R. v. Villaroman (O.O.), 2012 ABQB 630

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 16, 2012
• Citations: 2012 ABQB 630;(2012), 557 A.R. 1 (QB)

R. v. Villaroman (O.O.) (2012), 557 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.020

Her Majesty the Queen (respondent/Crown) v. Oswald Oliver Villaroman (applicant/accused)

(100584283Q1; 2012 ABQB 630)

Indexed As: R. v. Villaroman (O.O.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Yamauchi, J.

October 16, 2012.

Summary:

While repairing the accused's laptop, a technician found child pornography and contacted the police. The police seized the computer and obtained a general warrant to search the computer image. The accused was charged with accessing and possessing child pornography. The accused applied to exclude the evidence alleging an unreasonable search and seizure contrary to s. 8 of the Charter.

The Alberta Court of Queen's Bench found that the police did not breach the accused's s. 8 rights and thus the evidence was not excluded. The court opined that it would not have excluded the evidence under s. 24(2) of the Charter, even if there had been a breach of s. 8.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused dropped his laptop computer off for repair - The computer technician found child pornography on the computer and contacted the police - The police seized the computer and obtained a general warrant to search the computer image - The accused was charged with possessing and accessing child pornography - The accused sought to exclude the evidence (Charter, s. 8) - The Alberta Court of Queen's Bench discussed the expectation of privacy in this context - The court stated that while the accused had a high expectation of privacy in the computer, his privacy was modified once he left the computer in a facility outside his home for maintenance and repairs - The technician did not breach the accused's modified expectation of privacy by performing that which the accused had retained him to do - See paragraphs 37 to 47.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Alberta Court of Queen's Bench stated that "The accused argues that he did not give up his high level of privacy in the Computer by leaving it with the MyMac [a repair shop]. Mr. Sopczak's [computer technician's] role was very limited, in the sense that the accused had left the Computer with the MyMac to undertake limited maintenance. Mr. Sopczak was not authorized to scour the contents of the Computer. Unlike Graham [Ont. S.C. 2010], this Court does not find that the accused's privacy rights were 'minimal'. A person maintains a certain level of privacy in their computer, even when the Computer is in the hands of a repair facility. Even to say that the expectation of privacy has been significantly reduced, as the court in Winchester [Ont. S.C. 2101] found, might not give the expectation of privacy that Fish J. found in Morelli [SCC 2010] the high standard it deserves. With respect, a better approach would be to refer to the level of privacy as being 'modified', as Karakatsanis J.A., found in Cole [Ont. C.A. 2011]. The level of modification would then be determined by the court examining the circumstances of the case before it" - See paragraph 44.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - Sections 489.1 and 490 of the Criminal Code set out what had to be done where items were seized and detained under a warrant - The Alberta Court of Queen's Bench held that noncompliance with those mandatory provisions did not result in a breach of s. 8 of the Charter - Section 8 protected against unreasonable search and seizure, but not against the detention of property, whether such detention was reasonable or unreasonable - Sections 489.1 and 490 provided the public with protection of persons and their property after the police had seized things - If the seizure was unlawful, the person might have a Charter remedy - If the seizure was lawful, the person had the right to require the seizing authorities to justify the continued possession of the seized items - Although a failure to comply with those provisions could point to the bona fides or mala fides of the police in retaining the seized items, it did not taint the entire seizure process and, as such, it did not affect the validity of the search and seizure itself - See paragraphs 128 to 152.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See both Civil Rights - Topic 1655.2 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1524 and both Civil Rights Topic 1655.2 ].

Civil Rights - Topic 1655.2

Property - Search and seizure - Warrantless search and seizure - Computers - The accused dropped his laptop computer off for repair - The computer technician found child pornography on the computer and contacted the police - The police seized the computer parts and subsequently obtained a general search warrant - The accused was charged with possessing and accessing child pornography - The accused sought to exclude the evidence (Charter, ss. 8 and 24) - The Alberta Court of Queen's Bench noted that the search and seizure of the computer was prima facie unreasonable because it was done without prior authorization - The court, however, found that the Crown rebutted the presumption of unreasonablenss because exigent circumstances existed, including the fact that the evidence could have been lost if the accused removed his computer from the shop - See paragraphs 48 to 54.

