R. v. Ward (D.),

• Jurisdiction: Ontario
• Judge: Winkler, C.J.O., Doherty and Goudge, JJ.A.
• Neutral Citation: 2012 ONCA 660
• Citation: (2012), 296 O.A.C. 298 (CA),2012 ONCA 660,112 OR (3d) 321,296 OAC 298,(2012), 296 OAC 298 (CA),112 O.R. (3d) 321,296 O.A.C. 298
• Date: 12 January 2012
• Court: Court of Appeal (Ontario)

R. v. Ward (D.) (2012), 296 O.A.C. 298 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. OC.006

Her Majesty the Queen (respondent) v. David Ward (appellant)

(C50206; 2012 ONCA 660)

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

Ontario Court of Appeal

Winkler, C.J.O., Doherty and Goudge, JJ.A.

October 2, 2012.

Summary:

Armed with a search warrant, the police went to the accused's home and searched his computer. Child pornography images and videos were found. The accused was charged with possession of child pornography and with accessing child pornography.

The Ontario Court of Justice convicted the accused. The accused appealed, arguing that the search ran afoul of his expectation of privacy and violated his s. 8 Charter rights. The accused also argued that the information to obtain the search warrant was inadequate.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The German authorities forwarded to the RCMP a list of 229 Internet Protocol (IP) addresses and the times and dates associated with the accessing of child pornography on a German website by Canadian users, as well as copies of child pornography images - By accessing a public website, the RCMP determined that three of the addresses and times belonged to Internet Service Provider (ISP) Bell Sympatico and were connected to the Sudbury area - The RCMP then wrote to Bell Sympatico asking for subscriber information of the subscriber to which were assigned the above mentioned three IP addresses and times - The request indicated that it was being sent in accordance with s. 7(3)(c.1) of the Personal Information Protection Electronic Documents Act (PIPEDA) - The request also indicated that the disclosure was requested only for the purpose of an investigation in relation to child sexual exploitation offences under the Criminal Code, a "law of Canada" - Section 7(3)(c.1) allowed an organization to disclose personal information to a lawfully authorized government institution in relation to an investigation relating to the enforcement of a "law of Canada" - Bell Sympatico chose to comply with the RCMP's request and disclosed the name and address of the subscriber referred to in the RCMP's letter - That subscriber was the accused - The accused had a service contract with Bell Sympatico that prohibited Internet Service use for child pornography and other criminal offences - The RCMP contacted the Sudbury police - Further investigation revealed that the accused lived alone, had a computer, and was a Bell Sympatico customer - Armed with this information, the information provided by the German authorities, knowledge of the nature of the images, and the subscriber information provided by Bell Sympatico, the Sudbury Police applied for, and obtained, a search warrant - The ensuing search yielded over 30,000 images and 373 videos of child pornography - The accused was convicted at first instance of possession of child pornography and of accessing child pornography - The accused appealed, arguing that the search ran afoul of his expectation of privacy and violated his s. 8 Charter rights - The accused also argued that the information to obtain the search warrant (ITO) was inadequate - The Ontario Court of Appeal dismissed the appeal - Given the RCMP's "specific and narrow" request under PIPEDA (they only asked for the subscriber's name and address) and the nature of the crimes being investigated, the reasonable informed person would accept that it was reasonable for the ISP to make the disclosure requested - If disclosure by the ISP was a reasonable response to the request then, in these circumstances, the accused's privacy claim in the face of the request was not objectively reasonable - As for the service agreement, a reasonable and informed person would not expect that society should recognize that the accused had a reasonable expectation of privacy in respect of the subscriber information held by Bell Sympatico - As for the ITO, it contained sufficient allegations to provide a basis upon which the issuing justice could infer that there was a reasonable probability that child pornography had been accessed and stored on the accused's computer - See paragraphs 1 to 117.

