time of the application when in fact the application included alleged offences dating back to 2001. The JP also states “[n]o indication that sites accessed contain child pornography as opposed to legal adult material”. In fact, the ITO addressed this issue in several paragraphs: at ¶28 it referred to Mr. Pommer’s purchase of access to Preteen Heaven which the Sitekey investigation had identified as a child pornography website; at ¶48 it referred to Cst. Johnson having personally viewed images that in his opinion constituted child pornography; at ¶59 it referred to Cst. Brookes’ identification of 56 images that, in his opinion, constituted child pornography; and at ¶60 it referred to Cst. Brookes’ location of 22 internet web pages containing child pornography which, in his opinion, had been accessed by the user of the computer.

[125] The defence challenges the accuracy of a number of Cst. Johnson’s statements in the July 7, 2005 ITO. Counsel submits that if the impugned paragraphs are found to be misleading, they must be excised, which would leave insufficient reliable information upon which the authorizing JP could have issued the search warrant.

[126] The scope of a reviewing judge’s jurisdiction is very narrow. The starting point was reiterated in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, which echoed the court’s earlier ruling in R. v. Garofoli, [1990] 2 S.C.R. 1421, where Sopinka J. stated at ¶68:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[Emphasis added.]

[127] In Araujo, Lebel J., for a unanimous court, summarized the standard of review at ¶51:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

[Emphasis in original.]

[128] This standard applies equally to the review of search warrants: see R. v. Wiley, [1993] 3 S.C.R. 263, and R. v. Grant, [1993] 3 S.C.R. 223. It requires full, frank and fair disclosure, but not every fact that might be relevant (R. v. Moore, [1991] B.C.J. No. 2500 (Prov. Ct.) (QL); R. v. Chambers (1983), 37 C.R. (3d) 128 (B.C.C.A.), aff’d [1986] 2 S.C.R. 29; R. v. Concepcion, [1994] B.C.J. No. 1969 (C.A.) (QL)). Evidence that contains misstatements, omissions and half-truths will generally be excluded if found to have been made in furtherance of a deliberate intent to mislead or to have been so poorly drafted as to be misleading: see R. v. Melenchuk, [1993] B.C.J. No. 558 (C.A.) (QL), R. v. Norris, [1993] B.C.J. No. 1900 (C.A.) (QL), R. v. Grant, and R. v. Plant, [1993] 3 S.C.R. 281.

[129] In Plant, Sopinka J., speaking for the court, concluded that a misstatement did not affect the validity of a search warrant where it was not made for the purpose of deliberately or intentionally attempting to mislead the issuing justice. He stated at ¶30:

…the appellant has not pointed to new evidence which would indicate that the misstatement by the officer was anything more than a good faith, albeit erroneous, attempt to draft the information concisely by omitting reference to the step between the general tip and the conclusion as to the exact address of the residence identified.

[130] The defence focuses on certain key paragraphs that it submits were misleading. In particular, counsel submits ¶26 was in error. That paragraph states:

The examination of one secondary computer accessed by Christian Archer POMMER reveals that his work is mixed with his pornographic activity. Documents; spreadsheets and business correspondence related to [his business] were located in the same directories as child pornography was found. For this reason, Cst. Greg JOHNSON believes that child pornography will be present at Christian Archer POMMER’S professional address as well as his home, on any computers to which he has private access.

[131] Paragraph 30 contains the same theme:

This computer was equipped with hardware and software which supports storing data on electronic media. Documents pertaining to [Mr. Pommer’s business] affairs were located in the same directory as child pornography. The files on that computer were being shared with other computers that Christian Archer POMMER was utilizing at that time. Those other principal use computers are believed to hold evidence from accessing child pornography.

[132] On cross-examination, Cst. Johnson said that he understood that the child pornography images and Mr. Pommer’s business documents were located together in the recycle bin. He acknowledged, however, that his understanding of where the data went when it was deleted or how it was revealed by the software he used was unclear. He also acknowledged that he relied on Cst. Brookes’ information in preparing the ITO. Cst. Brookes stated that the home computer contained documents that originated from Mr. Pommer’s office computer. For example, a spreadsheet containing information from Mr. Pommer’s business was found in a directory of the home computer. In addition, the directory in which Cst. Brookes located the surreptitious thumbnail images, some of which were identified by the wife, was linked to a directory containing Mr. Pommer’s business files. He also found an intermingling of access to child pornography websites and Mr. Pommer’s business website and external accessing of Mr. Pommer’s business e-mails from the home computer.