Civil Rights - Topic 1655.2

Property - Search and seizure - Warrantless search and seizure - Computers - While repairing the accused's laptop, a technician found child pornography and contacted the police - The police seized the computer and subsequently obtained a general search warrant allowing the police to make an exact duplicate image of the data and information on the computer - A police forensic analyst searched the image - The accused was charged with possessing and accessing child pornography - The accused applied to exclude evidence, alleging a warrantless search of the computer (Charter, s. 8), because the warrant only authorized the forensic analyst to copy the data, not to conduct a search - That is, police had to obtain a second warrant to search the image - The Alberta Court of Queen's Bench held that the police forensic analyst could search the entirety of the computer's hard drive, so long as his search was limited to the alleged offences - There was no breach of s. 8 - See paragraphs 116 to 127.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The Alberta Court of Queen's Bench stated that "Canadian law permits the police to rely on the evidence of third parties to arrive at the reasonable and probable grounds for seeking a warrant" - See paragraph 65.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - While repairing the accused's computer, a technician found child pornography and contacted police - The police seized the computer - Based on the computer technician's statements, the police constable prepared an Information To Obtain a general warrant - The warrant was issued and the computer image searched - The accused was charged - He claimed that the warrant should not have been issued - The Alberta Court of Queen's Bench noted that the computer technician was not an agent of the state, but just a neutral third party - The judge who issued the warrant had no reason to doubt the reliability of the information the technician provided to the constable - She was entitled to make that finding and the reviewing court could not question her finding without evidence that would show her finding to be misguided - See paragraphs 65 to 73.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The Alberta Court of Queen's Bench discussed generally whether a computer technician could provide a police affiant with sufficient information to give the affiant reasonable and probable grounds to justify issuance of a search warrant - See paragraphs 65 to 68.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The Alberta Court of Queen's Bench stated that "The role of the justice who is asked to issue a warrant is to evaluate whether the evidence before the court establishes reasonable and probable grounds that something can be found in the place the investigators intend to search, and that the recovered evidence will indicate or imply the commission of an offence under the Criminal Code: Scientology at para 29 [Ont. C.A. 1987]. The justice must weigh the evidence before them. That evidence will be contained in the ITO. If there is no evidence, or insufficient evidence, a warrant will not issue: Scientology ibid. The reviewing judge must not weigh, or re-weigh, the evidence that was before the justice in an attempt to determine whether that justice should have issued the warrant, or that judge would have issued the warrant" - See paragraph 63.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The Alberta Court of Queen's Bench referred to a summary of the principles with respect to the particularity an affiant had to provide in an Information To Obtain concerning the evidence they sought to garner from a search - The court also discussed how specific the description of the evidence had to be - See paragraphs 74 and 75.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - While repairing the accused's computer, a technician found child pornography and contacted police - The police seized the computer - A police constable prepared an Information To Obtain (ITO) a general warrant - The warrant was issued authorizing police to image the computer - The accused was charged with possessing and accessing child pornography - The accused claimed that the warrant should not have been issued because the description of what was to be searched in the ITO was overly broad - The Alberta Court of Queen's Bench rejected the accused's argument - The court stated that in view of the alleged offences, and looking at the ITO as a whole, the description of the items to be searched was not overly broad or vague - The alleged offences grounded the search - In this case, that was all the specificity required - See paragraphs 74 to 87.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - While repairing the accused's laptop, a technician found child pornography and contacted the police - The police seized the computer - A police constable prepared an Information To Obtain (ITO) a general warrant to search the computer - The warrant was issued - The accused was charged with, inter alia, accessing child pornography - The accused claimed that the ITO was misleading and did not offer the issuing justice an objective picture of the Crown's case - The Alberta Court of Queen's Bench rejected the accused's argument - The court noted that the constable incorrectly stated there were no other provisions of the Criminal Code under which he could seek a warrant - However, that statement did not affect the validity of the ITO as a whole, and there was a basis on which the judge could be satisfied that the relevant statutory preconditions to issuing a warrant were met - Accordingly there was no breach of s. 8 of the Charter - See paragraphs 88 to 115.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - [See second Criminal Law - Topic 3093 and first Criminal Law - Topic 3097 ].

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - [See first Civil Rights - Topic 1524 ].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 1984 CarswellAlta 121, refd to. [para. 37].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 38].

