R. v. Varty (D.), 2015 SKQB 51

Judge:Schwann, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 19, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 51;(2015), 479 Sask.R. 1 (QB)
 
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R. v. Varty (D.) (2015), 479 Sask.R. 1 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. AU.021

Her Majesty the Queen v. Doug Varty (accused)

(2013 Q.B. NJ No. 54; 2015 SKQB 51)

Indexed As: R. v. Varty (D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Schwann, J.

February 19, 2015.

Summary:

The accused was charged with possession of child pornography (Criminal Code, s. 163.1(4)), accessing child pornography (s. 163.1(4.1)), and making available child pornography (s. 163.1(3)). He applied for the exclusion of evidence pursuant to s. 8 of the Charter, arguing that his s. 8 Charter rights were violated because (1) the information to obtain the search warrant was not sufficiently current or location-specific to warrant authorization of the search warrant; (2) the police were required to obtain a second warrant to forensically examine any computer seized pursuant to the first warrant; and (3) the police obtained his internet subscriber information by sending a law enforcement request (LER) to his internet service provider (ISP).

The Saskatchewan Court of Queen's Bench held that the accused s. 8 Charter rights were violated because the LER did not authorize the disclosure of information from the ISP. However, the court declined to exclude the evidence.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - [See Civil Rights - Topic 1609 ].

Civil Rights - Topic 1555

Property - Land - Search of private land or buildings - Police discovered that child pornography files were being accessed from a particular IP address - Police learned that the address associated with that IP address was NE 23-31-15-W3 in Rosewater - They obtained a warrant to search the property - Varty's residence and several other outbuildings were located on the property - Police searched the residence - Varty was charged with child pornography offences - He argued that the legal land description was not sufficiently specific to the lands the police intended to search, resulting in a breach of his s. 8 Charter rights - The Saskatchewan Court of Queen's Bench disagreed - The warrant authorized a search by quarter section land description - While it would have been helpful to have identified the premises sought to be searched in a more descriptive manner, particularly where the police knew that a third party might have been residing in an outbuilding, they nonetheless took all reasonable steps to ascertain and identify the premises - They contacted four entities, each of which produced the same generalized address - There was no evidence that they were confused about which building to search or that the rights of a third party were impacted - See paragraphs 29 to 38.

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - Police believed that Varty was involved in child pornography offences - They obtained a warrant to search his residence and seized two computers - Varty argued that his s. 8 Charter rights were violated because the police failed to obtain a second warrant to forensically examine the computers - The Saskatchewan Court of Queen's Bench rejected this argument - The information to obtain (ITO) the warrant (1) stated that the offences under investigation were computer-based offences; (2) listed the things that would afford evidence of the offence, including computers, hard drives, flash drives, and any information or data stored therein; and (3) described how computers and other storage devices could be forensically examined to reveal electronic files which might contain evidence of an electronic crime - The only logical inference to draw from the ITO was that the police were seeking authorization to conduct a forensic examination - A second warrant was not required - See paragraphs 51 to 62.

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information (incl. information protected by privacy legislation) - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1555 , Civil Rights - Topic 1609 and first Criminal Law - Topic 3183 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Varty was charged with child pornography offences following a search of the computers at his home - Police obtained the search warrant by obtaining Varty's name and address from his internet service provider (ISP) pursuant to a law enforcement request (LER) - The Crown conceded that the actions of the police in submitting an LER constituted a breach of Varty's s. 8 Charter rights - Varty applied for the exclusion of evidence pursuant to s. 24(2) - The Saskatchewan Court of Queen's Bench dismissed the application - The violation was not serious - The decision in R. v. Spencer (M.D.) (2014 SCC), which held that judicial authorization was required to obtain subscriber information, had not yet been issued at the time the LER was employed - The police believed the LER was proper and not contrary to law - The unique facts of this case heavily favoured an adjudication on the evidence - See paragraphs 63 to 76.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See Civil Rights - Topic 1609 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1555 and first Criminal Law - Topic 3183 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - An information to obtain (ITO) a search warrant stated that police had identified an IP address belonging to Varty which they believed was sharing child pornography files, and on seven occasions between December 19, 2012, and January 17, 2013, police were able to download child pornography files from the IP address - The ITO, which was sworn in March 2013, omitted the fact that police continued to monitor activity from the IP address but were unable to download a file after January 17 - Varty's home was searched and he was charged with child pornography offences - He argued that his s. 8 Charter rights were breached because the ITO was stale - The Saskatchewan Court of Queen's Bench disagreed - The issuing justice was entitled to infer that the information contained in the ITO was sufficiently credible and reliable to support an inference that child pornography remained on Varty's computer - A common sense inference was that Varty's interest in child pornography was more than momentary or fleeting, and that he had no impetus to get rid of the electronic files because he was unaware of the police investigation - A two month lag in the circumstances of this case was not unreasonable - See paragraphs 39 to 50.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Civil Rights - Topic 1555 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - [See first Criminal Law - Topic 3183 ].

Counsel:

Michael A. Segu, for the Crown;

John D. (Jack) Hillson, for the accused.

This application was heard before Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on February 19, 2015.

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