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Indexed as: R. v. Weir
Between Her Majesty the Queen, and Dale T. Weir, accused
A.J. No. 155 Action No. 9703 0841C.1
Alberta Court of Queen's Bench Judicial District of Edmonton
P. Smith J.
February 10, 1998. (71 pp.)
Gregory Lepp, for the Attorney General of Alberta. Sid M. Tarrabain and Walter Raponi, for the accused.
REASONS FOR DECISION IN A VOIR DIRE AND REASONS FOR JUDGMENT
P. SMITH J.:
Table of Contents
Authorities Cited by Crown . . . . . . . . . . . . . . . . . 2
Authorities Cited by Defence . . . . . . . . . . . . . . . . 2
Other Authorities Considered . . . . . . . . . . . . . . . . 3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . 4
Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Relevant Legislation . . . . . . . . . . . . . . . . . . . .11
Schedules to These Reasons . . . . . . . . . . . . . . . . .16
Continuity and Reliability of Exhibits . . . . . . . . . . .16
Characterization Facts . . . . . . . . . . . . . . . . . . .18
a) Accepted characterization of the facts . . . . . .18
b) Facts as characterized by the defence . . . . . .19
(i) Actions of the ISP . . . . . . . . . . . . .19
(ii) Actions of the police prior to the warrant .22
Does E-Mail Carry a Reasonable Expectation of Privacy . . .24
Section 8 of the Charter . . . . . . . . . . . . . . . . . .33
a) Is the search warrant unlawful? . . . . . . . . .33
b) Is the search warrant valid? . . . . . . . . . . .38
c) If a warrantless search was found, is the warrant valid? . . . . . . . . . . . .42
Section 24(2) of the Charter, Assuming a Warrantless Search 45 Section 24(2) of the Charter, No Breach of Section 8 . . . .47
Section 7 of the Charter . . . . . . . . . . . . . . . . . .47
The Accused's Statement . . . . . . . . . . . . . . . . . .51
Reasons for Conviction . . . . . . . . . . . . . . . . . . .52
note: Page numbers refer to paper copy only.]
AUTHORITIES CITED BY THE CROWN
¶ 1 R. v. Broyles (1991), 68 C.C.C. (3d) 308 (S.C.C.) R. v. Donaldson (1990), 58 C.C.C. (3d) 294 R. v. Sismey (1990), 55 C.C.C. (3d) 281 R. v. Doliente (1996), 108 C.C.C. (3d) 137 Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 R. v. Conrad (1989), 51 C.C.C. (3d) 311 Debot v. The Queen (1989), 52 C.C.C. (3d) 193 Regina v. Yorke (1992), 77 C.C.C. (3d) 529 Regina v. Fegan (1993), 80 C.C.C. (3d) 356 R. v. Christopher Douglas (1997), (Ont. Crt. of Justice) Regina v. Power (1994), 89 C.C.C. (3d) 1 R. v. Shirose (1997), 115 C.C.C. (3d) 310 (Ont. C.A.) R v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.) R. v. Blinch (1993), 83 C.C.C. (3d) 158 (S.C.C.) R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) Caslake v. Queen (1997), 25023 (S.C.C.).
AUTHORITIES CITED BY THE DEFENCE
¶ 2 R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (S.C.C.) (Headnote only) R. v. Fleet Aerospace Corp. (1985), 19 C.C.C. (3d) 385 (Ont. H.C.J.) Canadian Broadcasting Corp. v. Lessard (1991), 67 C.C.C. (3d) 517 (S.C.C.) (Headnote & last pages) Descoteaux et al. v. Mierzwinski and Attorney-General of Quebec et al. (1982), 70 C.C.C. (2d) 385 (S.C.C.) (Headnote and last pages) R. v. Sanchez and Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. C.A.) (Headnote & last pages) R. v. Wiley (1993), 84 C.C.C. (3d) 161 (S.C.C.) R. v. Lerke (1986), 24 C.C.C. (3d) 129 (AB C.A.) R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) s. 487(2.1) and (2.2) of the Criminal Code Re Banque Royale du Canada and the Queen (1985), 18 C.C.C. (3d) 98 (PQ C.A.) s. 184 of the Criminal Code R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.) (Headnote only) R. v. Jewitt (1985), 21 C.C.C. (3d) 7 (S.C.C.) (Headnote only) R. v. Campbell and Shirose, (1997), 115 C.C.C. (3d) 310 (ON C.A.) R. v. Mack (1989), 44 C.C.C. (3d) 513 (S.C.C.) R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) R. v. Kokesh (1990), 61 C.C.C. (3d) 207 (S.C.C.) R v. Matthiesson 9 W.W.R. 739, (AB Q.B.) R. v. Dersch (1993), 85 C.C.C. (3d) 1 (S.C.C.) R. v. Mellenthin (1992), 76 C.C.C. (3d) 481 (S.C.C.) R. v. Poirier (1997), 116 C.C.C. (3d) 551 (Que. C.A.) R v. Young (1997), 116 C.C.C. (3d) 350 (Ont. C.A.) R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) Caslake v. Queen (1997), 25023 (S.C.C.) The Law of Search & Seizure in Canada (4th ed.) by James A. Fontana, Butterworths, Toronto and Vancouver, Chapter 23 and pages 46-53.
OTHER AUTHORITIES CONSIDERED
¶ 3 United States v. Maxwell 42 M.J. 568 (A.F.Ct.Crim.App.) Home is Where Your Modem Is: An Appropriate Application of Search and Seizure Law to Electronic Mail (1996), 34 AM.C.L.Rev. 163, by Megan Connor Berton The Oxford English Dictionary (2d ed.) prepared by J.A. Simpson and E.S.C. Weiner, Clarendon Press, Oxford, 1989.
¶ 4 The accused is charged with possession of child pornography. His Internet service provider ("ISP") during the course of a routine repair of the accused's e-mail box, discovered an e-mail message containing attachments which the ISP thought were child pornography. The ISP informed the police of their find and, when asked, copied the e-mail message and attachments to the police. Later, the police asked for and obtained a warrant to search the accused's residence for computers and related equipment. A central processing unit tower cabinet (CPU) and disks were seized. The information subsequently extracted from the computer was found to consist of the original e-mail message and attachments, together with other stored data that presented as child pornography.
¶ 5 The defence challenges the actions of the ISP alleging a breach of the accused's right to privacy to his e-mail. The defence characterizes the asking for and receipt of the e-mail message by the police as a warrantless search and seizure. The defence asks that the warrant be quashed by virtue of the abuse by the state and its agents of the court's process and by virtue of the breach of the accused's Charter rights. It further alleges the warrant was invalid and the searches and seizures were unreasonable. Last, the defence submits that the administration of justice will be brought into dispute if the evidence obtained under the searches is found to be admissible.
¶ 6 At trial I found against the defence on the voir dire. I found the accused guilty as charged. These are my reasons for both decisions.
¶ 7 On or about June 22, 1996, a person using the Internet address firstname.lastname@example.org sent an e-mail message to email@example.com which included attachments, the names of which carried standard forms of designation for digital photographs, graphic images and movies (jpg, gif and avi respectively). The body of the message said: "Try this". A copy of the message with names of the attachments is attached to this decision as Schedule "1". The message passed from the computer of the sender, christed, to that sender's ISP to the ISP of the recipient which was Alberta Supernet ("Supernet"). Upon arriving at Supernet, the file landed briefly on a queue directory before being appended to the file "owned" by the user, dtweir. This file used by dtweir on Supernet's machine is customarily called his e-mail box. Dtweir by entering his own private password and activating his mail software would cause the e-mail in his mailbox at Supernet to be downloaded to his home computer.