R. v. Morelli - see R. v. U.P.M.

R. v. Winchester (C.), [2010] O.T.C. Uned. 652; 73 C.R.(6th) 371; 2010 ONSC 652, refd to. [para. 39].

R. v. Graham (J.C.), [2010] O.T.C. Uned. 119; 214 C.R.R.(2d) 369; 2010 ONSC 119, refd to. [para. 40].

R. v. Cole (R.) (2011), 277 O.A.C. 50; 269 C.C.C.(3d) 402; 2011 ONCA 218, leave to appeal granted (2011), 428 N.R. 399; 291 O.A.C. 400 (S.C.C.), refd to. [para. 41].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 49].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 50].

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; 84 C.C.C.(3d) 173, refd to. [para. 52].

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449; 1987 CarswellOnt 1401 (C.A.), leave to appeal refused [1987] 1 S.C.R. vii; 82 N.R. 392; 23 O.A.C. 320, refd to. [para. 55].

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. 56].

R. v. Carrier (A.J.) (1996), 181 A.R. 284; 116 W.A.C. 284; 1996 ABCA 145, refd to. [para. 56].

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; 60 C.C.C.(3d) 161, refd to. [para. 57].

R. v. Ling (M.D.) (2009), 266 B.C.A.C. 281; 449 W.A.C. 281; 241 C.C.C.(3d) 409; 2009 BCCA 70, leave to appeal refused (2009), 399 N.R. 400; 285 B.C.A.C. 320; 482 W.A.C. 320 (S.C.C.), refd to. [para. 58].

United States of America v. Friedland, [1996] O.J. No. 4399 (Gen. Div.), refd to. [para. 59].

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. [para. 59].

Metropolitan Life Insurance Co. v. Hover (1999), 237 A.R. 30; 197 W.A.C. 30; 1999 ABCA 123, refd to. [para. 59].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), affd. [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 65].

R. v. Durling (J.C.) (2006), 249 N.S.R.(2d) 229; 792 A.P.R. 229; 214 C.C.C.(3d) 49; 2006 NSCA 124, refd to. [para. 66].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125; 129 C.C.C.(3d) 361, refd to. [para. 69].

R. v. Khan (2005), 133 C.R.R.(2d) 29; 2005 CarswellOnt 8295 (Sup. Ct.), refd to. [para. 74].

R. v. Jonnason (T.) (1993), 89 Man.R.(2d) 72; 21 W.C.B.(2d) 32 (Q.B.), refd to. [para. 75].

Times Square Book Store, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503 (C.A.), refd to. [para. 75].

R. v. Lubell (1973), 11 C.C.C.(2d) 188; 1973 CarswellOnt 1068 (H.C.), refd to. [para. 79].

R. v. Print Three Inc. et al. (1985), 10 O.A.C. 220; 20 D.L.R.(4th) 586; 1985 CarswellOnt 914 (C.A.), refd to. [para. 79].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 278 C.C.C.(3d) 496; 2011 ONCA 632, refd to. [para. 81].

R. v. Rafferty, 2012 ONSC 703, refd to. [para. 84].

R. v. Christianson (1986), 47 Sask.R. 143; 26 C.C.C.(3d) 391; 1986 CarswellSask 414 (Q.B.), refd to. [para. 94].

R. v. Darby (D.D.) (2012), 519 A.R. 366; 539 W.A.C. 366; 2012 ABCA 27, leave to appeal dismissed (2012), 443 N.R. 392 (S.C.C.), refd to. [para. 95].

R. v. Ha (M.T.) (2009), 249 O.A.C. 43; 2009 ONCA 340, leave to appeal refused (2009), 403 N.R. 388; 263 O.A.C. 398 (S.C.C.), refd to. [para. 106].

R. v. Ford (D.M.) (2008), 252 B.C.A.C. 108; 422 W.A.C. 108; 229 C.C.C.(3d) 443; 2008 BCCA 94, refd to. [para. 107].

R. v. Bishop (2007), 75 W.C.B.(2d) 258; 2007 ONCJ 441, refd to. [para. 108].

R. v. Blazevic (M.) et al., [2011] O.T.C. Uned. 7549; 2011 ONSC 7549, refd to. [para. 110].

R. v. Weir (D.T.) (1998), 213 A.R. 285; 59 Alta. L.R.(3d) 319; 1998 ABQB 56, affd. (2001), 281 A.R. 333; 248 W.A.C. 333; 156 C.C.C.(3d) 188; 2001 ABCA 181, refd to. [para. 110].