[133] The import of ¶26 and ¶30 was not that legal and illegal content were contained in the same directory or directories, but that the home computer contained both types of material which supported the inference that both types of material would be found on any computers located at Mr. Pommer’s condominium or office. The evidence also supported Cst. Johnson’s understanding that Mr. Pommer had accessed directories in his business computer from the home computer and therefore it was reasonable to assume that he would access directories in his home computer from his business computer.

[134] The defence challenges the accuracy of ¶34 which states:

An image of the seized computer was obtained. 54 images which are child pornography as defined by s. 163.1(1) of the Criminal Code were located as a result of that search. Also, the computer had been used to access at least 23 child pornography websites. Credit cards utilized to purchase access to child porn sites were also discovered.

[135] This submission also relates to ¶65 of the ITO. The defence submits the amplified evidence does not establish that the 54 images found in the recycle bin were viewed or that 22 websites were accessed on the dates alleged in the ITO. Counsel states the evidence merely established that 54 images were found in the recycle bin and 22 banner ads marketing child pornography websites were found on the computer. However, the 54 images found in the recycle bin were deleted from allocated space. That requires a direct action by the user from which it can be inferred that the user viewed and saved the images. Cst. Brookes also testified that in his opinion direct actions were taken by the user to access some of these websites. That conclusion was supported by the evidence of the charges by the third party billing companies and the enlarged and more blurry images of the same thumbnail images and banner ads. Historical information about the websites was provided in part by the Sitekey investigation and in part by Cst. Brookes’ use of an archiving website. Detective Nelson of the Dallas Police Services had utilized software to capture the Preteen Heaven website on June 19, 2001, which at that time contained 1,902 images and video of almost exclusively nude and semi-nude images of females between the ages of seven and twelve. The offence dates in the ITO also spanned from 2001 to the date of the ITO.

[136] The defence submits that in ¶41 Cst. Johnson failed to state that some of the websites Mr. Pommer is alleged to have accessed contained both legal and illegal content and failed to disclose that the credit card used to purchase access to the Preteen Heaven website on June 6, 2001, was closed on October 1, 2001. However, the amplified evidence established that Cst. Johnson intentionally excluded the website purchases charged to ccbill.com and only included in his spreadsheet those known websites that contained exclusively child pornography as itemized in the merchant names list. He also testified that in his opinion the information as to when the credit card was closed (almost four months after the transaction) was not material. I agree with that opinion.

[137] The defence contends that ¶53 of the ITO was in error when it stated that the August 27, 2004 ICE letter referred to the Preteen Heaven website as containing images that satisfied the definition of child pornography contrary to s. 163.1(1) of the Criminal Code when the letter merely referred to the material as meeting the definition of child pornography in Manitoba. The definition of child pornography is governed by the Criminal Code. That was the context of the ICE Sitekey investigation. The difference in wording between the ICE letter and the claim in the ITO is, in my view, a distinction without a difference.

[138] Defence submits that Cst. Johnson misled the authorizing justice in ¶64 of the ITO by failing to mention that the illegal content was invisible to the ordinary user and could be seen through the use of specialized software that did not exist on the computer. In my view that information was not material to the issue of whether Mr. Pommer was in possession of or had attempted to access the prohibited material on the dates of the alleged offences. The prohibited material was in Mr. Pommer’s possession if he accessed it and then deleted it.

[139] Similarly, the defence submits that Cst. Johnson’s failure to mention that web pages and their content can change by the minute and hour has no merit. Cst. Brookes stated that child pornography websites produce tremendous revenue and have no reason to change their content or the banner ads that lure the interested viewer into buying access to that material. Historical data obtained by an archive website confirmed that some of this material existed at the material time. I am satisfied this omission was not material to the issues to be determined by the authorizing justice.

