Exclusion of evidence of child pornography

R. v. Morelli, 2010 SCC 8 is a complex and difficult decision -- it is a strong decision in favor of protecting privacy rights against unreasonable search. A summary follows:

On September 5, 2002, a computer technician arrived unannounced at the accused's house to install a high-speed Internet connection the accused had ordered. The accused lived with his wife and two children, aged three and seven, but was alone that day with his younger daughter. When the technician opened the accused's Web browser, he noticed several links to both adult and child pornography sites in the taskbar's "favourites" list, including two that were labelled "Lolita Porn" and "Lolita XXX". He also saw a legal pornographic image, but he could not remember afterwards if it was on the browser's home page or on the computer desktop. In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and was pointed at the toys and at the child. Unable to finish his work on that day, the technician returned the following morning and noted that everything had been "cleaned up": the child's toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user's chair and the computer hard drive had been "formatted". In November, concerned with the child's safety, the technician reported what he had seen to a social worker, who contacted the RCMP. The technician made a statement to Cst. O in January 8, 2003. After the interview, O consulted Cpl. B from the RCMP's Technological Crime Unit, who he knew had experience investigating crimes involving computers and technological devices. B stated that these types of offenders were habitual and would continue their computer practices with child pornography and that this information would remain inside the hard drive of the computer. O also spoke to Cst. H who, he had been told by a Crown attorney, had experience investigating child exploitation offences. H informed O that these offenders treasured collections on their computers and liked to store them and create backups. O also verified whether an active Internet connection was still being provided to the accused's residence. He then drafted an information to obtain a search warrant ("ITO") and, on January 10, a warrant was issued pursuant to s. 487 of the Criminal Code to search the accused's computer. Pornographic pictures involving children were found on the computer and the accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. At trial, he unsuccessfully challenged the validity of the search warrant under s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge convicted the accused and the majority of the Court of Appeal upheld the conviction.

Held: The appeal should be allowed. The accused's conviction is quashed and an acquittal is entered.

Per McLachlin C.J. and Binnie, Abella and Fish JJ.: The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1). Merely viewing in a web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a "favourite" or an "icon" on one's computer. In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under one's control. It is the underlying data file that is the stable "object" that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession it must be shown that the file was knowingly stored and retained through the cache. An ITO seeking a warrant to search for evidence of possession, rather than accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched at the time the warrant is sought. Here, the search and seizure of the accused's computer infringed his right under s. 8 of the Charter. Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search. The ITO did not allege the distinct and separate offence of accessing child pornography and, stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the "Favourites" menu of a web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two "Lolita" links supports a reasonable inference that the accused browsed a website that contained explicit images of females under the age of 18, but this does not suffice to establish possession.

The misleading passages in the ITO that suggested that the technician had actually viewed illegal pornography on the computer, rather than suspiciously labelled "favourites", must be excised. That pornographic images of children were actually seen on the computer is an entirely false claim. Aside from false statements, the ITO in several places gave an incomplete and misleading account of the facts, in contravention of the informant's duty to make full and frank disclosure of all material information. The ITO does not mention, as the voir dire revealed, that the two "favorites" were "just scattered through the favourites" among additional links pointing to "regular adult material". The failure to mention these facts creates a misleading impression. Once it is understood that the suspicious "Favourites" were in fact exceptions, found together with much more material that was undisputedly legal, the inference that the accused possessed illegal images becomes significantly less compelling. Furthermore, the descriptions of the webcam and its placement are juxtaposed immediately alongside the descriptions of the suspicious "Favourites" and the technician's claims that he had "observed 'Lolita Porn'", clearly suggesting that the accused might have been making (and possessing) his own illegal pornography. The ITO, however, did not include a number of additional facts known to the police. First, the three-year- old child mentioned, but not identified, in the ITO was in fact the accused's daughter. Second, the ITO stated that the accused was alone in the house with the girl, but failed to mention that his wife lived with them. Third, the ITO also failed to mention that the child was fully clothed, that there was no evidence of abuse, that the computer room had a child gate and appeared to double as a playroom for the child, and that the child was playing with the scattered toys in the middle of the room when the technician arrived. While the reviewing judge found no deliberate attempt to mislead, it is nonetheless evident that the police officer's selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time. It seems much more plausible that the accused was simply using the VCR and webcam to videotape his young daughter at play for posterity's sake, rather than for any purpose connected to child pornography.

To conclude that evidence of possession would be found four months after the hard drive was erased, one must accept either that the accused had made external copies of illegal images present in the computer before formatting its hard drive or that he acquired additional illegal images after the formatting. While the ITO seeks to establish inferences based on the likely behaviour of the accused on the basis of generalizations made by B and H about the propensities of certain "types of offenders" to hoard and copy illegal images, the ITO does not establish either the veracity of the generalization about the alleged "type of offender", or that the accused is in fact the "type" to which the generalization might have applied. The ITO contains no evidentiary material in this regard apart from the bald assertion of the two police officers and there is virtually nothing to describe, let alone establish, the expertise of the officers. Moreover, the class of persons to whom specific proclivities are attributed is defined so loosely as to bear no real significance. There is no reason to believe, on the basis of the information in the ITO as amplified, that all child pornography offenders engage in hoarding, storing, sorting, and categorizing activity. To permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence. It is not the role of courts to establish by judicial fiat broad generalizations regarding the "proclivities" of certain "types" of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard - in this case, reasonable grounds for belief. Here, two suspiciously labelled links in the "Favourites" do not suffice to characterize a person as an habitual child pornography offender of the type that seeks out and hoards illegal images. The fact that the bulk of the pornographic material that the technician observed at the accused's house was legal adult pornography suggests that the accused did not have a "pronounced" interest in child pornography.

The presence of the webcam, which was functioning as a camcorder recording to a VCR, has only a tenuous relation to the crime alleged. While it may be true that the accused was adept at recording videotapes and storing the tapes for future use - as is nearly everyone who owns a camcorder - this says nothing about his propensity to store a different kind of image (child pornography), in a different medium (a computer, as opposed to videotape), acquired in a different manner (downloading, as opposed to filming). To draw an inference that he is of the type to hoard illegal images is to speculate impermissibly. Nor does the accused's conduct after the technician's visit support the conclusion that he was the sort of person to seek out and hoard child pornography. The accused might well have tidied up the room and formatted his computer simply to avoid further embarrassment from having an outsider see the disorderly state of his home and the evidence of his consumption of pornography on his computer. The accused's conduct might raise suspicions but, as a matter of law, mere suspicion is no substitute for reasonable grounds.

The evidence obtained as a result of the illegal search should be excluded under s. 24(2) of the Charter. When the three relevant factors are balanced, admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute. The trial judge found no deliberate attempt to mislead and no deliberate misconduct on the part of the officer who swore the ITO, but the repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if criminal trials were permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete ITOs upon which a search warrant was issued. The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.