R. v. Ballendine (K.D.), (2011) 304 B.C.A.C. 20 (CA)

• Judge: Low, Frankel and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Thursday March 24, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 304 B.C.A.C. 20 (CA);2011 BCCA 221

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20 (CA);

    513 W.A.C. 20

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.022

Regina (respondent) v. Kenneth Dale Ballendine (appellant)

(CA038203; 2011 BCCA 221)

Indexed As: R. v. Ballendine (K.D.)

British Columbia Court of Appeal

Low, Frankel and Neilson, JJ.A.

March 24, 2011.

Summary:

The accused was found guilty of accessing and possessing child pornography. The accused appealed his convictions, raising objections to a search warrant that was executed at his residence.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - [See Civil Rights - Topic 8591 ].

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - A search warrant was executed at the accused's residence - The accused was convicted of accessing and possessing child pornography - The accused appealed - The accused submitted that the Royal Canadian Mounted Police National Child Exploitation Coordination Centre's (NCECC) use of the Personal Information and Protection of Electronic Documents Act (PIPEDA) to obtain his customer-account information from his internet service provider (Uniserve) was unlawful and amounted to an unreasonable search and seizure - The British Columbia Court of Appeal stated that "In this case, all that is known about Uniserve is that it provided internet services to [the accused]. The record is silent with respect to their contractual relationship, if any. It is also silent with respect to the facts necessary to decide whether Uniserve is an entity to which the PIPEDA applies" - The deficiencies in the record were such that it was not possible to resolve the factual and legal issues raised by the accused in his favour - Since he bore the onus of establishing that the PIPEDA applied to the NCECC's requests and that Uniserve's responses to those requests resulted in a breach of his Charter rights, his objection failed - See paragraphs 71 to 82.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The accused was convicted of accessing and possessing child pornography - The accused appealed, raising objections to a search warrant that was executed at his residence - The accused contended that, to the extent that the warrant gave the police authority to search his residence and seize any computers, etc., it did not authorize them to conduct a forensic examination of those devices - He submitted that a second warrant was required before the police could examine them - The British Columbia Court of Appeal disagreed - The police were authorized, on the basis of the warrant, to remove the computer and related equipment from the accused's residence and to examine them for the purpose of locating any electronically-stored data covered by the warrant - See paragraphs 64 to 70.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The police received information that the accused had allegedly ordered child pornography videos (DVD's) from Marzola by email - The police executed a search warrant at the accused's residence - A forensic examination of the hard-drive removed from his computer disclosed a large number of child-pornography videos - The examination of another hard-drive showed visits to child-pornography websites - The accused was convicted of accessing and possessing child pornography - The accused appealed, raising objections to the search warrant - The accused submitted that the scope of the authorization was overly broad in that it represented a blanket request for everything computer related when this was not a computer-related offence, but rather was a DVD-related offence as alleged in the Information to Obtain - At the appeal hearing, the accused accepted that if there were grounds to search his residence for the Marzola videos, then there were also grounds to search his computers for emails relating to the purchase of those videos - He said that such a warrant should have limited the type of forensic examination that could be performed on any computers - The British Columbia Court of Appeal stated that at the time the warrant was sought there were reasonable grounds to believe that the accused had used a computer at his residence to order child-pornography videos - Accordingly, there was a basis to search for electronically-stored data that could afford evidence of those transactions - That would include not only the emails, but any records relating to payment for the videos - It was also open to the justice of the peace to conclude there were reasonable grounds to believe that someone who appeared to be a collector of child-pornography videos would likely have copied all or some of those videos onto his computer - In addition, as the warrant properly authorized a search for "evidence of residency", the police were entitled to search for such evidence in electronic form - See paragraphs 58 to 63.