[140] In ¶70 of the ITO, Cst. Johnson referred to Mr. Pommer being the sole user of the computer. On cross-examination he readily admitted that statement was an error but said it was inadvertent. He referred to other paragraphs within the same ITO that stated Mr. Pommer was the principal user of the computer.

[141] In ¶71 Cst. Johnson stated that the wife had advised him she had knowledge that Mr. Pommer accessed pornographic websites on all computers to which he had access. On cross-examination, he acknowledged that she would not have had such knowledge after Mr. Pommer left the family home. However, Cst. Johnson stated that that was a reasonable inference for the wife to make given her knowledge of Mr. Pommer’s past conduct when they lived together.

[142] This same issue arose in ¶72 of the ITO where Cst. Johnson stated that the wife knew that Mr. Pommer accessed child pornography websites on his laptop when he travelled. On cross-examination, Cst. Johnson admitted that the wife did not have personal knowledge of that statement as she was not with him but that she reached that conclusion from her analysis of Mr. Pommer’s credit card statements which included third party billings such as Staffco, in Russian rubles and through St. Petersburg, Russia.

[143] After carefully reviewing the statements in the July 7, 2005 ITO and the evidence as amplified on review, I am satisfied there is no basis for excising any of the paragraphs. The only clear error was contained in ¶70 where Cst. Johnson said that Mr. Pommer was the sole user of the computer. That error was inadvertent and stated correctly in other paragraphs within the ITO that claimed Mr. Pommer was the principal user of the computer.

(iv) Should the evidence from the July 28, 2004 warrantless search be excluded pursuant to s. 24(2)?

[144] In the event that I am found to be in error on finding that the warrantless search was reasonable in the circumstances, I propose to address whether that evidence should be excluded as a result of having been obtained from a breach of Mr. Pommer’s s. 8 Charter right. Section 24(2) requires that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[145] The process for deciding this issue requires the Court to consider: (1) the effect of admitting the evidence on the fairness of the subsequent trial; (2) the seriousness of the police conduct; and (3) the effects of excluding the evidence on the administration of justice: see R. v. Collins, [1987] 1 S.C.R. 265, and R. v. Law, [2002] 1 S.C.R. 227 at ¶33.

[146] The evidence obtained from the search was non-conscriptive and therefore trial fairness is not in issue. The seriousness of the Charter breach and the effect of excluding the evidence obtained as a result of the breach on the administration of justice are the primary factors to consider.

[147] The seriousness of the breach is an important factor. It requires a consideration of: (i) whether the police conduct “was committed in good faith or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant”; (ii) whether the breach was motivated by a situation of urgency or necessity; and, (iii) whether the evidence could have been obtained by other means, thus rendering the Charter breach gratuitous and blatant. Additional factors to be considered include the obtrusiveness of the search, the individual’s expectation of privacy and the existence of reasonable and probable grounds: see Buhay at ¶52.

[148] R. v. Pech, 2008 BCCA 61, offers some insight into this issue. The circumstances involved an accused who was convicted of having a marijuana grow operation. At trial, Crown conceded that the ITO in support of the tele-warrant was invalid because the police officer had not made any inquiry as to whether a judicial officer was available and had stated in the ITO that none was available. However, there was no evidence the police officer had made this error in bad faith or with any intent to mislead. On appeal the court agreed with the trial judge’s characterization of the police officer’s mistake as a “technical violation” and upheld his decision to admit the evidence pursuant to s. 24(2).

[149] If Mr. Pommer had a reasonable expectation of privacy in the information on the home computer, that informational privacy was at the lower end of the spectrum over the expectations of personal or territorial privacy. This is confirmed by Mr. Pommer’s actions after he vacated the family home. He left the computer at the house. He did not retrieve it even after he returned a second time to pick up some additional personal items. He never asked or indicated to the wife that he wanted or intended to retrieve the home computer. Even the February 14, 2005, separation agreement was vague on his right to the home computer. One can only infer from these actions that at the time Mr. Pommer had little, if any, concern about his right to privacy in the home computer. It is likely he never thought the wife would ask the police to search the computer. This would appear inherent in his comments to the wife after she threatened to call the police when he said that it would be his word against that of the daughter. It clearly did not cross his mind that the wife would take the subsequent actions that she did.

