R. v. U.P.M., (2010) 346 Sask.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 18, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 346 Sask.R. 1 (SCC);2010 SCC 8;86 WCB (2d) 949;[2010] 4 WWR 193;252 CCC (3d) 273;346 Sask R 1;JE 2010-576;207 CRR (2d) 153;AZ-50618415;316 DLR (4th) 1;[2010] ACS no 8;[2010] EXP 1068;EYB 2010-171050;399 NR 200;[2010] SCJ No 8 (QL);[2010] 1 SCR 253;72 CR (6th) 208

R. v. U.P.M. (2010), 346 Sask.R. 1 (SCC);

    477 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] Sask.R. TBEd. MR.089

U.P.M. (appellant) v. Her Majesty The Queen (respondent)

(32741; 2010 SCC 8; 2010 CSC 8)

Indexed As: R. v. U.P.M.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

March 19, 2010.

Summary:

On September 5, 2002, a computer technician (Hounjet) went to the accused's residence to install a high speed internet connection. Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites). He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor. Unable to finish his work that day, Hounjet returned the next day. The 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 had been "formatted", i.e., it was erased and the icons were gone. Information regarding Hounjet's observations was eventually conveyed to the RCMP, who obtained a search warrant on January 10, 2003. The search was carried out the same day. Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks. The accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The accused challenged the validity of the search warrant under s. 8 of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at 272 Sask.R. 282, dismissed the challenge to the search warrant and convicted the accused. The accused appealed.

The Saskatchewan Court of Appeal, Richards, J.A., dissenting, in a decision reported at 310 Sask.R. 165; 423 W.A.C. 165, confirmed that the search warrant was valid and dismissed the appeal. The accused appealed.

The Supreme Court of Canada, Deschamps, Charron and Rothstein, JJ., dissenting, allowed the appeal. The court held that the search warrant should not have issued and that the subsequent search violated s. 8 of the Charter. The court excluded the illegally obtained evidence under s. 24(2) of the Charter. Since the accused could not have been convicted in the absence of the evidence, the court quashed the conviction and entered an acquittal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A search pursuant to a search warrant was carried out at the accused's residence - Pornographic pictures involving children were found on a computer, computer disks and/or floppy disks - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the search warrant and the search breached the accused's s. 8 Charter rights - In considering whether the evidence should be excluded under s. 24(2), and in particular, the impact of the breach on the Charter-protected interests of the accused, the court stated that "The intrusiveness of the search is of particular importance in this regard. Our concern here is with the search of the appellant's home, in itself a serious breach of the appellant's rights under s. 8 of the Charter. But there is more. The infringement in this case involved a search of the appellant's personal computer - and his wife's laptop computer as well ... it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet" - See paragraphs 104 to 105.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - On September 5, 2002, a computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been formatted, i.e., it was erased and the icons were gone - Hounjet's observations were eventually conveyed to the RCMP who obtained a search warrant on January 10, 2003 - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The accused was convicted of possession of child pornography - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the search warrant and the search violated s. 8 of the Charter - The court held that Information to Obtain (ITO) the warrant "was carelessly drafted, materially misleading, and factually incomplete. The ITO invoked an unsupported stereotype of an ill-defined 'type of offender' and imputed that stereotype to the appellant. In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time. 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. 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" - Merely viewing in a web browser an image stored in a remote location on the Internet did not establish the level of control necessary to find possession - The court noted that the ITO alleged that the accused was in possession of child pornography - It did not allege the distinct and separate offence of accessing child pornography - See paragraphs 4 to 10 and 44 to 97.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The RCMP obtained a search warrant for the accused's residence - Pornographic pictures involving children were found on a computer, computer disks and/or floppy disks - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the warrant and the search violated s. 8 of the Charter - The court applied the test in R. v. Grant (2009 SCC) and concluded that the evidence obtained as a result of the illegal search should be excluded under s. 24(2) of the Charter - The officer who prepared the Information to Obtain (ITO) the warrant was neither reasonably diligent nor mindful of his duty to make full and frank disclosure - The ITO was carelessly drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds - The repute of the administration of justice would be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as a search of a home and the seizure and scrutiny of a personal computer - Admitting the illegally obtained evidence would bring the administration of justice into disrepute - See paragraphs 98 to 113.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - [See first, second and third Criminal Law - Topic 575.1 ].

