3 for the Reasons of Doyon J.A., with Which Pelletier and Léger JJ.A. Agree

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[1]On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Jean-Pierre Boyer), rendered on July 11, 2008, that acquitted the respondent of charges of possession of child pornography and failure to comply with a condition of a probation order;

[2]After having examined the file, heard the parties, and on the whole deliberated;

[3]For the reasons of Doyon J.A., with which Pelletier and Léger JJ.A. agree:

[4]DISMISSES the appeal.

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[5]The appellant admits that, if the police officers did not have reasonable grounds to believe that the respondent was surfing the Internet at the time of his arrest, said arrest was unlawful. I agree. The trial judge determined that the police officers had no such reasons. He found the arrest to be unlawful and the subsequent search to be unreasonable. I see no error in these findings and deem that the trial judge rightly excluded the evidence obtained by the officers as a result of this search. Let us consider.

BACKGROUND

[6]In light of his decision to exclude the evidence, the trial judge entered two acquittals. The two files have been joined for the appeal because they share the same evidence, judgment, and grounds of appeal. In one case (500-01-0155931-071), the respondent was alleged to have had child pornography in his possession (s. 163.1(4)(a) Cr. C.), whereas in the other (500-01-015940-072), he was charged with failure to comply with a probation order prohibiting him from using the Internet (s. 733.1 (1)(b) Cr. C.).

[7]On September 19, 2007, around 8:04 p.m., a citizen placed a 9-1-1 call fearing that a suspicious individual parked near his home in possession of a laptop computer might be connected to a wireless network to steal personal information. The individual in question was in a red Mitsubishi parked on Berri Street.

[8]At 8:40 p.m., patrol officers France Robitaille and Pascal Bouchard received this information from their dispatcher and made their way to Berri Street. As they approached the scene, around 8:45 p.m., a red Mistubishivehicle drew their attention—it was parked on a diagonal and backed up, bumper to bumper with the car behind it, so as to hide the license plate.

[9]The officers noticed a man in his early twenties (the respondent) in possession of a laptop computer. According to officer Robitaille, the computer was beside the respondent, whereas officer Bouchard believed that the computer was on him. Officer Bouchard, who was driving, said that he saw a blue screen that was divided into two sections resembling the "MSN display windows" for that company’s chat service.

[10]Officer Robitaille approached the respondent's car and observed that he was closing his computer's applications while surreptitiously watching her. The respondent was sweating and seemed nervous.

[11]The police officer asked him what he was doing there. He answered that he was on his way to see a friend in Longueuil and had stopped in order to prepare himself. She asked him to explain his answer and he said that he was looking at investment files on his computer. She asked him where he lived. He answered that he lived on Chateaubriand Street, four streets away from Berri Street. Noticing a digital camera next to him, she questioned him about it. He said that he took pictures of cars in the street. She also questioned him on the peculiar way in which he had parked his car. Surprised by this, he answered that it was possible that his car had backed up by itself. She then asked him for proof of identification and he gave her his driver's licence.

[12]Using the patrol car's on board computer, officer Robitaille checked with the Centre de renseignements policiers du Québec (CRPQ) and discovered that the respondent was on probation following a conviction on charges of making and distributing child pornography and that one of the conditions of that probation prohibited access to the Internet and possession of a firearm. In a separate file, a condition in that probation order prohibited accessing the Internet and being in the presence of minors, except in the company of adults.

[13]The officer informed her partner of this. She returned to the respondent, asked him to step out of his vehicle, and arrested him for breaching probation. The time was approximately 9:10 p.m. The respondent was subjected to a frisk search, officer Robitaille read him his rights, and he was then brought to the patrol car in handcuffs.

[14]The officers then called their supervisor to apprise him of the situation. He went to join them and called an investigator in order to determine how to proceed—should they detain the respondent or release him on the spot? The investigator told them to release him and to seize the computer equipment found in his possession.

[15]The officers then proceeded to search the vehicle and found, amongst other things: in the centre armrest, a pair of binoculars, two knives, latex gloves, and a spark plug around which a string had been wound; in the glove compartment, binoculars, a pair of sunglasses and a roll of toilet paper; in the trunk of the car, an annotated map of the Châteauguay foot trails. Officer Robitaille seized a black leatherette bag, a mobile phone, a keyboard, a laptop computer, a digital camera and a GPS.

[16]During the search, the respondent was detained in the patrol car and was not offered the possibility of contacting a lawyer. Officer Bouchard explained that the respondent did not specifically request one and that even though the respondent had a mobile phone in his possession, the police car did not offer the necessary guarantees of confidentiality.