[150] Mr. Pommer’s actions or lack thereof in regard to the computer not surprisingly led the wife to believe that he had abandoned any interest he had in it. Although that understanding was not expressly articulated to her by July 28, 2004, when the warrantless search was conducted, her understanding appears confirmed by Mr. Pommer’s subsequent lack of interest in the computer.

[151] Nor was the manner of the search by Cst. Johnson obtrusive to Mr. Pommer who was not present when it occurred. The fact that the search was not conducted pursuant to a criminal investigation makes the inquiry into whether the evidence could have been obtained by any other means moot. The purpose of the search was not to obtain evidence against Mr. Pommer but to respond to the wife’s concerns.

[152] More importantly, Cst. Johnson conducted the warrantless search on the understanding from the wife that the computer had been abandoned by Mr. Pommer and that she, as its current owner, was consenting to the search. He also understood that the purpose of the search was not to advance a criminal investigation but to assist the wife in regard to her fears that inappropriate material of her and the daughter may have been distributed over the internet without their consent. Cst. Johnson understood the wife’s concerns were serious and that she felt an urgency in having her concerns answered.

[153] In these circumstances, I am satisfied that Cst. Johnson acted in good faith when he volunteered to search the computer to determine if inappropriate images of her and the minor daughter had been sent out over the internet. These facts clearly distinguish this case from the facts in James where the police undertook a warrantless search knowing that they did not have the consent of the computer’s owner.

[154] The third factor of the Collins test requires the Court to consider the effect exclusion of this evidence would have on the administration of justice. In that regard, the Court must consider whether the evidence forms a crucial part of the Crown’s case and the seriousness of the underlying charge: see Buhay at ¶67.

[155] Ryan J.A. addressed this issue in Washington at ¶86 by reference to Arbour J.’s comments in Buhay at ¶73:

The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 534. This was well put by Doherty J.A. in a recent decision of the Court of Appeal for Ontario, R. v. Kitaitchik (2002), 161 O.A.C. 169, at para. 47:

The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial.

[156] In the circumstances of this case, the February 24, 2005 ITO in support of an application for a search warrant of the home computer, the May 17, 2005 ITO in support of three search warrants for Mr. Pommer’s credit card records, and the final July 7, 2005 ITO in support of a search warrant of Mr. Pommer’s condominium and office, all make reference to the images of child pornography found by Cst. Johnson in his warrantless search.

[157] The Crown submits that if these references were excised they would not have a domino effect on the subsequent search warrants which he contends can stand alone without this information. The defence submits the excision of the information would have caused the subsequent applications for the forensic search of the computer and for Mr. Pommer’s credit card records to have been refused.

[158] Two of the three applications for a search warrant of Mr. Pommer’s condominium and office were rejected. While the February 24, 2005 ITO contained additional information about the August 27, 2004 ICE letter, and the May 17, 2005 ITO contained additional information from Cst. Brookes’ preliminary assessment and background information from Dr. Logan, each of these applications were intricately connected to the other. It is not altogether certain, in my view, that the omission of the evidence obtained by Cst. Johnson’s search of the home computer would not have impacted the subsequent applications.

[159] The alleged offence is very serious. In comparison, the s. 8 breach by Cst. Johnson’s warrantless search was more in the nature of a technical violation given his understanding that the wife had authority to consent to the search. The wife’s fears were reasonable. It was also reasonable for her to turn to the police, on the advice of the family lawyer, to alleviate her fears. Cst. Johnson volunteered to help her outside the scope of a criminal investigation on the understanding that she was the de facto owner of the computer and consented to the search. He did not deliberately, intentionally or flagrantly breach Mr. Pommer’s s. 8 Charter right. On balance, I am satisfied that the evidence obtained from the warrantless search should not be excluded from the evidence at trial as to do so would, in my view, bring the administration of justice in disrepute.

[160] In the result, I am satisfied the evidence obtained from each of the searches is admissible as evidence at the trial.

“D. Smith J.”