R. v. Dragos (B.), [2009] O.T.C. Uned. N22; 200 C.R.R.(2d) 227 (Sup. Ct.), refd to. [para. 110].

Edmonton Police Service v. A.H., [2011] A.R. Uned. 312; 2011 ABPC 124, refd to. [para. 110].

R. v. Pelich (O.), [2012] O.T.C. Uned. 3027; 2012 ONSC 3027, refd to. [para. 115].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 271 C.C.C.(3d) 418; 2011 BCCA 221, refd to. [para. 118].

R. v. Vu (T.L.) (2011), 315 B.C.A.C. 36; 535 W.A.C. 36; 2011 BCCA 536, refd to. [para. 125].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 70 C.C.C.(2d) 385, refd to. [para. 125].

R. v. Twitchell (M.A.) (2010), 511 A.R. 33; 2010 ABQB 693, refd to. [para. 126].

R. v. Guiller (1985), 25 C.R.R. 273; 1985 CarswellOnt 1731 (Dist. Ct.), refd to. [para. 132].

R. v. Cunliffe, 2006 CarswellOnt 7445 (Sup. Ct.), refd to. [para. 133].

R. v. MacNeil (M.) (1994), 130 N.S.R.(2d) 202; 367 A.P.R. 202; 1994 CarswellNS 358 (S.C.), refd to. [para. 134].

R. v. Correia (2005), 133 C.R.R.(2d) 365; 2005 ONCJ 435, refd to. [para. 134].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289; 18 D.L.R.(4th) 32 (C.A.), affd. [1989] 1 S.C.R. 93; 91 N.R. 201; 31 O.A.C. 177; 56 D.L.R.(4th) 46, refd to. [para. 134].

R. v. Martens (E.M.), [2004] B.C.T.C. 1450; 2004 BCSC 1450, refd to. [para. 135].

R. v. Paterson (B.W.), [2011] B.C.T.C. Uned. 1728; 2011 BCSC 1728, refd to. [para. 135].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 136].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20; 78 C.C.C.(3d) 1 (C.A.), refd to. [para. 138].

R. v. Hicks (N.) et al. (1999), 23 B.C.T.C. 332; 45 W.C.B.(2d) 181; 2000 BCSC 89, refd to. [para. 139].

R. v. J.T. (2006), 313 N.B.R.(2d) 1; 809 A.P.R. 1; 2006 NBPC 35, refd to. [para. 141].

R. v. Tripp (J.) - see R. v. J.T.

R. v. Raponi (W.), [2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 185 C.C.C.(3d) 338; 2004 SCC 50, refd to. [para. 142].

R. v. Gill (N.) (2007), 415 A.R. 340; 72 Alta. L.R.(4th) 387; 2007 ABPC 69, refd to. [para. 144].

Moyer, Re (1994), 95 C.C.C.(3d) 174 (Ont. Gen. Div.), refd to. [para. 145].

R. v. Gow (N.T.) (2010), 501 A.R. 347; 259 C.C.C.(3d) 364; 2010 ABQB 564, refd to. [para. 147].

R. v. Hatton (R.A.) (2011), 509 A.R. 262; 274 C.C.C.(3d) 538; 2011 ABQB 242, refd to. [para. 147].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 2010 ABCA 180, refd to. [para. 154].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 155].

R. v. Simpenzwe (P.N.) (2009), 512 A.R. 49; 2009 ABQB 579, refd to. [para. 158].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 2]; sect. 24(2) [para. 153].

Criminal Code, R.S.C. 1985, c. C-46, sect. 489.1, sect. 490 [para. 33].

Authors and Works Noticed:

Fontana, James, and Keehan, David, The Law of Search and Seizure (8th Ed. 2010), p. 459 [para. 106].

Counsel:

Ian D. McKay and Heather Ferg (Fagan and McKay), for the applicant/accused;

Jennifer Rees (Alberta Justice - Specialized Prosecution, Technology and Internet Crime), for the respondent/Crown.

This application was heard on March 15 and 16, 2011 and June 28 and 29, 2012, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 16, 2012.