¶ 8 The message sent, however, was too large to be accommodated by the e-mail box of dtweir. Supernet's usual active e-mail box size was two megabytes with another two megabytes of reserve for a total of four megabytes being available to hold a message. Once the message exceeded the two megabyte size, the mailbox would be overloaded and inaccessible by dtweir.
¶ 9 On or about June 24, 1996, dtweir lodged a complaint with Supernet regarding his e-mail box.
¶ 10 In June of 1996 Supernet had no set policy as to how to deal with such complaints. Their challenge in a repair situation was to effectively repair the box and at the same time respect the privacy of the box "owner".
¶ 11 The task of repairing the dtweir e-mail box fell to Richard Murray, a technician at Supernet who was on shift at the relevant time. Although acknowledging that the message to dtweir could simply have been deleted in its entirety to free up storage space and fix the e-mail box, Mr. Murray testified that, because of customer complaints about deleting important e-mail, his first step consisted of opening up the e-mail message to look for large attachments that could be deleted. Around June of 1996 he recalled that many clients were e-mailing programs such as Netscape back and forth. These large programs could easily overload an e-mail box. It was customary at that time for Supernet to delete the large attachments while trying to preserve for the client the more important mail.
¶ 12 Mr. Murray, in searching the christed/dtweir message for large attachments that could be safely deleted, found a number of file names which caused him to suspect the attachments were child pornography. Mr. Murray was concerned Supernet was being used for something illegal. He contacted his supervisor, Mr. Clayton Hasson, the System Administrator, with his concerns. From that point on Mr. Hasson was responsible for the problem and Mr. Murray followed Mr. Hasson's instructions.
¶ 13 Mr. Hasson testified that he and Mr. Murray viewed some of the attachments and formed the opinion that they did contain child pornography. Mr. Hasson put a "lock" on the account of dtweir by adding a character to the user name. This made it impossible for dtweir to access all the Internet services provided by Supernet. In other words, in addition to not being able to download his e-mail, dtweir was unable to log into other Supernet services.
¶ 14 Mr. Hasson discussed the situation with his supervisor, Mr. Lonnie McLean and together they decided to call the police. On June 24, 1996 Mr. McLean telephoned the Edmonton Police Service. That telephone call was the first contact between Supernet and the police regarding this investigation. Staff Sergeant Snaterse of the Vice Detail took the complaint from Mr. McLean. Staff Sergeant Snaterse then contacted Detective Sidor of the Technological Crime Unit and asked Detective Sidor to contact Mr. McLean at Supernet. Detective Sidor telephoned Mr. McLean. Mr. McLean put Detective Sidor in touch with Mr. Hasson. Mr. Hasson related what had occurred to that point to Detective Sidor including his belief that the images were child pornography.
¶ 15 Detective Sidor requested that Mr. Hasson copy and forward the e-mail message intended for dtweir to Detective Sidor's own e-mail box. The original was left at Supernet. This was done at 15:16 hours on June 24, 1996. (Schedule I)
¶ 16 Detective Sidor and two members of the Vice Detail of the Edmonton Police Service viewed the attachments and confirmed that Supernet was right. The images were of child pornography.
¶ 17 On either June 24 or June 25, 1996 Detective Sidor told Mr. Hasson to have the dtweir mailbox repaired to allow the client access to his e-mail message. The Detective was concerned that if the e-mail box was not repaired in the ordinary course, the suspect would think that "the jig was up" and could potentially delete evidence from his home computer. The Detective did not know technically how Supernet would repair the mailbox. He also told the Supernet employees that since there had been contact with the police, the employees could now be considered agents of the State and were not to access the dtweir mailbox. Detective Sidor thought, both from speaking to Mr. Hasson and from his own experience, that once the e-mail box was repaired the files would be automatically downloaded from the dtweir e-mail box at Supernet to the customer's computer, assuming the customer logged into his e-mail box.
¶ 18 Mr. Hasson testified that Detective Sidor told him to do what he would normally do in the situation. Mr. Hasson unlocked the dtweir account but did nothing to repair the mailbox. Mr. Hasson left instructions with his technical staff that should the customer again contact Supernet requesting access to the e-mailbox, the customer's storage quota would be increased to allow the e-mail to be downloaded.
¶ 19 Mr. Murray received a telephone call from the customer, dtweir, indicating trouble accessing his e-mail at some subsequent point. Mr. Murray agreed the telephone call likely came after he gave his statement to the police on July 9, 1996. As a result of that call, Mr. Murray expanded the storage size for the e-mail box to allow the e-mail in the box to pass through to the customer.
¶ 20 During his conversations with Mr. Hasson, Detective Sidor learned that the client, dtweir, was listed for billing purposes as Dale Weir and that the address given by this customer to Supernet was 61 Deerpark Boulevard, Spruce Grove, Alberta. Detective Sidor checked the motor vehicle database through the Edmonton Police Service computer and confirmed that Dale Thomas Weir, the accused, resided at that address. On or after July 9, 1996, Detective Sidor took statements from Mr. Hasson and Mr. Murray and also prepared a draft of the Information to Obtain a Search Warrant. After review of the Information with Crown counsel, and a redraft, the Information was presented to Assistant Chief Judge Caffaro of the Provincial Court of Alberta on June 17, 1996. The Information is attached to this Decision as Schedule "2". Chief Judge Caffaro signed the warrant also attached as part of Schedule "2".
¶ 21 The warrant was executed on July 18, 1996. A CPU and some diskettes were seized. The CPU tower was not turned on at the time of the search. To seize the CPU tower, it had to be disconnected from the monitor, keyboard and mouse. There were no difficulties encountered during the search.
¶ 22 During the course of the search, Mrs. Weir directed Detective Sidor's attention to the telephone. On the telephone line was a male person identifying himself as Dale Weir. Mr. Weir had a brief conversation with Detective Sidor during which he indicated that he wanted to cooperate. He also said that graphic image files could be located on the directories "temp" and "dale" and that "it was bad judgment" on his part. When asked if the directories were password protected, Mr. Weir said they were not. There was some discussion about whether Mr. Weir should talk to his employer. Detective Sidor also advised him that it would be best if he contacted a lawyer. During the call no threats were made nor were inducements given.
¶ 23 Following the execution of the search warrant, the CPU was taken to the police station and Detective Sidor, using procedures he was taught at various courses including some at the Canadian Police College, extracted the relevant files for court purposes. Detective Sidor copied the active computer files to a tape and then copied to diskette approximately 190 computer files containing alleged child pornography. They included some of the attachments to the e-mail message that originally attracted Supernet's attention.
¶ 24 Subsequently, Mr. Weir was charged with possession of child pornography. The charge as amended at trial reads as follows:
Count #1: that he between June 14, 1996 and July 18, 1996 both dates inclusive in the City of Spruce Grove in the Province of Alberta did have in his possession child pornography contrary to Section 163.1(4) of the Criminal Code.
¶ 25 Criminal Code Section 163.1(1)
163.1(1) In this section, "child pornography" means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years
¶ 26 Criminal Code Section 163.1 (4)
163.1(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years or (b) an offence punishable on summary conviction.