Criminal Law - Topic 3057

Special powers - Search warrants - Telewarrants - The accused was convicted of accessing and possessing child pornography - The accused appealed, raising objections to a search warrant that was executed at his residence - Detective Knoop of the Victoria Police Department had submitted the Information to Obtain (ITO) to a judicial justice of the peace by fax, pursuant to s. 487.1 of the Criminal Code (the telewarrant provision) - The British Columbia Court of Appeal held that Detective Knoop acted properly in resorting to the telewarrant procedure - The court stated that "Before submitting his application to the Justice Centre, Detective Knoop ascertained that there was no judicial officer at the Victoria courthouse who could deal with it on an in-person basis. That he did not make a similar inquiry at either the Colwood or Duncan courthouses does not, of itself, render his resort to the telewarrant process improper. Of those two locations, only Colwood could be considered a possible practical alternative. However, as the trial judge noted, there was no evidence that the application could have been dealt with on an in-person basis there. It is important to keep in mind that the ITO Detective Knoop submitted by fax to the Justice Centre contained a statement that, on its face, satisfied the requirements of s. 487.1(1). That being so, the onus was on [the accused] to establish that an in-person attendance, either in Victoria or elsewhere, was not impracticable. This he failed to do" - See paragraphs 34 to 38.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The police received information that the accused had allegedly ordered child pornography videos by email - The police executed a search warrant at the accused's residence - The accused was convicted of accessing and possessing child pornography - The accused appealed - The accused argued that there was nothing in the Information to Obtain the search warrant capable of supporting reasonable grounds to believe that child pornography would likely be found at his residence, i.e., by September 2007 the information with respect to having ordered child-pornography videos in 2005 had become so stale as to be undeserving of any consideration - The British Columbia Court of Appeal rejected the argument - The court stated that "the trial judge was correct when he concluded that, as a matter of common sense, it is reasonable to infer that someone who spends approximately $1,000 to acquire more than two dozen child-pornography videos over the internet is likely be a collector of such prohibited material and is likely to retain them for a considerable time" - See paragraphs 49 to 57.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See first Criminal Law - Topic 3097 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The police received information that the accused had allegedly ordered child pornography videos from Marzola by email - The police executed a search warrant at the accused's residence - The accused was convicted of accessing and possessing child pornography - The accused appealed - The accused asserted that the Information to Obtain submitted by Detective Knoop did not support reasonable grounds to believe that the Marzola videos contained child pornography because Detective Knoop's description of the contents of those videos amounted to no more than a conclusory statement - The accused argued that for Detective Knoop to make full, fair, and frank disclosure he was required to provide the justice of the peace with the actual contents of those videos, i.e., copies of, or clips from, the videos, or snapshots taken from them - The British Columbia Court of Appeal rejected the accused's argument that Detective Knoop's description of what he saw on the videos was a mere conclusory statement, incapable of supporting a finding by the justice of the peace that the Marzola videos contained child pornography - To the contrary, the officer described the contents of those videos in considerable detail - There was no merit in the accused's argument that more than an accurate written description of the contents of a video or photograph had to be provided in support of an application for a search warrant - See paragraphs 39 to 45.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The accused was convicted of accessing and possessing child pornography - The accused appealed, raising objections to a search warrant that was executed at his residence - The accused submitted that the Information to Obtain (ITO) contained unnecessary and prejudicial information about him, namely the reason for his encounter with a police officer in June 2007 (the accused had been questioned by the officer concerning a young girl who believed she was being followed) - The accused submitted that the inclusion of this information presented a distorted view of him as being someone likely to be involved with child pornography - The British Columbia Court of Appeal held that while the reason for the June 2007 encounter should not have been included, there was no suggestion that those details were included to prejudice the accused or to subvert the warrant process - Assuming that this information should not have been included, the court failed to see how it advanced the accused's position in challenging the search warrant given that, as the trial judge correctly found, the ITO was otherwise sufficient to support the issuance of the warrant - See paragraphs 46 to 48.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See first Criminal Law - Topic 3097 ].

Trade Regulation - Topic 9404

Protection of personal information and electronic documents - General - Application and interpretation of legislation (e.g. Personal Information Protection & Electronic Documents Act) - [See Civil Rights - Topic 8591 ].

Cases Noticed:

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 252 C.C.C.(3d) 273; 2010 SCC 8, refd to. [para. 4].

