Child porn cases are the most emotionally involved court cases as the victims are children. Knowing defenceless children have been victimized by adults that are supposed to take care of the children will make most people sick.
At the same time, the job of the Supreme Court is never easy or it would not (and should not) have reached the Supreme Court. Decisions that are differ by just one vote like the 4-3 decision here (or a 5-4) also exposes the reality and limit of any judicial system. I am not a lawyer/police but I hope this case will guide future lawyers/police to follow the needed steps to make cases against criminals hold up in the judicial system.
Our constitutional laws and criminal laws have to apply equally to everyone, including those that we “know” deserve to be put into jail for a long time. But we will have to let our judicial system works in cases like this one.
[HT CBC News]
An excerpt from “R. v. Morelli, 2010 SCC 8“,
On September 5, 2002, a computer technician arrived unannounced at the accused’s house to install a high‑speed Internet connection the accused had ordered. The accused lived with his wife and two children, aged three and seven, but was alone that day with his younger daughter. When the technician opened the accused’s Web browser, he noticed several links to both adult and child pornography sites in the taskbar’s “favourites” list, including two that were labelled “Lolita Porn” and “Lolita XXX”. He also saw a legal pornographic image, but he could not remember afterwards if it was on the browser’s home page or on the computer desktop. In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and was pointed at the toys and at the child. Unable to finish his work on that day, the technician returned the following morning and noted that everything had been “cleaned up”: the child’s toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user’s chair and the computer hard drive had been “formatted”. In November, concerned with the child’s safety, the technician reported what he had seen to a social worker, who contacted the RCMP. The technician made a statement to Cst. O in January 8, 2003. After the interview, O consulted Cpl. B from the RCMP’s Technological Crime Unit, who he knew had experience investigating crimes involving computers and technological devices. B stated that these types of offenders were habitual and would continue their computer practices with child pornography and that this information would remain inside the hard drive of the computer. O also spoke to Cst. H who, he had been told by a Crown attorney, had experience investigating child exploitation offences. H informed O that these offenders treasured collections on their computers and liked to store them and create backups. O also verified whether an active Internet connection was still being provided to the accused’s residence. He then drafted an information to obtain a search warrant (“ITO”) and, on January 10, a warrant was issued pursuant to s. 487 of the Criminal Code to search the accused’s computer. Pornographic pictures involving children were found on the computer and the accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. At trial, he unsuccessfully challenged the validity of the search warrant under s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge convicted the accused and the majority of the Court of Appeal upheld the conviction.
Held (Deschamps, Charron and Rothstein JJ. dissenting): The appeal should be allowed. The accused’s conviction is quashed and an acquittal is entered.
Per McLachlin C.J. and Binnie, Abella and Fish JJ.: The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1). Merely viewing in a web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a “favourite” or an “icon” on one’s computer. In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under one’s control. It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession it must be shown that the file was knowingly stored and retained through the cache. An ITO seeking a warrant to search for evidence of possession, rather than accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched at the time the warrant is sought. Here, the search and seizure of the accused’s computer infringed his right under s. 8 of the Charter. Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search. The ITO did not allege the distinct and separate offence of accessing child pornography and, stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the “Favourites” menu of a web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two “Lolita” links supports a reasonable inference that the accused browsed a website that contained explicit images of females under the age of 18, but this does not suffice to establish possession.
[Note:]
Constitutional law — Charter of Rights — Search and seizure — Validity of search warrant — Police obtaining warrant to search accused’s computer — Pornographic pictures involving children found and accused convicted of possession of child pornography — Whether search warrant issued on basis of misleading, inaccurate and incomplete information — Whether search of computer breached accused’s rights under s. 8 of Canadian Charter of Rights and Freedoms — If so, whether evidence ought to be excluded pursuant to s. 24(2) of Charter.
Criminal law — Search warrant — Validity — Police obtaining warrant to search accused’s computer — Pornographic pictures involving children found and accused convicted of possession of child pornography — Whether there were reasonable grounds to issue search warrant — Whether search warrant issued on basis of misleading, inaccurate and incomplete information.
Criminal law — Possession of child pornography — Elements of offence — Definition of possession — Whether possession of illegal image in computer means possession of underlying data file — Whether possession can be established even if accused did not download image — Criminal Code, R.S.C. 1985, c. C‑46, ss. 4(3), 163.1(4).