¶ 27 Criminal Code Section 487. (1)
487.(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, or
... may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice of some other justice for the same territorial division in accordance with section 489.1.
(2.1) A person authorized under this section to search computer system in a building or place for data may (a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system (b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output (c) seize the print-out or other output for examination or copying and (d) use or cause to be used any copying equipment at the place to make copies of the data. (2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search (a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for (b) to obtain a hard copy of the data and to seize it and (c) to use or cause to be used any copying equipment at the place to make copies of the data.
¶ 28 Charter of Rights S. 7
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
¶ 29 Charter of Rights S. 8
8. Everyone has the right to be secure against unreasonable search or seizure.
¶ 30 Charter of Rights S. 24.(1)
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
¶ 31 Criminal Code Section 184
184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if the interception is necessary for the purpose of providing the service, (ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or (iii) if the interception is necessary to protect the person's rights or property directly related to providing such service or
¶ 32 Criminal Code Section 193
193.(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully
(a) uses or discloses such private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or (b) discloses the existence thereof,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication
(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere or
SCHEDULES TO THESE REASONS
¶ 33 Attached to these reasons are three schedules:
Schedule 1: E-mail message copied by the ISP and sent to the police (Exhibit 5) Schedule 2: Information to Obtain Search Warrant and Warrant to Search (Exhibit 45) and Schedule 3: List of computer files found to be child pornography, selected by check mark from Exhibit 46.
CONTINUITY AND RELIABILITY OF EXHIBITS
¶ 34 The Edmonton City Police Technical Crimes Unit consists of two officers, both trained in computer forensics. Detective Sidor handled the investigation of Mr. Weir. Detective Johnson handled the investigation of the owner of the christed e-mail address, Mr. Christenson.
¶ 35 At the voir dire Detective Sidor testified as to the methods he used to extract information from Mr. Weir's CPU. His methods were not seriously questioned by the defence and were endorsed by the two expert witnesses called at the voir dire (Mr. Verheijen and Mr. Boeske), to the extent their qualifications allowed for such an endorsement. Detective Johnson testified later, at the trial.
¶ 36 My view, on all of the voir dire evidence, is that the methods used were reliable. Further, there is no break in the exhibit chain which raises an issue on continuity of exhibits.
¶ 37 I raise these matters, even though they are not seriously disputed, for the following reasons.
¶ 38 The Crown relies on an unseen process of extraction of non-visual information from a CPU. Further, the Crown had the diskettes which contain the extracted copies of what was on the CPU, again non-visual information, made exhibits at the voir dire. Although visual representations (ie. printouts) of the data were made exhibits, they were made exhibits only for ease of reference. In other words, to be consistent with the alleged offence in which computer generation of the images is alleged (ie. no hard copy), the hard copy was entered only to allow me to consider the evidence outside the courtroom without the need to use a computer.
¶ 39 The use of unseen procedures to extract information is not new. Blood analyses, breathalyser tests and photo radar are examples of processes of information extraction which have been subjected to reliability tests over the years. Because computer data can be manipulated, extraction reliability may arise in another case. It did not arise in this one.
¶ 40 Second, because the evidence extracted from the CPU to diskette is not something I can see without the use of a computer, exhibit control is exceedingly important. The exhibits in this case were well controlled. The police were careful to keep the confirmatory evidence of the tip separate from the evidence extracted from Mr. Weir's CPU. Although some of the attachments extracted from both sources look the same, their source has been identified, they have been kept separate, and their continuity ensured.
CHARACTERIZATION OF THE FACTS
a) Accepted characterization of the facts
¶ 41 The defence has urged me to characterize the facts in a number of different ways. I find the following.
¶ 42 A private entity, the ISP, stumbled on evidence. The ISP tipped the police to what it believed to be the commission of an offence. The police sought confirmation of the offence by being allowed to see the message about which the ISP was concerned. The message was copied to the police as confirmation only. Subsequently, the police applied for a warrant to search the customer's home.
b) Facts as characterized by the defence (i) Actions of the ISP
¶ 43 I decline to adopt other suggestions made by defence as to how the facts should be characterized. The defence has urged upon me that the ISP, by virtue of its function in mail delivery, was at all times an agent of the state. The defence relies on R. v. Lerke (1986), 24 C.C.C. (3d) 129 (AB C.A.) to bolster its argument. In R. v. Lerke, a tavern employee conducted a search and seizure consequent to a citizen's arrest. Because the arrest of a citizen by a citizen is a governmental function, it was found that the search and seizure consequent to the arrest had to be lawful under arrest law. In Lerke the search was found to be unlawful and unreasonable.
¶ 44 The defence argues that the ISP, not unlike the citizen performing the arrest function, was performing a governmental function similar to that performed by Canada Post. Consequent to their governmental function, the ISP performed an unlawful seizure by opening the mail of its customer on a mere suspicion and by copying the mail to look at the attachments. Because it was performing a governmental function, the ISP was an agent of the state. Whether or not it was an agent of the state the search and seizures performed were incidental to its governmental function and were unlawful and unreasonable, so argues the defence.
¶ 45 A sub-characterization of these facts is that the ISP is a mail service provider much like Canada Post. The defence alleges e-mail deserves the same class of privacy as first class mail. By intercepting the mail, copying it and sending it to the police, the ISP committed an offence. I deal with this representation further under s. 7.
¶ 46 I decline to accept the facts characterized as such by the defence. In my view, it cannot be said that the ISP was performing a governmental function. ISPs are private organizations. They are unregulated. Efforts to regulate ISPs are frustrated because ISPs used by a country's citizens can be located outside the country's geographical boundaries. It is not unusual for a message sent by a Canadian citizen to pass through Internet nodes in countries other than Canada in order to reach its destination in Canada. The message and/or its hidden headers are vulnerable to manipulation at each node.
¶ 47 Further, first class mail is subject to legislation which has been developed over many years. E-mail over the Internet is relatively new. It arrived in the main in Alberta in 1989. The Internet, to the extent it can be called a thing, came into existence in the 1960s. Despite its newness for the general public, it is developing by leaps and bounds and to this day is mostly unregulated by governments. The evidence in this trial is that some ISPs, particularly the leaders in the field such as America Online, self-regulate to some degree. An example of the type of self-regulation that can be done by an ISP is to refuse to carry certain news groups which are known to carry child pornography. I understand from the evidence in this trial that there are about 6 out of more than 15,000 news groups which are known to carry child pornography. Many more news groups than the 6 which are known to carry child pornography carry it in a hidden manner. Therefore, self-regulation, though admirable, can do little to curb Internet distribution of child pornography. I cannot see how a private entity such as an ISP can be said to be performing a governmental function when these circumstances prevail.
¶ 48 Further, Lerke is an unusual case. Search and seizures consequent to performance of a government function is relatively rare. Also, the right to make a citizen's arrest has been enshrined in the law for a long time.
¶ 49 With international agreements, it may come to pass some time in the future that ISPs will be regulated. Having said this, I cannot ignore the evidence of Mr. Boeske that the wish found in Canadian Government documents for such regulation is no more than a "pious hope" today. At the present time however, an analogy likening the ISP to the citizen making an arrest or to the function of Canada Post is not persuasive.
