R v. Guenter, 2023 BCPC 170
In August and September 2020, Google reported that a Google Drive account was used on August 29, 2020, to upload approximately 200 files of child pornography. As the phone number associated with the account was based in BC, the investigation was forwarded to the BC Integrated Child Exploitation Unit and Ridge Meadows RCMP. Google provided the account information and IP address for the device used to upload the files, which led to the identification of the accused, Mr. Guenter, via the email address and phone number associated with the Google Drive account.
Police executed a search warrant on Mr. Guenter’s residence on February 3, 2021, and seized a number of electronic devices, charging him with possession of child pornography.
Mr. Guenter applied to exclude evidence obtained from the search of his residence and electronic devices, on the basis that the ITO did not set out reasonable and probable grounds that evidence of the offence would be located at the named location.
In this case, the IP address used for the suspected child pornography was connected to a Virtual Private Network (“VPN”) service based in the United States. Accordingly, the application for the search warrant did not include information about the subscriber’s physical address linked to the device. Police identified Mr. Guenter solely based on the username, email address, and phone number associated with the Google Drive Account.
The affiant identified that the email address was associated with Mr. Guenter based on information found in a 2013 New Westminster police file. The phone number was entered in 2007 in a police database and subsequently corroborated by ICBC in October 2020. In November 2020, police drove by Mr. Guenter’s address and observed a vehicle registered to him at his address. The affiant did not explain, however, why he believed the electronic device would be located at the place searched.
For a valid search warrant, the ITO must establish a link between the evidence sought and the named location. In this case, there was no information indicating where the offence was committed, and the ITO relied on an inference that the electronic device used in the offence would be found at the residence. In the absence of information connecting the location of the offence, the ITO was solely based on suspicion.
The Court found that while there was reliable information to believe that an offence had occurred, that Mr. Guenter’s Google Drive account was used in the offence, and that the digital evidence of the offence would exist at the time of the search, the ITO did not establish sufficient grounds to believe that evidence related to the offence would be located at Mr. Guenter’s residence. As the search warrant should not have been issued, the subsequent searches infringed section 8 of the Charter.
In considering the test for exclusion of evidence, the Court stated that while police did not act in bad faith, the search of Mr. Guenter’s home was based on mere suspicion, and a search based on deficient grounds may be considered serious Charter infringing state conduct.
The Crown argued that police did not have the IP address for the device as a VPN service was used, but the Court reasoned that challenges in gathering the necessary grounds for a search warrant must be addressed at the investigative stage and does not lessen the standard for issuing a search warrant or the admission of evidence obtained in violation of the Charter.
As the search was conducted on deficient grounds, and as searches of a person’s home and personal electronic devices are severe infringements of the right to privacy, Judge Campbell found that the “conspicuous absence of any information linking the offence to the location searched”, ultimately militated in favour of exclusion of evidence.
R v. Karapetrov, 2023 ONSC 4354
On the morning of January 24, 2019, the accused, Mr. Karapetrov, found his girlfriend, Ms. Wilfong, unconscious in his apartment and called emergency services. While paramedics rushed her to the hospital, Toronto Police Service officers remained with Mr. Karapetrov and searched his apartment. They noticed indicia of drug trafficking in the kitchen before encountering a locked bathroom with a cabinet which contained five loaded prohibited firearms. Police sealed and guarded the apartment while applying for a warrant. Police demanded proof of identification, which led to the warrantless seizure of Mr. Karapetrov’s car as his identification was inside. Ms. Wilfong unfortunately passed away from a drug overdose later that afternoon.
Police searched the property pursuant to a search warrant the following day, which yielded various quantities of drugs and indicia of drug trafficking in addition to the firearms. Mr. Karapetrov was charged with various firearms and drug-trafficking-related offences.
Mr. Karapetrov applied to exclude all of the evidence seized from his apartment, alleging that he was arbitrarily detained while police conducted an unlawful search of his apartment, in breach of sections 8, 9 and 10 of the Charter.
In considering the test for exclusion of evidence under section 24(2) of the Charter, the Court noted that the whole of police conduct, in this case, was “nothing short of disgraceful”. Specifically, the Court stated that:
- after the paramedics left, police “systematically breached Mr. Karapetrov’s Charter rights over and over again, for a period of hours, and in multiple different ways”. They entered Mr. Karapetrov’s apartment without asking for permission, justifying this by saying they needed to take photographs of the scene in case of a suspicious or sudden death, all before Ms. Wilfong had passed away. As police photographed the scene, they searched through suitcases, cupboards, drawers, as well as the fridge, freezer and stove, to purportedly locate medication for Ms. Wilfong. Police also searched the locked bathroom, knowing Mr. Karapetrov objected to it. The Court rejected the police’s explanation for these searches as a life-saving effort, noting that it “stretches credulity and smacks of bad faith”;
- throughout the time of the search, which lasted two hours, Mr. Karapetrov was arbitrarily detained. He was not advised he was being detained nor was he provided access to counsel, in a time of “intense personal grief and trauma”; and
- the delay of under an hour in contacting Mr. Karapetrov’s counsel and seizing his vehicle prematurely rather than waiting for a warrant was not the “most serious” of breaches, but could not be viewed in isolation.
The Court found that the impacts on the rights of Mr. Karapetrov strongly favoured the exclusion of evidence. In the Court’s words, he “did the right thing” by immediately calling 911 and administering CPR to assist Ms. Wilfong, knowing there were guns in the bathroom and a large quantity of drugs in the residence. Mr. Karapetrov made statements establishing he had control of the apartment and had deliberately locked the bathroom door, all of which were against his interest.
In contrast, police continued to investigate after seeing indicia of trafficking, without advising Mr. Karapetrov of his rights to counsel and to refuse a search of his apartment, and without advising him that he was detained on suspicion of drug trafficking. Various officers noted how distraught Mr. Karapetrov was during the search, but police continued to keep him on the “ruse” that photographing the unit was required before police could leave. After the search was completed, he was taken to the station and strip-searched. Mr. Karapetrov was in police custody for over five hours before he was able to speak to his lawyer.
Without the search of the apartment, which was found unlawful, there was no basis on which the subsequent search warrant could have been issued. The Information to Obtain (“ITO”) also relied on uncompelling and uncorroborated information from Ms. Wilfong’s mother on Mr. Karapetrov’s alleged drug trafficking that was found insufficient to support a search of his apartment and car. The Court also found that there were material omissions in the ITO, as it did not include information regarding the warrantless searches nor the fact that there were no suspicious circumstances regarding Ms. Wilfong’s death, which may have alerted the justice of the peace to the Charter breaches and a refusal to issue the warrant.
On balance, the Court concluded that the seriousness and extent of Charter infringing police conduct and its impacts on the accused’s rights overcame the only factor supporting admission – the sheer magnitude of the evidence – and excluded its admission. As a result, all the charges against Mr. Karapetrov were dismissed.
Conclusion
In both Karapetrov and Guenter, crucial evidence was excluded based on the seriousness of Charter infringing conduct and the impact of those breaches on the accused’s rights. In Guenter, the lack of information connecting the location of the offence to its commission was fatal to the Crown’s case. While there were various other Charter breaches in Karapetrov, the ITO on which the search warrant was based was also deficient. Officers swearing ITOs in support of a search warrant must not only ensure full, frank and fair disclosure but also ensure that all investigative avenues have been taken to link the evidence sought and the named location to insulate the search from Charter scrutiny.
If your require additional information or further assistance, please contact David McKnight and Naomi Krueger.
Subscribe to RSS Feed