R. v. MacDuff (J.W.) (2011), 298 B.C.A.C. 152; 505 W.A.C. 152; 2011 BCCA 2, refd to. [para. 34].

R. v. Nguyen (Q.H.) et al. (2009), 267 B.C.A.C. 91; 450 W.A.C. 91; 243 C.C.C.(3d) 392; 2009 BCCA 89, refd to. [para. 38].

R. v. James (G.), [2005] O.T.C. 847; 200 C.C.C.(3d) 549 (Sup. Ct.), dist. [para. 43].

R. v. Vivar (J.A.), [2009] O.A.C. Uned. 279; 2009 ONCA 433, refd to. [para. 48].

R. v. Whitaker (D.P.) (2008), 254 B.C.A.C. 234; 426 W.A.C. 234; 2008 BCCA 174, leave to appeal refused [2008] 3 S.C.R. x; 391 N.R. 394; 279 B.C.A.C. 320; 473 W.A.C. 320, refd to. [para. 53].

Andersen v. State (1975), 331 A.2d 78 (Md. Ct. Spec. App.), affd. (1976), 427 U.S. 463, refd to. [para. 54].

R. v. Wonitowy (J.S.) (2010), 358 Sask.R. 303; 2010 SKQB 346, refd to. [para. 54].

United States of America v. Burkhart (2010), 602 F.3d 1202 (10th Cir.), refd to. [para. 56].

R. v. Wu (W.Y.) (2010), 298 B.C.A.C. 84; 505 W.A.C. 84; 2010 BCCA 589, refd to. [para. 62].

R. v. Wight (T.J.), [2008] B.C.A.C. Uned. 44; 2008 BCCA 189, refd to. [para. 62].

R. v. Emes (R.), [1999] O.T.C. Uned. 288 (Gen. Div.), affd. (2001), 147 O.A.C. 129; 157 C.C.C.(3d) 124 (C.A.), refd to. [para. 62].

R. v. Vu (T.L.), [2010] B.C.T.C. Uned. 1260; 218 C.R.R.(2d) 98; 2010 BCSC 1260, dist. [para. 66].

R. v. Weir (D.T.) (2001), 281 A.R. 333; 248 W.A.C. 333; 156 C.C.C.(3d) 188; 2001 ABCA 181, refd to. [para. 70].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 73].

R. v. Lauriente (R.M.) et al. (2010), 283 B.C.A.C. 215; 480 W.A.C. 215; 251 C.C.C.(3d) 492; 2010 BCCA 72, refd to. [para. 73].

R. v. Chehil (M.S.) (2009), 284 N.S.R.(2d) 130; 901 A.P.R. 130; 248 C.C.C.(3d) 370; 2009 NSCA 111, refd to. [para. 74].

S.C., Re, 2006 ONCJ 343, refd to. [para. 75].

R. v. Cuttell (2009), 247 C.C.C.(3d) 424; 2009 ONCJ 471, refd to. [para. 75].

R. v. McNeice (K.G.), [2010] B.C.T.C. Uned. 1544; 2010 BCSC 1544, refd to. [para. 76].

R. v. Vasic (C.), [2009] O.T.C. Uned. 416; 185 C.R.R.(2d) 286 (Sup. Ct.), refd to. [para. 76].

R. v. Brousseau (P.), [2010] O.T.C. Uned. 6753; 2010 ONSC 6753, refd to. [para. 76].

R. v. Gomboc (D.J.), [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 78].

R. v. Jir (D.P.) (2010), 295 B.C.A.C. 231; 501 W.A.C. 231; 264 C.C.C.(3d) 64; 2010 BCCA 497, refd to. [para. 84].

Counsel:

D.J. McKay, for the appellant;

M.J. DeWitt-Van Oosten, Q.C., for the respondent.

This appeal was heard on March 24, 2011, at Vancouver, B.C., before Low, Frankel and Neilson, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on March 24, 2011, and the following written reasons were delivered by Frankel, J.A., on May 5, 2011.