¶ 50 In my view, the current law sufficiently regulates the actions of the state and its agents in relation to the invasion of the citizen's right to privacy in e-mail. I refer in part to the test for when an informant becomes an agent of the state as set out in R v. Broyles (1991), 68 C.C.C. (3d) 308 (S.C.C.) at p. 319:
... would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
I also refer to the peculiarities of e-mail, how they touch upon the expectation of privacy, and the Criminal Code sections dealing with unlawful interceptions. I address these two points later in these reasons.
(ii) Actions of the police prior to the warrant
¶ 51 A further characterization of the facts urged upon me by the defence, which I also decline to accept, is the following.
¶ 52 A private entity, the ISP, stumbles upon evidence. The private entity tips the police to what it believes to be the commission of an offence. The police conduct a warrantless search and seizure by taking a copy of and looking at the ISP's customer's private e-mail. Later, the police commit a criminal offence by directing the ISP, now an agent of the state, to send the offending message to the customer. The police follow up the warrantless search with a search under warrant of the customer's home. The warrantless search is unlawful and taints the whole process. The search warrant is invalid, the search unreasonable and the evidence should be excluded.
¶ 53 I deal with, and decline to accept, the suggestion that the police committed an offence (presumably distribution of child pornography) later in these reasons.
¶ 54 The characterization of the taking of the copy of the e-mail as a warrantless search is urged upon me strenuously by the defence. In my view, the facts of the case can not be characterized in this fashion for these reasons. By the time the ISP called the police its employees had already formed a strong belief that the message on the system was child pornography and was illegal. It, as an informant, can pass that belief on to the police. The copied e-mail was not necessary to give the police reasonable and probable grounds. It was not a seizure of evidence, despite the use of this terminology by Detective Sidor. Rather, it was corroboration as to the detail or texture of the informant's tip. Exhibits 1, 2 and 3 in this trial consist of the message copied to Detective Sidor. They were not sourced from Exhibit 39, Mr. Weir's CPU, and they are not the substance of the charge before the court.
¶ 55 However, because the defence strenuously urges that the police seized the e-mail message from the ISP, I wish to explore their rationale and its consequences in this case. The seizure of the e-mail is seen to be such because it is argued that e-mail recipients are entitled to a reasonable expectation of privacy over their e-mail.
DOES E-MAIL CARRY A REASONABLE EXPECTATION OF PRIVACY?
¶ 56 The defence suggests that e-mail carries an expectation of privacy much like the level of privacy accorded to first class mail or a telephone call. Therefore, the police performed an unlawful search while the e-mail was at the ISP. A search warrant was obtained by the police to search the e-mail box of Mr. Christenson (christed) at his ISP, and they should have done the same with Supernet.
¶ 57 In order to explore this argument further, the question of the expectation of privacy needs to be addressed.
¶ 58 I have no Canadian case law making a finding that e-mail carries a reasonable expectation of privacy. Nor do I have opinion surveys demonstrating the opinion of Canadians on the topic.
¶ 59 All of the witnesses who testified on this voir dire indicated that it was their expectation, personally, that their e-mail would remain private. Mr. Hasson and Mr. Murray from Supernet testified it was the ISP's goal to keep the customer's e-mail private, but they acknowledged it was not always possible. Mr. Verheijen testified e-mail customers could expect at least the same level of privacy as telephone users. Mr. Boeske agreed the ISP's goal is to keep e-mail private, but he acknowledged the nature of the technology is such that some entry into the message may be necessary in certain situations. An example of such a situation is "mail bombing". When dealing with the aftermath of a mail bomb the objective is to take the minimum information needed from the customer's e-mail in order to restructure the e-mail box. Sometimes, however, file names have to be looked at. Mr. Boeske summarizes that although e-mail privacy is important, he never thinks of it as guaranteed. He advises e-mail users to not send via e-mail anything they consider very private. Therefore, although e-mail communications are expected to be private, the nature of the technology leaves it vulnerable to exposure. Exposure arises in repair situations.
¶ 60 Mr. Boeske testified that he is aware of government documents which hold out a "pious hope" that e-mail privacy interests can be protected. Mr. Boeske uses the label pious hope because individual governments are largely powerless to implement the objective of privacy in e-mail communications. The difficulty lies in the nature of the technology. ISP's number in the tens to hundreds of thousands. They are located in most countries and on every continent. Because of their geographical diversity, individual governments can do little that is effective to regulate the ISPs used by their citizens. International agreements would be required to make headway on regulation but such agreements between governments are at this stage nonexistent. The nature of any e-mail transmission is that it goes from the sender's computer to the sender's ISP. At that ISP various searches are done by the computer to conduct an electronic route in order to ensure the sender's message gets to the recipient. That route may include a number of Internet nodes before the recipient's ISP is reached. The message can be tampered with and the internal headers modified by any node in the system. Generally, e-mail messages are not viewed by ISPs simply because they are far too numerous to be bothered with and only troublesome messages attract attention. The bottom line, however, is that e-mail messages are easy to invade, and a normal user would be none the wiser if invasion occurred.
¶ 61 The question of the expectation of privacy and e-mail messages has been explored by Megan Connor Berton in her article Home is Where Your Modem Is: An Appropriate Application of Search and Seizure Law to Electronic Mail. Ms. Berton argues that e-mail should carry a similar privacy interest to that of first class mail. She compares e-mail with first class mail and with telephone communication.
¶ 62 Ms. Berton lists the similarities of e-mail to first class mail at p.182. They both support powerful one to one communications, encourage users to express their thoughts to others in print, feature private mailboxes controlled by the person receiving the mail, support delivery of written documents in a timely manner directly to the addressee, allow for large amounts of additional material to be included, can be easily copied and sent to others or saved indefinitely, involve a delay between transmission and reception as well as between reception of the message and any response, support the communication of a message by the sender uninterrupted by the recipient, enhance communication between people who have never met, are relatively cheap and the cost of domestic transfer is not usually affected by the location of the recipient, allow a recipient to know either who a communication is from or where it originated before reading it, wait for the recipient and can be read on the recipient's own time, once sent cannot be retrieved, make bulk mailings and junk mail easy to send to unwanting recipients, with neither can a sender know immediately if a message has received its intended destination, both are sent out in batches, and, last, both can be subject to fraudulent use.
¶ 63 Next Ms. Berton outlines the similarities between e-mail and telephone communication. The primary similarity between the two is technology. Both e-mail and telephone calls travel over the same wires and require little effort on the part of the sender. Both can be transmitted essentially with the stroke of a few keys. There is no need to leave the house. Both may be received more than once a day. Neither requires manpower for delivery. Technology and an infrastructure is required to use both. Without it, messages can neither be sent or received. And last, e-mail can be used for the same type of simultaneous discussion that telephone communications are intended to be.
¶ 64 At p. 185 of her article, Ms. Berton comments on the unique characteristics of e-mail. It is one of the most cost efficient forms of communication available. E-mail address systems allow for anonymity if desired by the sender. The address system allows for automatic reply with little effort. Also, Netiquette, a body of generally accepted rules of behaviour, has been developed for e-mail and Internet communications in general. For example, uppercase letters signify the sender is yelling. Netiquette behaviours imply that replying to e-mail messages is easier than replying to other communications.
¶ 65 Ms. Berton's argument is that e-mail is most similar to first class mail and it deserves protection similar to that now afforded to first class mail. A conclusion in her article, which is based on Fourth Amendment law in the United States, is that until the law catches up with technological developments, the existing law provides a sufficient basis for protecting the privacy of rights of individuals who utilize e-mail. She also concludes that the objective of minimization in the interference of the privacy of individuals should mould the style of vehicle which courts should entertain for allowing interference in e-mail. That vehicle should be modelled after that which is now used to interfere with privacy interests in first class mail.