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - The Supreme Court of Canada discussed when one could be said to "possess" an image in a computer within the meaning of s. 163.1 of the Criminal Code (possession of child pornography) - The court held that merely viewing in a web browser an image stored in a remote location on the Internet did not establish the level of control necessary to find possession - Possession of illegal images required possession of the underlying data files in some way - The court stated that Canadian cases appeared implicitly to accept the proposition that possession of an image in a computer meant possession of the underlying data file, not its mere visual depiction, and this was a sensible interpretation for a number of reasons - First, Parliament, in s. 163.1(4.1) of the Code, had made accessing child pornography a separate crime, different from possession - Further, interpreting possession to apply only to the underlying data file was more faithful to a traditional understanding of what it meant to "possess" something - The traditional objects of criminal possession were things that could, potentially at least, be transferred to another person - It was the underlying data file that was the stable "object" that could be transferred, stored, and possessed - The court stated that "More broadly, the object possessed must itself have some sort of permanence" - See paragraphs 13 to 29.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - The Supreme Court of Canada discussed when one could be said to "possess" an image in a computer within the meaning of s. 163.1 of the Criminal Code (possession of child pornography) - The court held that merely viewing in a web browser an image stored in a remote location on the Internet did not establish the level of control necessary to find possession - Possession of illegal images required possession of the underlying data files in some way - The court stated that "the mere fact that an image has been accessed by or displayed in a web browser does not, without more, constitute possession of that image. An [Information to Obtain] seeking a warrant to search for evidence of possession (rather than accessing) must therefore provide reasonable and probable 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. It is not enough to provide reasonable and probable grounds to believe that the alleged offender viewed or accessed illegal images using a computer, without knowingly taking possession - which includes control - of the underlying files in some way" - The court further stated that "I take care not to be understood to have circumscribed or defined constructive possession of virtual objects. I leave open the possibility, for example, that one could constructively possess a digital file without downloading it to his or her hard drive, using for example a Web-based e-mail account to store illegal material" - See paragraphs 31 to 32.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - The Supreme Court of Canada discussed when one could be said to "possess" an image in a computer within the meaning of s. 163.1 of the Criminal Code (possession of child pornography) - The court held that merely viewing in a web browser an image stored in a remote location on the Internet did not establish the level of control necessary to find possession - Possession of illegal images required possession of the underlying data files in some way - The court considered how that understanding of possession applied to files in an Internet cache (i.e., copies of files automatically stored on the hard drive by a web browser) - The court stated that "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 is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache" - See paragraph 36.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - On September 5, 2002, a computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been "formatted", i.e., it was erased and the icons were gone - Hounjet's observations were eventually conveyed to the RCMP who obtained a search warrant on January 10, 2003 - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the search warrant - Merely browsing a website or viewing images onscreen did not constitute possession - Neither did creating a bookmark on one's computer establish possession over the content of the website - The presence of the icons might arouse suspicions regarding possession, but it did not alone support a reasonable inference that the accused not only accessed the website and knowingly viewed illegal images located there, but also took the underlying data file into his control by saving it to the hard drive, or otherwise - Further, even if one took the broader view that possession was complete on merely viewing images on-screen, other facts in the Information to Obtain (ITO) the warrant precluded the possibility of inferring from the icons alone that evidence of the crime would be found in the accused's computer - Specifically, the ITO stated that on the day after the icons were viewed, the computer's hard drive was formatted - Not only would the suspicious links have been erased, but illegal image files in the computer and any files evidencing past access to websites containing illegal images would also have been removed - See paragraphs 64 to 68.