[17]The police officers did not interview the citizen who called 9-1-1 on the night of the events; said interview only took place on January 17, 2008.

[18]On November 21, 2007, a justice of the peace issued a search warrant authorizing the seizure of the respondent's computer to examine its contents in order to prove that the respondent had accessed the Internet. The warrant included the following order under the terms of execution:

[translation]

Mr. Boudreau-Fontaine, Siméon, will hand over to a police officer of the City of Montreal all passwords and terms required to access the contents of his IBM Think Pad, serial number XXXX, seized in his possession on September 19.

The experts from the SPVM's technological crimes division will examine the computer with the passwords and terms received in order to establish that the computer was connected to the Internet by Mr. Boudreau-Fontaine, thus breaching the conditions of his probation (not to access the Internet).

[19]The parties have admitted the following: On November 26, 2007, Detective Sargeant Cloutier scheduled an appointment to meet with the respondent at the police station. In compliance with the search warrant, the respondent went and handed the password giving access to his computer over to Cloutier. Also, the officer had received information from a technological crimes specialist that the information in the respondent's computer could be retrieved without the password by seeking out the services of a specialized firm.

[20]Detective Sargeant Campeau's testimony was also admitted. According to this witness, the technological crimes division's expert report confirmed that the respondent's computer was indeed connected to the Internet on September 19, 2007, between 7:37 p.m. and 8:50 p.m. and that he visited the MSN website at 8:45 p.m. Campeau arrested the respondent on November 30, 2007. During the interview, the respondent admitted to being in therapy for the last year because of sexual offences and that he was the only one to use the seized computer. He refused to say anything about the events that took place on September 19, 2007, however.

TRIAL JUDGMENT

[21]At the outset of the trial, the respondent brought a motion to exclude the seized evidence by invoking a breach of his constitutional rights under sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms (the "Charter").

[22]After summarizing the evidence, the trial judge considered the principles that must be applied when an accused seeks the exclusion of evidence under subsection 24(2) of the Charter. He outlined the tests developed in R. v. Collins, [1987] 1 S.C.R. 265, and R. v. Stillman, [1997] 1 S.C.R. 607, regarding the concept of unreasonable search and the rules governing the exclusion of evidence resulting from such a search.

[23]In the present case, the search having been performed without prior judicial authorization, it is presumed to be unreasonable and it is up to the prosecution to rebut the presumption on a balance of probabilities. Setting aside the actual contents discovered on the computer, the judge analyzed the adequacy of the grounds raised by the police officers. He rejected officer Bouchard's version alleging that he saw the respondent visiting the MSN website, as his partner, who was closer to the accused and had a better view of vehicle's interior, was unable to determine whether he was indeed surfing the Internet. He stated that the officers' subsequent intervention was coloured by the result of the verifications made with the CRPQ. If officer Bouchard had indeed seen the respondent surfing the Internet, he could immediately have proceeded with his arrest for data theft, which he did not do, which suggests a complete lack of reasonable grounds on which to proceed with the arrest. He concluded that the computer's search and seizure were unreasonable within the meaning of section 8 of the Charter.

[24]Regarding whether, under subsection 24(2) of the Charter,using this evidence would likely bring the administration of justice into disrepute, he noted that the respondent was compelled to hand over his computer password to Detective Sargeant Cloutier and, therefore, was conscripted into providing evidence against himself. For this reason, the computer is not mere physical evidence. He also excluded the evidence collected from the respondent's vehicle and the out-of-court statement made on November 30, 2007. In light of these conclusions, he did not decide the breach of section 10(b) of the Charter. An acquittal was entered.

GROUNDS OF APPEAL

[25]The appellant raises several grounds of appeal, but they all concern two issues that are more conveniently worded as follows:

1 – Did the trial judge erroneously and unreasonably find that the police officers lacked reasonable grounds to arrest the respondent, and thus, that the evidence was collected under conditions that breached section 8 of the Charter?

2 – Did the trial judge err in law by excluding the evidence pursuant to subsection 24(2) of the Charter?

[26]It should be noted that the appellant never invoked the rules concerning investigative detention, whether at trial or in his grounds of appeal; therefore, I will limit my analysis to those rules concerning arrest within the meaning of section 495 Cr. C.

THE REASONABLENESS OF THE SEARCH AND SEIZURE

[27]Because the car was searched without a warrant, it was up to the appellant to establish, on a balance of probabilities, that the search in question was not unreasonable. 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 (R. v. Collins, supra at para. 23). To be upheld under this common law power, the search must have been incidental to a lawful arrest, and the manner in which the search was carried out must have been reasonable (R. v. Stillman, supra at para. 27). Finally, for an arrest to be lawful, arresting officers must have reasonable and probable grounds to believe that a criminal act has been committed and their grounds must be justifiable from an objective point of view (R. v. Storrey, [1990] 1 S.C.R. 241 at para. 17; section 495 C. Cr.).