¶ 66 In Canada, that vehicle would be the search warrant which particularizes what the authorities are looking for. In the telephone call environment, wiretaps collect everything that is said and therefore are a greater invasion of the individual's privacy. In the postal environment, checking every letter is not usually warranted. Rather, the police are required to set out reasonable grounds to believe that a particular package is of interest in relation to a crime being investigated. Ms. Berton argues that permitting searches of e-mail, only after delivery of the mail and with a properly supported search warrant, would eliminate the extended invasion allowed by wiretaps. Not only would the application of the traditional warrant type of search limit the time within which information can be seized, but it would also limit the amount of information that could be seized through the requirement of particularization.
¶ 67 While I see the merit in Ms. Berton's suggestion, my view is that both the search warrant and a form of wiretap lend themselves to the e-mail environment. Both procedures as they now exist require that the police take steps to ensure the right to privacy is not unreasonably infringed.
¶ 68 I am mindful that engaging in this discussion presupposes a finding of a reasonable expectation of privacy in e-mail. The following case supports such a finding.
¶ 69 In United States v. Maxwell 42 M.J. 568 the U.S. Air Force Court of Criminal Appeals made such a finding. Like the case at bar, the server, America Online, notified the FBI that a number of subscribers of American Online were using the service to transmit and receive visual images portraying child pornography. A confirmatory disk was passed by America Online to the FBI. The FBI opened an investigation. They contacted America Online in an effort to ascertain the identities of those involved with the child pornography. America Online advised the FBI a search warrant was needed to obtain e-mail transmissions. A search warrant was obtained. Anticipating a warrant would issue, America Online withdrew the information from their computers before the warrant was executed. On execution of the warrant, America Online turned over to the FBI 39 high density computer disks containing information in excess of that particularized by the warrant. The disks contained e-mail messages and visual transcriptions linked to Colonel Maxwell. Upon learning that Maxwell was a member of the Air Force, the FBI turned the investigation over to Air Force Special Investigations. Armed with this information Special Investigations obtained a warrant authorizing a search of Colonel Maxwell's quarters. Among the items seized during the search was Colonel Maxwell's personal computer. In deciding this case under Fourth Amendment law, the Chief Justice indicated at p. 575 "the underlying issue in a case involving an asserted violation of the Fourth Amendment is whether the person making the claim has a legitimate expectation of privacy in the invaded place." In the discussion that ensues the Chief Justice found:
However, we find appellant definitely maintained an objective expectation of privacy in any e-mail transmissions he made so long as they were stored in the America Online computers. In our view, the appellant clearly had an objective expectation of privacy in those messages stored in computers which he alone could retrieve through the use of his own assigned password. Similarly, he had an objective expectation of privacy with regard to messages he transmitted electronically to other subscribers of the service who also had individually assigned passwords. Unlike transmissions by cordless telephones, or calls made to a telephone with six extensions, or telephone calls which may be answered by anyone at the other end of the line, there was virtually no risk that the appellant's computer transmissions would be received by anyone other than the intended recipients. (p. 576)
¶ 70 On the evidence before me, together with Ms. Berton's article and the finding in Maxwell, I am persuaded that e-mail with the ISP carries a reasonable expectation of privacy. Therefore, judicial pre-authorization (a warrant) will usually be required to search and seize it.
¶ 71 Warrantless searches are permitted under certain circumstances. The admissibility of evidence which emerges from a warrantless search can sometimes depend on the nature of the privacy invaded. Invasion of one's body without warrant (blood) may be seen as more serious than invasion of one's car without warrant. Therefore, I wish to briefly address the nature of e-mail privacy while the e-mail is with the ISP.
¶ 72 Before moving to the e-mail message I will address the cover. The envelope on first class mail shields the contents of the message. The information on the cover carries a lower expectation of privacy than does the message inside.
¶ 73 In the e-mail environment, the headers (hidden and exposed) can be likened to the information on the envelope. The message is directed by its headers. Much repair work to e-mail can be done through headers. Like the outside of the envelope, the headers have a lower expectation of privacy.
¶ 74 The difference between the two types of cover is that in first class mail the cover is respected. In e-mail, the cover is (or was in June of 1996) routinely violated in order to repair the technology. There are two or three levels of violation depending on the type of repair done and excluding a repair done by deleting the message or by enlarging the e-mail box. The size of the attachments may be viewed. The list of attachment names may be viewed. The message itself may be opened which can include looking at the message and the attachments or either. These facts about the technology help me to conclude the e-mail message is unlike first class mail in the level of privacy that it can attract.
¶ 75 Another difference between e-mail and first class mail is that in order to make an e-mail message truly private, one can encrypt it.
¶ 76 The evidence of Mr. Boeske is that encryption, although readily available, is not yet widely used by the general public. However, the debate in the United States over whether there should be publicly regulated bodies for deposit of encryption keys to permit reading of encrypted e-mail, suggests that encrypted mail is, for all practical purposes, unreadable and, therefore, privacy is secured. That encryption is relied on by some e-mail users to ensure privacy, and that it is not yet used widely by the general public underscores the need for legal protections.
¶ 77 In summary, I am satisfied e-mail via the Internet ought to carry a reasonable expectation of privacy. Because of the manner in which the technology is managed and repaired that degree of privacy is less than that of first class mail. Yet the vulnerability of e-mail requires legal procedures which will minimize invasion. I am satisfied that the current Criminal Code and Charter of Rights protections are adequate when applied in the e-mail environment.
SECTION 8 OF THE CHARTER
¶ 78 The facts are as found under the heading "Facts" and in paragraphs 41 and 42 of these reasons.
a) Is the search warrant unlawful?
¶ 79 The defence alleges the search warrant was unlawful. At the heart of this allegation is that until the proclamation of s. 487(2.1) and (2.2), there was no authority either in common law or by statute which laid out a procedure for the search and seizure of data inside computer systems. Further, electronic data is intangible and therefore cannot be seized. Last, since the wording of the warrant was restricted to "things", the data in the form in which it existed at the time of the issuance of the warrant fell outside the four corners of the document.
¶ 80 Has the law only recently been amended to allow for the search and seizure of data inside a computer? My view is that a plain reading of subsections 2.1 and 2.2 of s.487 supports the conclusion that they were added to the warrant section to facilitate on-site data collection. They do not preclude off-site data collection.
¶ 81 While I agree with the defence that s.487, before the addition of subsection 2.1 and 2.2, uses old language (old in the use of the word "things" in the context of technology), I disagree that the use of the old language precludes search and seizure to facilitate an investigation of technologically sophisticated offences.