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - On September 5, 2002, a computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been "formatted", i.e., it was erased and the icons were gone - Hounjet's observations were eventually conveyed to the RCMP who obtained a search warrant on January 10, 2003 - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the search warrant - The court stated that "To conclude that evidence of possession would be found four months after the hard drive was erased, one must therefore 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. Both possibilities require drawing inferences based on the likely behaviour of the accused. The ITO seeks to establish the necessary inference on the basis of unsupported generalizations about the propensities of certain 'types of offenders' to hoard and copy illegal images. The ITO suggests that the accused is a person of that 'type' and that, as a result, copies of the images would remain on the computer. In my view, the ITO does not establish either the veracity of the generalization about the alleged 'type of offender', nor that the accused is in fact the 'type' to which the generalization might have applied" - The generalizations about certain "types of offenders" were entirely devoid of meaningful factual support - The ITO contained no evidentiary material in this regard apart from the bald assertion of two police officers - There was virtually nothing to establish the expertise of those officers - See paragraphs 69 to 73.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - On September 5, 2002, a computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been "formatted", i.e., it was erased and the icons were gone - Hounjet's observations were eventually conveyed to the RCMP who obtained a search warrant on January 10, 2003 - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The Supreme Court of Canada held that there were no reasonable and probable grounds for the issuance of the search warrant - The court stated that "Essentially, only two inferential paths could have led the justice to conclude that the warrant should issue: (1) the two suspicious bookmarks; (2) the claims about the propensity of certain 'types of offenders' to hoard images, combined with reason to believe that the accused is of that 'type'. In my view, both paths lead instead to an evidentiary dead end: they culminate in suspicion and conjecture, never reaching the mandatory threshold of reasonable and probable grounds to believe" - See paragraph 63.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - A computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been "formatted", i.e., it was erased and the icons were gone - Hounjet's observations were subsequently conveyed to the RCMP who obtained a search warrant - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The Supreme Court of Canada, in considering whether the warrant was validly issued, held that it was necessary to excise several misleading passages in the Information to Obtain (ITO) which suggested that Hounjet had actually viewed illegal pornography on the computer - The ITO stated that "[o]nce on the computer Hounjet observed 'Lolita Porn' on the screen", and that Hounjet "returned the next day to find the porn removed" - However, all Hounjet saw were two links - The ITO also stated that when Hounjet arrived the next day "all the child porn off the computer was gone" - The natural reading of the ITO was that pornographic images of children were actually seen on the computer - That was a false claim and those statements had to be excised from the ITO - See paragraphs 45 to 48.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - A computer technician (Hounjet) went to the accused's residence to install a high speed internet connection - Hounjet saw links in the "favourites" list of the accused's computer to "Lolita Porn" and "Lolita XXX" (child pornography sites) - He also noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and pointed at the accused's three year old daughter who was playing with toys on the floor - Unable to finish that day, Hounjet returned the next day - The 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 had been "formatted", i.e., it was erased and the icons were gone - Hounjet's observations were subsequently conveyed to the RCMP who obtained a search warrant - Pornographic pictures involving children were found on the computer, computer disks and/or floppy disks - The Supreme Court of Canada held that the Information to Obtain (ITO) the warrant 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 - For example, the two bookmarks "Lolita Porn" and "Lolita XXX" were scattered among additional links pointing to regular adult material - Moreover, the only pornographic image that Hounjet actually saw on the accused's computer was legal adult pornography - The failure to mention those facts created a misleading impression that the accused was particularly inclined towards child pornography or exclusively seeking it out - The ITO also invited the justice of the peace to make an unwarranted connection between the "Lolita" bookmarks and the webcam trained at the children's play area - The informant's narrative would have appeared much less sinister had the ITO included a number of additional facts known to the police - See paragraphs 49 to 60.

