{"id":447422,"date":"2010-03-19T11:39:20","date_gmt":"2010-03-19T15:39:20","guid":{"rendered":"http:\/\/kempton.wordpress.com\/?p=10519"},"modified":"2010-03-19T11:39:20","modified_gmt":"2010-03-19T15:39:20","slug":"top-court-quashes-child-porn-conviction-in-a-4-3-decision","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/447422","title":{"rendered":"Top court quashes child porn conviction in a 4-3 decision"},"content":{"rendered":"
\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

[HT CBC News<\/a>]<\/p>\n<\/blockquote>\n

An excerpt from “R. v. Morelli, 2010 SCC 8<\/a><\/em><\/strong>“,<\/p>\n

On September\u00a05, 2002, a computer technician arrived unannounced at the accused\u2019s house to install a high\u2011speed Internet connection the accused had ordered.\u00a0 The accused lived with his wife and two children, aged three and seven, but was alone that day with his younger daughter.\u00a0 When the technician opened the accused\u2019s Web browser, he noticed several links to both adult and child pornography sites in the taskbar\u2019s \u201cfavourites\u201d list, including two that were labelled \u201cLolita Porn\u201d and \u201cLolita XXX\u201d.\u00a0 He also saw a legal pornographic image, but he could not remember afterwards if it was on the browser\u2019s home page or on the computer desktop.\u00a0 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.\u00a0 Unable to finish his work on that day, the technician returned the following morning <\/span>and noted that everything had been \u201ccleaned up\u201d:\u00a0 the child\u2019s toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user\u2019s chair and the computer hard drive had been \u201cformatted\u201d.\u00a0 In November, concerned with the child\u2019s safety, the technician reported what he had seen to a social worker, who contacted the RCMP.\u00a0 The technician made a statement to Cst.\u00a0 O in January\u00a08, 2003.\u00a0 After the interview, O consulted Cpl. B from the RCMP\u2019s Technological Crime Unit, who he knew had experience investigating crimes involving computers and technological devices.\u00a0 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.\u00a0 O also spoke to Cst. H who, he had been told by a Crown attorney, had experience investigating child exploitation offences.\u00a0 H informed O\u00a0 that these offenders treasured collections on their computers and liked to store them and create backups.\u00a0 O also verified whether an active Internet connection was still being provided to the accused\u2019s residence.\u00a0 He then drafted an information to obtain a search warrant (\u201cITO\u201d) and, on January 10, a warrant was issued pursuant to s.\u00a0487 of the\u00a0Criminal Code<\/em> to search the accused\u2019s computer.\u00a0 Pornographic pictures involving children were found on the computer and the accused was charged with possession of child pornography contrary to s.\u00a0163.1(4) of the\u00a0Criminal Code<\/em>.\u00a0 At trial, he unsuccessfully challenged the validity of the search warrant under s.\u00a08 of the\u00a0Canadian Charter of Rights and Freedoms.<\/em> The trial judge convicted the accused and the majority of the Court of Appeal upheld the conviction.<\/p>\n

Held<\/em> (Deschamps, Charron and Rothstein\u00a0JJ. dissenting):\u00a0 The appeal should be allowed.\u00a0 The accused\u2019s conviction is quashed and an acquittal is entered.<\/p>\n

Per<\/em> McLachlin\u00a0C.J. and Binnie, Abella and\u00a0Fish<\/strong> JJ.:\u00a0 The ITO is limited to allegations of possession of child pornography contrary to s.\u00a0163.1(4) of the\u00a0Criminal Code<\/em> and does not involve allegations of accessing child pornography pursuant to s.\u00a0163.1(4.1).\u00a0 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.\u00a0 Neither does creating a \u201cfavourite\u201d or an \u201cicon\u201d on one\u2019s 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\u2019s control.\u00a0 It is the underlying data file that is the stable \u201cobject\u201d that can be transferred, stored, and possessed.\u00a0 The automatic caching of a file to the hard drive does not, without more, constitute possession.\u00a0 While the cached file might be in a \u201cplace\u201d 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.\u00a0\u00a0 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.\u00a0 Here, the search and seizure of the accused\u2019s computer infringed his right under s.\u00a08 of the\u00a0Charter<\/em>.\u00a0 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.\u00a0 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 \u201cFavourites\u201d menu of a web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two \u201cLolita\u201d 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.<\/p>\n

[Note:]<\/p>\n

Constitutional law \u2014 Charter of Rights \u2014 Search and seizure \u2014 Validity of search warrant \u2014 Police obtaining warrant to search accused\u2019s computer \u2014\u00a0 Pornographic pictures involving children found and accused convicted of possession of child pornography \u2014 Whether search warrant issued<\/em> on basis of misleading, inaccurate and incomplete information \u2014 Whether search of computer breached accused\u2019s rights under s.\u00a08 of Canadian Charter of Rights and Freedoms \u2014 If so, whether evidence ought to be excluded pursuant to s.\u00a024(2) of Charter<\/em>.<\/p>\n

Criminal law \u2014 Search warrant \u2014 Validity \u2014 Police obtaining warrant to search accused\u2019s computer \u2014 Pornographic pictures involving children found and accused convicted of possession of child pornography \u2014 Whether there were reasonable grounds to issue search warrant \u2014 Whether search warrant issued on basis of misleading, inaccurate and incomplete information.<\/em><\/p>\n

Criminal law \u2014 Possession of child pornography \u2014 Elements of offence \u2014 Definition of possession \u2014 Whether possession of illegal image in computer means possession of underlying data file \u2014 Whether possession can be established even if accused did not download image \u2014 Criminal Code, R.S.C. 1985, c.\u00a0C\u201146, ss.\u00a04(3), 163.1(4).<\/em><\/p>\n

Filed under: Canada<\/a>, Law<\/a> \"\"<\/a> \"\"<\/a> \"\"<\/a> \"\"<\/a> \"\"<\/a> \"\"<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":841,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-447422","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/447422","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/841"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=447422"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/447422\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=447422"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=447422"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=447422"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}