¶ 82 Next, it is the submission of the defence that electronic data is an intangible much like a bank credit balance as found in Re Banque Royale du Canada v. The Queen (1985), 18 C.C.C. (3d) 98 (PQ C.A.). In my view there is a difference between a credit balance showing sums on deposit in a bank and electronic data on a computer. Having said that, James A. Fontana in his text The Law of Search and Seizure in Canada, (4th Edition) argues as follows:
This presupposes, however, that the electronically stored evidentiary data is subject to seizure in the first place. Under the existing law, such a supposition may not be valid. Section 487 permits the issuance of a search warrant to seize "anything" which "will afford evidence". The focus of section is on "thing". Much of the jurisprudence makes it clear that a search warrant cannot issue for the seizure of intangibles. While documents in a filing cabinet are clearly tangibles, documents stored electronically are not. They may be rendered into tangible form by making a printout or "hard copy", but at the material time, that is, at the time the warrant is issued, they are in an intangible state. Past reviews of the validity of computer searches under power of warrant have not addressed this issue nor the parallel issue: can such a warrant authorize the executing officer to render the data into physical form in order to seize it? This is now answered by s.487(2)(2.1). [emphasis added]
¶ 83 The Crown agrees that s. 487 does not permit the "seizure" of intangibles like computer files.
¶ 84 My view of this argument is that it demonstrates once again how technology is outstripping the law. When I say this, I do not mean to suggest that the existing law is insufficient to deal with an offence such as the one at bar. However, the very fact that s.487 has been amended to allow for the on-site extraction of computer data suggests that data inside computers can be searched and rendered into a form to be seized. Under the new amendments to s. 487, if data inside a computer can be reproduced in the form of "intelligible output", it is seizable.
¶ 85 This demonstrates a shift in what can be seized which is responsive to the peculiarities of the technology. The shift is from seizure of things that are tangible to seizure of output that is intelligible. The definitions of "intangible" and "intelligible" from The Oxford English Dictionary (2d ed.) prepared by J.A. Simpson and E.S.C. Weiner, Clarendon Press, Oxford,1989 follow:
intangible: Not tangible ... incapable of being touched not cognizable by the sense of touch impalpable. ... That cannot be grasped mentally. intelligible: Capable of understanding able to understand intelligent. ... Capable of being understood that may be apprehended by the intellect comprehensible.
¶ 86 The storage of data on a computer's hard disk is taking place at such a minute level that it raises the question of whether an electromagnetic effect on a computer storage disk is in any real sense tangible. Although, it can be sensed with proper tools and interpreted and thereby made intelligible, can it be said in any ordinary sense to be tangible? While this is an interesting question, the esoterics of the debate between whether something is matter or energy or anything in between should not be the basis on which to interpret our criminal law, at least as it relates to the charge before the Court. It makes sense to move on to a more useful definition, such as the one of intelligible output used in subsection 2.1.
¶ 87 To return to the search and seizure at bar, things were seized, the computer and diskettes, and, later, information was extracted. This is consistent with current procedures under s. 487.
¶ 88 The fact that the police were really interested in the data inside the computer does not mean they have seized the wrong things. Under the law as it now exists, the seizure was entirely appropriate. This seizure is not unlike seizure of a blood sample. The police don't want the blood, they want the information the blood can provide. As long as the blood (the thing) has been properly seized (that is, privacy respected) the information it contains can be extracted at a later date.
¶ 89 That current law does not specifically address the products created in the electronic age should not be a reason to fail to prosecute technologically sophisticated offences, particularly when, as here, the law is sufficient.
¶ 90 As the law and the practise of it catches up with technology, I expect we will see stricter requirements made for particularization of the intelligible output sought in a search or seizure of computer files. In a case like the one at bar, the names of the electronic documents attached to the e-mail message may appear in the Information to Obtain and the Warrant itself. It is not surprising, however, where, as here, the police searched for and seized things, that such particularization did not take place.
¶ 91 In summary, my view is that the current method of seizure of "things" is lawful in the context of the seizure at bar and in fact things were seized. Further, that the things seized gave up the information contained in them does not mean the information had to be seized. This is so whether or not the information source was or was not intangible. Although the warrant did not specifically authorize the extraction of the files from the computer, the information sworn in support of the warrant clearly set out that was the intent of the police, and, under the current law, this manner of preparing the documents and proceeding on them does not make the warrant unlawful.
b) Is the search warrant valid?
¶ 92 Next the defence challenges the validity of the search warrant. It alleges full, fair and frank disclosure was not made by the affiant. The points raised by the defence are the following:
i. The statement in paragraph 7 "That the files were not sent by some error, but were in fact expected" was conclusory. The affiant should have disclosed the e-mail message "try this". Because this e-mail message is equivocal, the affiant's conclusory statement is a wilful disregard of the facts. ii. In paragraph 5 the affiant stated that he learned the customer of the ISP "lived at" the address. In fact he was told the customer was "billed at" that address.
iii. The affiant failed to disclose that the ISP obtained the information for the tip by committing an offence under s.184 of the Criminal Code. iv. The affiant led the issuing justice to believe that the ISP had described to him what it viewed in the e-mail attachments. In fact the description came from the affiant's own view of the files.
¶ 93 In addition to the failure to make full, fair and frank disclosure, the defence alleges that the information to obtain the search warrant had no grounds for the belief that the computer sought would be in the location searched.
¶ 94 Further, it is alleged that the search warrant was issued for an anticipated offence.
¶ 95 Last, the defence submits that the affiant relied upon evidence obtained by Charter breach to obtain the search warrant. That is, either the ISP or the police or both conducted warrantless searches.
¶ 96 In argument, the defence raised the failure to particularize the computer files sought as a material non-disclosure.
¶ 97 As to the failure of the affiant to make full, fair and frank disclosure, I wish to first say that in my view Detective Sidor made efforts to be fair and honest.
i. Because the affiant is expected to not make conclusory statements in the information, I find the e-mail message "try this" should have been included before the issuing justice. Its omission, however, was not misleading, was inadvertent, and the affiant's conclusion in paragraph 7 was fair. ii. The reference in paragraph 5 to the address as the residential address rather than the billing address is misleading but I find it was inadvertently labelled as such and it is substantially corrected by the results of the motor vehicle search.
iii. It is not a material non-disclosure that the affiant failed to mention that the ISP and the police obtained information by committing an offence under s.184 of the Criminal Code. In fact, it is my view that an offence was not committed. iv. I agree that the last sentences of paragraph 3 would lead the issuing justice to believe the ISP described the attachments to the e-mail when in fact the affiant was describing his own viewing. However, I find this statement was not materially misleading, and was not made with the intent of misleading the issuing judge. In fact, the images were as described in the information. The attribution of the description to the informant becomes important if the police were of the view they had conducted a warrantless search. They were not of that view. Therefore, their nondisclosure was I find inadvertent and non-material.
¶ 98 My view is that paragraph 5 as amended and paragraph 6 of the Information to Obtain the Search Warrant together with the affiant's belief that the logical place to search for a computer containing pornography was in the privacy of one's home provide reasonable grounds to infer that the computer in question could be found at the customer's home address. It is not, in my view, misleading to fail to mention that e-mail can be remotely accessed.
¶ 99 I am satisfied that the affiant's reference to the request by the customer for repair of the mailbox in paragraph 3, together with the mention of how e-mail boxes work in paragraph 7, and the delay in obtaining the warrant provide reasonable grounds for an inference that the offence had been committed by the date the Information was sworn.
¶ 100 As to the allegation the affiant withheld the knowledge that either the ISP or the police had committed a Charter breach, I am satisfied that at no time did the affiant think such a Charter breach had occurred.
¶ 101 It is understandable why the police did not particularize the computer files sought. They went to seize the computer. In the future, if seizures are focused on data inside computers, warrants may focus on the computer files sought.