Civil Rights - Topic 1643

Property - Search and seizure - Extent of protection - The Ontario Court of Appeal discussed the "broad and purposive interpretation" of s. 8 of the Canadian Charter of Rights and Freedoms, which provided that "Everyone has the right to be secure against unreasonable search and seizure" - The court indicated, inter alia that (a) s. 8 stood as "a shield against unjustified state intrusions on personal privacy", (b) privacy was about being left alone by the state and not being able to be called to account for anything and everything one did, said or thought, (c) personal privacy, like any other individual right, could not be absolute in a democratic society, and (d) "expectation of privacy was a normative rather than a descriptive standard" - See paragraphs 59 to 88.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Information - Sufficiency of form and content - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Trapp (B.A.) (2011), 377 Sask.R. 246; 528 W.A.C. 246; 2011 SKCA 143, refd to. [para. 3].

R. v. Spencer (M.D.) (2011), 377 Sask.R. 280; 528 W.A.C. 280; 2011 SKCA 144, refd to. [para. 3].

R. v. Wilson (C.), [2009] O.T.C. Uned. R26 (Sup. Ct.), refd to. [para. 3].

R. v. Vasic (C.), [2009] O.T.C. Uned. 416; 185 C.R.R.(2d) 286 (Sup. Ct.), refd to. [para. 3].

R. v. Brousseau (P.), [2010] O.T.C. Uned. 6753; 264 C.C.C.(3d) 562; 2010 ONSC 6753, refd to. [para. 3].

R. v. McNeice (K.G.), [2010] B.C.T.C. Uned. 1544; 2010 BCSC 1544, refd to. [para. 3].

R. v. Kwok (A.), [2007] O.T.C. 291; 78 W.C.B.(2d) 21 (Sup. Ct.), refd to. [para. 3].

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

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 12].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 12].

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. 12].

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. 60].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 61].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, consd. [para. 83].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 61].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 61].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 62].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 63].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 63].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 63].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

Warman v. Wilkins-Fournier et al. (2010), 261 O.A.C. 245; 100 O.R.(3d) 648; 2010 ONSC 2126 (Div. Ct.), refd to. [para. 75].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 76].

Smith v. Maryland (1979), 442 U.S. 735, refd to. [para. 76].

United States of America v. Miller (1976), 425 U.S. 435, refd to. [para. 76].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 77].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, [para. 77].

R. v. D'Amour (M.) (2002), 163 O.A.C. 164; 166 C.C.C.(3d) 477 (C.A.), refd to. [para. 77].

R. v. Cole (R.) (2011), 277 O.A.C. 50; 105 O.R.(3d) 253; 2011 ONCA 218, refd to. [para. 77].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 86].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 86].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, consd. [para. 86].

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, consd. [para. 110].

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. 112].

United States of America v. Perrine (1998), 518 F.3d 1196 (10th Cir.), refd to. [para. 76, footnote 2].

United States of America v. Bynum (2010), 604 F.3d 161 (4th Cir.), refd to. [para. 76, footnote 2].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.014(1) [para. 48].

Personal Information Protection Electronic Documents Act, S.C. 2000, c. 5, sect. 3 [para. 41]; sect. 5(3) [para. 42]; sect. 7(3)(c.1) [para. 43].

Authors and Works Noticed:

Hubbard, Robert W., DeFreitas, Peter and Magotiaux, Susan, The Internet - Expectations of Privacy in a New Context (2001), 45 Crim. L.Q. 170, pp. 177 to 185 [para. 76].

Morin, Suzanne, Updated: Business Disclosure of Personal Information to Law Enforement Agencies: PIPEDA and the CNA Letter of Request Protocol (2011), pp. 1 to 20 [para. 36].

Slane, Andrea and Austin, Lisa M., What's in a Name? Privacy and Citizenship in the Voluntary Disclosure of Subscriber Information in Online Child Exploitation Investigations (2011), 57 Crim. L.Q. 486, pp. 490 [para. 97]; 496 to 498 [para. 45]; 500 to 503 [para. 68].

Stringham, James A.Q., Reasonable Expectations Reconsidered: A Return to the Search for a Normative Core of Section 8? (2005), 23 C.R.(6th) 245, generally [para. 87].

Westin, Alan F, Privacy and Freedom (1967), p. 32 [para. 73].

Counsel:

Jonathan Dawe, for the appellant;

Michal Fairburn, for the respondent;

James Stribopoulos and Lindsay Daviau, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on January 12, 2012, by Winkler, C.J.O., Doherty and Goudge, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Doherty, J.A., and released on October 2, 2012.