Today, the Ontario Court of Appeal (ONCA) released an interesting decision, R . v. West , 2020 ONCA 473, in which it allowed the appellant’s appeal and excluded evidence related to child pornography charges under section 24(2) of the Canadian Charter . The ONCA also acquitted the appellant on all counts.

The issue in this case where the appellant, Steven West, was convicted of accessing, possession of, and distribution of child pornography, is whether his rights under section 8 of the Charter were infringed and if the evidence against him should be excluded. The police in this case obtained a search warrant to search Mr. West’s residence for several electronic devices and documents that contain the child porn evidence they were suspecting.

Information To Obtain

The appellant argued that the production order in this case should not have been issued as the Information To Obtain (ITO) used to obtain the order was predicated on the wrong legal test (par. 18). The ONCA agreed with that argument and explained the law and the legal test for production orders.

R . v. West , 2020 ONCA 473

As the Court in West indicates at par. 20, the general principals governing the issuance of production orders were recently stated in R. v. Vice Media Canada Inc. , 2017 ONCA 231 as follow :

Production Orders

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. [Emphasis added.]

The Issue With The West Case

The problem in the specific case of West, is that the affiant detective clearly misstated the standard throughout his affidavit and did not have the requisite standard based on which an order could have issued. He stated that he had grounds to “suspect” when the correct standard is grounds to “believe” and despite this clear flaw, the issuing justice authorized the production order (paras. 21-22). The trial judge as well did not catch the error and given this clear error, no deference was owed to the trial judge’s decision (paras 23-24). Thus the ONCA considered afresh whether there was a basis on which the production order could have issued and in its analysis reaches the conclusion that it was an error for the issuing justice to issue the order in this case (pars. 24-25). As a result, the warrant could not have issued and thus the search was unreasonable (par. 28).

The Court then applied the Grant test to decide whether or not the evidence should be excluded and in its analysis it reaches the conclusion that it should and interestingly finds that the police was negligent in failing to apply the correct legal standard in his affidavit (par. 33).