¶ 102 The test for the reviewing justice is set out in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at p. 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
¶ 103 My view is that, as amplified, the search warrant continues to provide solid basis for the decision of the authorizing judge. Therefore the search and seizure were judicially pre-authorized, reasonable, and not in violation of s. 8.
¶ 104 A finding of validity does not preclude a consideration under s. 24(2). I defer this until after I consider the following argument of the defence.
c) If a warrantless search was found, is the warrant valid?
¶ 105 As I have said, the defence urges me to characterize the facts as follows. The ISP, a private entity, stumbles on the e-mail message in the course of a normal repair. It looks at the message to confirm it is in fact child pornography. It telephones the police to convey its concern that an offence is being committed and to express its concern that it may have done something wrong. The police conduct a warrantless search by taking a copy of the private e-mail message. The police follow the warrantless search with a search under warrant.
¶ 106 As was expressed in Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at p. 161, "... a warrantless search was prima facie 'unreasonable' ... and a finding that a search was 'unreasonable' ... would require the parties seeking to justify a warrantless search to rebut this presumption of unreasonableness." Therefore, assuming I am wrong on my findings of fact, and the above characterization is correct, then the Crown would carry the burden on the balance of probabilities.
¶ 107 Quoting the Chief Justice from Collins v. The Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.) at p. 14: "A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable".
¶ 108 One way in which a warrantless search is authorized by law is under conditions of urgency. Unlike perimeter search (R. v. Wiley (1993), 84 C.C.C. (3d) 161 (S.C.C.) R. v. Kokesh (1990), 61 C.C.C. (3d) 207 (S.C.C.) R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.)) or a warrantless seizure of a blood sample taken for medical purposes (R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.)) e-mail moves through the system quickly. An urgency argument may be made. However, in this case, the ISP had locked the customer's account preventing access to all of the ISP's services. In other words, the customer was both locked out by the ISP, and even if he could access the service, his e-mail box was overloaded and, therefore, inaccessible. Upon making their own determination that the attachments to the e-mail were child pornography, the police told the ISP to repair the box so that the customer could receive his e-mail. The police thought there was urgency. They were concerned that the customer might think the "jig was up" and remove any offending data off his home computer.
¶ 109 For the purposes of considering this argument (that the warrantless search was unreasonable), I wish to assume that there was not sufficient urgency to allow for a warrantless search of the e-mail box. This assumption would make the search unauthorized in law and therefore in violation of s.8. Further, the defence argues the manner in which the warrantless search took place was offensive. It consisted of opening private mail. For these reasons, the defence would have me find that the warrantless search was unreasonable, in breach of s. 8 and therefore unconstitutional. I come to s. 24(2) below.
¶ 110 I would then need to turn to the question of whether the search warrant is valid after the facts garnered from the warrantless search are excised.
¶ 111 After excising, what would be left? The affiant would have a compelling and credible tip, the informant's strong belief that the message contained attachments that were child pornography, all of the information from the message headers, the customer's billing address, confirmation that a person with a name similar to the e-mail address name registered his residential address at Motor Vehicles at the same location as the billing address, and a reasonable inference that the e-mail was expected by virtue of how e-mail works and the customer's request for repair. In my view, these grounds are reasonable grounds on which the issuing justice could have issued a warrant to search the e-mail box in relation to a distribution offence. The warrant would be therefore valid.
SECTION 24(2) OF THE CHARTER, ASSUMING A WARRANTLESS SEARCH
¶ 112 If the facts were found as the defence wished, the warrant would be based on a warrantless search. Section 24(2) requires the exclusion of the evidence "If it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". Section 24(2) is not a remedy for police misconduct. Rather, it is a remedy the purpose of which "is to prevent having the administration of justice brought into further disrepute by the admission of evidence in the proceedings". (R. v. Collins, supra) To determine whether the evidence should be admitted, the Chief Justice in Collins has set out three factors. They are: the effect of the admission of the evidence on the fairness of the trial, the seriousness of the Charter violation and thus the disrepute that will result from judicial acceptance of evidence obtained through that violation, and whether the system's repute will be better served by the admission or the exclusion of the evidence.
¶ 113 The defence in the case at bar argues that Mr. Weir has been conscripted against himself by virtue of the search warrant. Therefore, the information extracted from the computer is conscriptive evidence. I see no merit in this submission. I am satisfied the evidence is non-conscriptive and its admission would not affect the trial fairness.
¶ 114 Further, I am satisfied that the alleged breach, if it was found (and it is not), is not so serious so as to cause the evidence to be excluded. The informant had reasonable grounds and could have passed them along to the police without sending the copy of the message. The involvement of technology combined with the consensual nature of the offence make other investigatory techniques redundant. Monitoring the e-mail box would be more invasive. I have no evidence to suggest that the police acted in other than good faith. I have already addressed the issue of urgency.
¶ 115 The last factor relates to the effect of excluding the evidence. My view is that excluding the evidence would bring the system of justice into more disrepute than would its inclusion. Although in the overall scheme of things, there are more serious offences than possession of child pornography, one cannot forget that any involvement in child pornography, however minor, promotes the use of children as victims. Therefore, I would find the evidence is admissible. This concludes my analysis of the effect of a finding that the police conducted a warrantless search.
SECTION 24(2) OF THE CHARTER, NO BREACH OF SECTION 8
¶ 116 I have already indicated my finding is that there was no Charter breach, and that the Warrant was valid. In these circumstances, I am satisfied there is no reason under s. 24(2) to exclude the evidence.
SECTION 7 OF THE CHARTER
¶ 117 The defence asks for the search warrant to be quashed or for a stay of proceedings under s. 24(1). Counsel have drawn my attention to the merging of the two procedures in R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.). At p. 38 L'Heureux-Dubé J. says:
For these reasons, I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process. Because the question is not before us, however, I leave for another day any discussion of when such situations, if they indeed exist, may arise. As a general rule, however, there is no utility in maintaining two distinct approaches to abusive conduct. The distinction is one that only lawyers could possibly find significant. More importantly, maintaining this somewhat artificial dichotomy may, over time, create considerably more confusion than it resolves. The principles of fundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process. Although I am willing to concede that the focus of the common law doctrine of abuse of process has traditionally been more on the protection of the integrity of the judicial system whereas the focus of the Charter has traditionally been more on the protection of individual rights, I believe that the overlap between the two has now become so significant that there is no real utility in maintaining two distinct analytic regimes. We should not invite schizophrenia into the law. I therefore propose to set down some guidelines for evaluating, first, whether there has been a violation of the Charter that invokes concerns analogous to those traditionally raised under the doctrine of abuse of process and, second, the circumstances under which the remedy of a judicial stay of proceedings will be "appropriate and just", as required by s. 24(1) of the Charter.
¶ 118 The defence's argument seems to be the following. E-mail is private. The ISP was an agent of the state by virtue of its function as an e-mail carrier. The ISP committed the criminal offence of copying and reading e-mail from a private e-mail box. Even if the ISP was not an agent, it still, as a member of the public, committed an offence by intercepting and seizing the mail, by copying it, and by sending it to the police. Further, the police are a party to the criminal offence by intercepting the mail. Further, as an agent of the state the ISP was conscripted by the police to send the message on to their customer, this act in itself being a further criminal offence, and they did so without regard to their established policy. Further, if the ISP is an agent by function, they have conducted a warrantless search and seizure by receiving a copy of the e-mail. In any event, the police have conducted a warrantless search. The warrantless searches are unlawful and unreasonable. They render invalid the warrant and make the search under warrant unreasonable. The accused has been conscripted against himself making the admission of the evidence at trial unfair. This is the argument of the defence.