[28]The determinative issue here concerns the adequacy of the grounds invoked by the police officers. Has the prosecution established, on a balance of probabilities, that the police officers had sufficient information to justify the respondent's arrest for breach of probation regarding access to the Internet? The police officers' grounds must be considered without taking into account the content subsequently discovered on the computer, as this is information that was not available at the time of the arrest (R. v. Garofoli, [1990] 2 S.C.R. 1421; R.v.Kokesch, [1990] 3 S.C.R. 3; R. v. Bennett (1996), 49 C.R. (4th) 206 (QCCA).

[29]The trial judge gathered from the evidence that the only ground for arrest resided in the 9-1-1 call from a citizen that was only met four months later. He did not accept the testimony of officer Bouchard, who stated to have seen a blue screen he thought to be the MSN chat system. The judge expressed himself as follows:

[translation]

What the police officers saw at the scene was insufficient for them to determine that the accused was surfing the Internet, notwithstanding Officer Bouchard's assertion that he saw a blue screen, and that he thought he recognized the MSN chat system.

Let us not lose sight of the fact that the accused's vehicle was parked on the western side of Berri, a one-way street going south, and that Officer Bouchard was driving the police cruiser. Consequently, he was not on the same side of the street as the accused. His partner, who was immediately next to the accused, had a better view of the vehicle and was unable to state that the accused was on the Internet. She mentioned applications. This is consistent with the response that the accused gave her when she questioned him as to what he was doing there, concerning an investment program.

It is only after consulting the CRPQ that the officers questioned their approach. They then decided to arrest the accused for breach of probation regarding a prohibition to access the Internet.

If we are to believe Officer Bouchard's claim that the accused was on MSN, then, why did they not immediately proceed with his arrest for online identity theft? Rather, they waited for the CRPQ results because there was a complete lack of reasonable grounds to proceed with the accused's arrest prior to that.

... The officers did not have reasonable grounds to arrest the accused. ...

[30]In short, the judge did not believe Officer Bouchard when he stated that he had seen the respondent surfing the Internet, and specifically the MSN network. The testimony of his partner, who was better placed to observe the scene and who saw applications instead (which do not necessarily require Internet access) appeared more plausible to him, especially as it coincided with the respondent's explanation. Furthermore, according to the judge, the fact that the officers did not immediately arrest the respondent for online identity theft illustrated a lack of reasonable grounds to believe that he was indeed surfing the Internet. Finally, he considered that the discovery, through the CRPQ, of the probation order prohibiting access to the Internet [translation] "coloured" the police action. Consequently, only the 9-1-1 call remained, which in itself could not constitute reasonable grounds to believe that the respondent was accessing the Internet. It should be recalled that the telephone call was far from specific regarding the use of the Internet and was placed by a person unknown to the police officers at that time.

[31]In short, at the time of the arrest, the police officers did not have reasonable grounds to believe that the respondent was connected to the Internet, or even that he was on probation. Consequently, the trial judge's finding that the police officers did not have reasonable grounds to arrest the respondent was not unreasonable. His conclusion is supported by the evidence and is not based on a palpable and overriding error of fact.

[32]In truth, the officers cannot be criticized for wanting to strengthen their grounds prior to arrest. That is not what the judge did, however. Rather, he noted conduct on their parts that confirmed his finding. Also, and in any event, that part of his judgment is incidental at best.

[33]It is a well established fact that the subsequent discovery of evidence cannot serve to support a finding that there were reasonable grounds at the time of the police action. Nonetheless, at the hearing, counsel for the appellant invited us to set aside the judgment on the ground that the trial judge erroneously refused to take into account the results of the investigation establishing that, in fact, the respondent was surfing the Internet. According to counsel, the issue is not whether there were therefore reasonable grounds for the arrest, but whether Officer Bouchard was credible and his version reliable in light of the subsequent discovery of evidence that confirmed his testimony. I find that I cannot accept this argument.

[34]First, I find that the distinction proposed by counsel does not hold. In both cases, it is the subsequent discovery of evidence that improves the prosecution's evidence. In both cases, the evidence becomes more reliable because it is confirmed by subsequently uncovered evidence. In both cases, the grounds invoked by the officers become reasonable only because they turned out to be accurate, either because the officer was correct or because he was lucky. It seems to me that the underlying reason for prohibiting the assessment of the results of a subsequent investigation, that is, the protection of citizens from police action without reasonable grounds at the moment, is fully applicable in both situations.