Words and Phrases

Possess - The Supreme Court of Canada discussed when one could be said to "possess" an image in a computer within the meaning of s. 163.1 of the Criminal Code, R.S.C. 1985, c. C-46, i.e. in the context of possession of child pornography - See paragraphs 13 to 37.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 11].

Beaver v. R., [1957] S.C.R. 531, refd to. [paras. 16, 137].

R. v. Panko (A.), [2007] O.T.C. Uned. K86; 52 C.R.(6th) 378 (Sup. Ct.), refd to. [para. 21].

R. v. Weir (D.T.) (2001), 281 A.R. 333; 248 W.A.C. 333; 95 Alta. L.R.(3d) 225; 2001 ABCA 181, refd to. [paras. 22, 142].

R. v. Daniels (P.) (2004), 242 Nfld. & P.E.I.R. 290; 719 A.P.R. 290; 191 C.C.C.(3d) 393; 2004 NLCA 73, refd to. [paras. 23, 142].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [paras. 39, 128].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [paras. 40, 130].

R. v. Fawthrop (L.) (2002), 161 O.A.C. 350 (C.A.), refd to. [paras. 82, 162].

United States v. Weber (1990), 923 F.2d 1338 (9th Cir.), refd to. [para. 85].

United States v. Terry (2008), 522 F.3d 645 (6th Cir.), refd to. [paras. 87, 173].

R. v. Graham (E.A.) (2008), 277 Nfld. & P.E.I.R. 103; 850 A.P.R. 103; 2008 PESCAD 7, refd to. [para. 87].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 127].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510, refd to. [para. 127].

Illinois v. Gates (1983), 462 U.S. 213, refd to. [para. 129].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 130].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 130].

Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291; 2002 SCC 72, refd to. [para. 131].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 132].

R. v. Pires - see R. v. Lising (R.) et al.

R. v. York (J.A.) (2005), 208 B.C.A.C. 184; 344 W.A.C. 184; 193 C.C.C.(3d) 331; 2005 BCCA 74, refd to. [para. 136].

R. v. Chalk (R.) (2007), 231 O.A.C. 107; 88 O.R.(3d) 448; 2007 ONCA 815, refd to. [para. 137].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8, refd to. [para. 137].

R. v. Hess (No. 1) (1948), 94 C.C.C. 48 (B.C.C.A.), refd to. [para. 137].

R. v. Neveu (G.L.C.) (2005), 239 N.S.R.(2d) 59; 760 A.P.R. 59; 2005 NSPC 51, refd to. [para. 162].

United States v. Gourde (2006), 440 F.3d 1065 (9th Cir.), refd to. [para. 162].

United States v. Martin (2006), 426 F.3d 68 (2nd Cir.), refd to. [para. 162].

United States v. Shields (2006), 458 F.3d 269 (3rd Cir.), refd to. [para. 162].

Davidson v. United States (2006), 213 Fed.Appx. 769 (11th Cir.), refd to. [para. 162].

United States v. Falso (2008), 544 F.3d 110 (2nd Cir.), refd to. [para. 162].

United States v. Perrine (2008), 518 F.3d 1196 (10th Cir.), refd to. [para. 162].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 162].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 162].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 162].

R. v. Graham (E.A.), 2007 CarswellPEI 80 (Prov. Ct.), affd. (2008), 277 Nfld. & P.E.I.R. 103; 850 A.P.R. 103; 2008 PESCAD 7, refd to. [para. 173].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 178].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 10]; sect. 24(2) [para. 11].

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(3) [para. 15]; sect. 163.1 [para. 13].

Authors and Works Noticed:

Akdeniz, Yaman, Internet Child Pornography and the Law: National and International Responses (2008), pp. 1 to 8 [para. 114]; 32 to 58, 150 to 152 [para. 141].

Canada, Hansard, House of Commons Debates, vol. 137, 1st Sess., 37th Parliament (May 3, 2001), p. 3581 [para. 26].

Hansard - see Canada, Hansard, House of Commons Debates.

Howard, Ty E., Don't Cache Out your Case: Prosecuting Child Pornography Possession Law Based on Images Located in Temporary Internet Files (2004), 19 Berkeley Tech. L.J. 1227, generally [para. 141].

Luehr, Paul H., Real Evidence, Virtual Crimes: The Role of Computer Forensic Experts, (2005-2006), 20 Crim. Just. 14, generally [para. 141].

Marin, Giannina, Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You? (2008), 60 Fla. L. Rev. 1205, p. 1212 [para. 141].

Michaels, Rebecca, Criminal Law - The Insufficiency of Possession in Prohibition of Child Pornography Statutes: Why Viewing a Crime Scene Should Be Criminal (2008), 30 W. New Eng. L. Rev. 817, generally [para. 141].

Taylor, Max, and Quayle, Ethel, Child Pornography: An Internet Crime (2003), c. 7 [para. 162].

Counsel:

Aaron A. Fox, Q.C. and Jeffrey Beedell, for the appellant;

Anthony B. Gerein, for the respondent.

Solicitors of Record:

McDougall Gauley, Regina, Saskatchewan, for the appellant;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the respondent.

This appeal was heard on February 18, 2009, before McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on March 19, 2010, including the following opinions:

Fish, J. (McLachlin, C.J.C., Binnie and Abella, JJ., concurring) - see paragraphs 1 to 113;

Deschamps, J. (Charron and Rothstein, JJ., concurring), dissenting - see paragraphs 114 to 183.