¶ 119 I have already dealt with the privacy issue, the question of whether the ISP was an agent of the state, and the alleged warrantless search by the police. I now turn to the question of whether the ISP and the police committed an offence under s. 184. It seems plain to me that the ISP's actions, which were in response to a request for repair, are covered by s. 184(2)(c)(i). Although the request for repair from the customer cannot be taken as consent for the ISP to read his mail, it clearly gives the ISP permission to deal with his private communication in a way that will effect the repair. Further, the subsequent disclosure of the e-mail message to the police seems to me to be plainly covered by s. 193(2)(e). I cannot see on a plain reading of these sections, how it can be said that the ISP committed a criminal offence.
¶ 120 The defence's further suggestion that the police committed the same offence under s. 184 is unfounded.
¶ 121 The defence further suggests that the ISP and the police participated in a further offence by allowing the e-mail box to be repaired so that the customer could receive his message. If I understand this submission, it is that the offence committed is distribution of child pornography. The argument seems to be that the offence of possession couldn't have been committed unless it was facilitated by the ISP and the police. The police initiated the chain of events by directing the ISP to repair the box. The ISP completed the chain by enlarging the box so to allow the message to go through. The enlargement of the e-mail box was not in accordance with policy, although it was one of three methods which could be used to fix an overloaded e-mail box.
¶ 122 In my view, this argument is untenable. Clearly, the customer wished to have his mail. He made a second request for repair. The ISP did nothing illegal in enlarging the mailbox. The police did not coach the ISP to repair the box in any particular way. In fact, the police had no understanding of the technical method for repairing the box. The chain of events was initiated by the customer's requests for repair.
¶ 123 The facts of this case do not come close to the facts of cases such as R. v. Matthiesson ] 9 W.W.R. 439 (AB Q.B.) and R. v. Shirose (1997), 115 C.C.C. (3d) 310 (Ont. C.A.) in which reverse stings were used by the police to entice persons to commit offences.
¶ 124 Last, the defence requests that I look at the totality of the circumstances, to determine this is one of the clearest of cases of an abusive court's process and the breach of the accused's rights under s. 7.
¶ 125 I find that the police acted in good faith, applied existing law to a consensual, technical offence in an appropriate manner, made their best efforts to be truthful, acted on reasonable and probable grounds, and proceeded in an entirely appropriate fashion. In my view, the s. 7 application is groundless.
¶ 126 The application to quash the warrant or stay the proceedings under s. 7 is denied.
THE ACCUSED'S STATEMENT
¶ 127 The police entered the accused's home to conduct the search under the warrant. They were greeted by his wife. While they were in the home doing the search, Mrs. Weir handed the phone to Detective Sidor and said something to the effect of Dale wanting to speak to him. Mr. Weir then said words to the effect that he wanted to cooperate, to get this over with as soon as possible, that he had exercised bad judgment and that two directories on the route directory with the names of "temp" and "dale" were where they could find the images. Detective Sidor asked whether the directories had password protection. Mr. Weir answered "no". Mr. Weir indicated he was concerned about his job and Detective Sidor replied that he should call his supervisor and seek legal advice. There were no threats or promises made by the police during the course of the phone call. The standard police caution and warning were not given.
¶ 128 I am satisfied the statement made by the accused on the telephone was voluntary, was not obtained through a breach of the Charter, and is, therefore, admissible.
REASONS FOR CONVICTION
¶ 129 Attached as Schedule 3 is a copy of Exhibit 46. Exhibit 46 contains a list of computer files copied from Mr. Weir's and from Detective Sidor's computers. Exhibits 1, 2 and 3 are the diskettes containing a copy of the e-mail message sent by the ISP to Detective Sidor. Exhibits 6-12 and 24-26 are the diskettes containing copies of the computer files from Mr. Weir's computer which are alleged to be child pornography. The bolded names of files in Exhibit 6-12 and 24-26, represent files which were part of the original e-mail message sent to Detective Sidor. Not all of the images listed in Schedule 3 were alleged by the Crown to be child pornography. Only a few of those alleged by the Crown to be child pornography were disputed to be such by the defence. I have marked by check mark those files in Schedule 3 which, in my view, come within the definition in s. 163.1. There are 105 jpg and gif files. There are 3 avi files.
¶ 130 The defence argument in relation to guilt or innocence was this. Data in a computer does not come within the definition of child pornography in the Criminal Code. Parliament has said that video comes within the definition of child pornography but it has not said that data in a computer is the same. Therefore, says the defence, Parliament has not caught up with technology and there can be no conviction. An example used by the defence was that of a person carrying drugs and a diskette in their suitcase. On a valid search for drugs, the diskette was discovered. Upon viewing the diskette it was seen to contain child pornography. This cannot be the offence of possession as defined in s. 163.1 of the Code because it lacks the requisite element of visual representation. Further, the defence argues because Mr. Weir was not actually viewing the child pornography on his computer upon his arrest, there is no proof of visual representation and there can be no conviction. Subjective knowledge must be proven beyond a reasonable doubt for there to be possession of child pornography. Without catching Mr. Weir looking at the images, that knowledge is not proven. And last, the defence raises once again that one cannot be in possession of something intangible.
¶ 131 I do not agree with the argument of the defence. A close look at s. 163.1 is required. It defines child pornography as "a photographic, film, video or other visual representation". I take this to mean that child pornography means a photographic representation, a film representation, a video representation, or other visual representation. Clearly, when child pornography is generated by a computer, "other visual representation" will apply. Following the words "other visual representation" are these words: "whether or not it was made by electronic ... means". Therefore, the definition of child pornography in the context of computer crime is electronically generated visual representations.
¶ 132 The nature of electronically generated visual representation is that it is temporary. This is, the necessary part of the definition of child pornography, the visual representation, is temporary. In my view, without proof of possession of visual representation, there can be no offence. On the other hand, proof of possession of the data would not sustain a conviction without proof also of the visual representation. I agree with the defence that the diskette in the suitcase, without more, would not sustain a conviction. Therefore, the data in a computer possessed by the offender is evidence supporting the charge. The visual representation possessed by the offender is the necessary element of the charge. This finding makes the argument in relation to intangibles redundant.
¶ 133 In order to have possession, Mr. Weir must not only have control but he must have knowledge. The evidence is that of the five residents at Mr. Weir's home, the four others knew nothing about the data on the computer. From this I infer that Mr. Weir had exclusive use of the files and therefore control of them.
¶ 134 The e-mail messages that went back and forth between Mr. Weir and Mr. Christenson make it very easy to infer that Mr. Weir knew that he was dealing with child pornography. His statement corroborates this.
¶ 135 The defence argument goes further. Since Mr. Weir was not caught viewing images on the screen, he cannot be found in possession of anything because possession of the data does not satisfy the visual representation element of the offence. There is no question on the evidence, that Mr. Weir was carrying on an exchange of pornographic images of children with Mr. Christenson. This is obvious from the messages exchanged back and forth with the attachments. It is a simple matter to infer from Mr. Weir's half of the exchange that Mr. Weir viewed the images on the screen during the time frame indicted. While this is temporary possession of the visual representations, it fulfils the requirements of the Criminal Code. Therefore, and on all of the evidence, I find Mr. Weir guilty as charged.
P. SMITH J.