2018 BCSC 581 R. v. Munton

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: R. v. Munton,
2018 BCSC 581
Date: 20180410
Docket: 51134-2
Registry: Vernon
Regina
v.
William Murray Phelps Munton
Before: The Honourable Madam Justice Hyslop
Voir Dire Ruling re the Admissibility of the Seizure of Items Pursuant to a

Warrant
Counsel for the Crown: J.S. Guild
Counsel for the Applicant: J. van der Walle
Place and Date of Hearing: Vernon, B.C.

September 25 & 27, 2017
Place and Date of Judgment: Vernon, B.C.
April 10, 2018
Contents
INTRODUCTION
ISSUES
BACKGROUND
PRINCIPLES OF LAW GUIDING THE OBTAINING OF AN ITO
PREPARATION OF THE ITO
WARRANTS
WARRANT #1
Rubbermaid Containers and Fire Starter Bricks
Applicant’s Position
The Crown’s Position
Analysis – Rubbermaid Containers and Fire Starter
The Drone
Analysis
Computers and Electronic Storage Devices
The Applicant’s Position
Crown’s Position
Analysis
WARRANT #2
Cell Phones
Crown’s Position
Analysis
Text Message Communications
Crown’s Position
Analysis
HP Computer
Crown’s Position
Analysis
SECTION 24 INQUIRY
The Law – Section 24(2) Inquiry
Seriousness of the Infringing State Conduct
Impact of the Breach on Charter-protected Interests of the Accused
Society’s Interest in the Adjudication of the Case on its Merits
Balancing the Grant Factors
Analysis
Crown’s Position
Impact of the Breaches – Charter-protected Interests
Balancing the Section 24(2) Factors
Analysis
INTRODUCTION
[1] William Murray Phelps Munton (the “applicant”), pursuant to a Notice of Application dated
July 24, 2017, challenged the validity of two search warrants issued on June 3, 2016.
[2] After a voir dire, I found the two warrants issued, pursuant to s. 487.1 of the Criminal Code,
R.S.C., 1985, c. C-46 [Code], violated the applicant’s s. 8 Canadian Charter of Rights and
Freedoms [Charter] rights. I excluded the evidence seized pursuant to s. 24(2) of the Charter.
[3] I postponed giving my reasons. These are my reasons.
[4] As a result of these warrants, the police found images on the applicant’s computer and a CD
the Crown alleges contains pornography. As a result, the applicant was charged in an Indictment
dated November 4, 2016 with two counts of making child pornography contrary to s. 163.1(2) of the
Code and one count of possessing child pornography pursuant to s. 163.1(4) of the Code.
[5] With the consent of the Crown leave was granted by the Court to the applicant to cross-
examine Constable Cory Hoard, the affiant in the Information to Obtain (“ITO”).
ISSUES
1. Did the ITO establish reasonable grounds to believe evidence of the arsons would be
located at 2215 33rd Street, Vernon, British Columbia, in a computer, a drone, cell phones
and other electronic devices of the applicant?
2. Was there a breach of Mr. Munton’s s. 8 Charter right?
3. If a breach is found, should the evidence be excluded pursuant to s. 24(2) of the Charter?
BACKGROUND
[6] There were a series of fires that broke out in the City of Vernon believed to be arson. A
significant investigation was undertaken by the Royal Canadian Mounted Police (“police”) to
determine who was responsible for the fires. The fires took place between March 30 and November
20, 2014. The last arson was November 20, 2014. Two suspects were arrested; the applicant and
Jordan Holcroft.
[7] Constable Hoard applied for the two search warrants based on an ITO prepared by him.
Constable Hoard believes four separate offences were committed in the months of June, July,
October and November 2014.
PRINCIPLES OF LAW GUIDING THE OBTAINING OF AN ITO
[8] Both the applicant and Crown agree on the law and the legal standard of review for facial
and sub-facial validity of an ITO. I will refer to those legal principles based on the case law referred
to me by both the Crown and applicant.
[9] The police must, under oath, provide reasonable and probable grounds that an offence has
been committed and that there is evidence to be found at the place or places of the search. This is
described by Mr. Justice LaForest in R. v. Colarusso, [1994] 1 S.C.R. 20, 1994 CanLII 134 (SCC):
…And the minimum requirement for such authorization is that the judicial officer be satisfied
that there are reasonable and probable grounds that an offence has been committed and
that the search will afford evidence of that offence. This high threshold, together with the
general approach set forth in Hunter, at p. 155, that the function of the Charter "is to provide
. . . for the unremitting protection of individual rights and liberties" sought to be protected, is
the proper perspective from which the situation in the present case must be assessed.
[10] The judicial review of a search warrant starts with the presumption of its validity. The onus is
on the party who seeks to set aside the warrant to demonstrate its invalidity: R. v. Boussoulas,
2014 ONSC 5542 at para. 5.
[11] The review as to the sufficiency of the ITO is set out by Mr. Justice Fish in R. v. Morelli, 2010
SCC 8 at para. 40:
…however, "the test is whether there was reliable evidence that might reasonably be
believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC
65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the
reviewing court would itself have issued the warrant, but whether there was sufficient
credible and reliable evidence to permit a justice of the peace to find reasonable and
probable grounds to believe that an offence had been committed and that evidence of that
offence would be found at the specified time and place.
[12] The standard of proof is reasonable probability or reasonable belief and it is not beyond a
reasonable doubt or the need to prove a prima facie case: R. v. Whitaker, 2008 BCCA 174 at para.
40, citing R. v. Debot, [1989] 2 S.C.R. 1140 (at 1166).
[13] In determining whether reasonable grounds exist requires consideration of the “totality of the
circumstances.” In assessing the information it must:
…be examined as a whole and not one piece of evidence at a time, because each piece of
evidence colours other pieces of evidence and a fuller picture emerges by considering all of
the evidence together…
Whitaker at para. 41.
[14] In assessing the facts relied upon to establish reasonable grounds, it “is made on a practical,
non-technical and common sense basis”: Whitaker at para. 42.
[15] Overarching all of these principles, an affiant, on an ex parte application, must and has a
duty to make full disclosure of all material facts. This includes those material facts that militate
against granting the warrant. In other words, all material facts, whether favourable or not: Morelli at
para. 58 Mr. Justice Fish stated:
[58] In failing to provide these details, the informant failed to respect his obligation as a
police officer to make full and frank disclosure to the justice. When seeking an ex parte
authorization such as a search warrant, a police officer -- indeed, any informant -- must be
particularly careful not to "pick and choose" among the relevant facts in order to achieve the
desired outcome. The informant's obligation is to present all material facts, favourable or
not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant
details, but not by material non-disclosure. This means that an attesting officer must avoid
incomplete recitations of known facts, taking care not to invite an inference that would not
be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
[16] In R. v. Ling, 2009 BCCA 70, the Appeal Court stated:

[38] An obligation to make full and frank disclosure of all material facts, whether pro or
con the issuance of the warrant, best guards against the evil of misleading the authorizing
justice by omission.
[17] For a fact to be material, it must be sufficient that it may or might affect the outcome of the
application: R. v. Valiquette, 2010 BCSC 1423. The Crown agrees with the applicant’s summary of
the law as to the duty of the police to make full, fair and frank disclosure.
[18] Amplification evidence is additional evidence presented at the voir dire to correct minor
errors in the ITO. It is not a means for the police to present additional evidence. It is not a means to
retroactively authorize a search that was not supported by reasonable and probable grounds:
Morelli at para. 42.
[19] In his submissions, the applicant concedes that although:

[t]he police had a firm foundation to believe the applicant was the culprit in the arsons, they
had no basis to believe any evidence would still exist of those offences in the home of the
applicant at the time they sought their warrants in June of 2016.
[20] The applicant argues it is not enough to provide evidence the accused committed the
offence, but the ITO must establish a connection between the offences and the place to be
searched, but also there is a likelihood the evidence is currently in the place to be searched: R. v.
Turcotte, 1987 CanLll 984 (SK CA). Turcotte provides a useful list of the requirements for issuing a
search warrant:
(1) that an offence has been committed or is suspected of being committed;

(2) that the location of the search is a building, receptacle or place;
(3) that the item sought will provide evidence of the commission of the offence or that the
possession thereof is an offence of itself;
(4) that the grounds stated are current so as to lead credence to the reasonable and
probable grounds;
(5) that there is a nexus between the various considerations set out.
[21] The applicant’s position is the police must act on current information. The applicant relies on
case law where courts have considered the currency of information and its continued existence.
The applicant refers to R. v. Colby, 1999 CanLll 13073 (SK QB); R. v. Liu, 2014 BCCA 166; R. v.
Chen, 2007 ONCJ 177; and R. v. Adansi, 2008 ONCJ 144.
[22] In Colby, a search warrant was issued based on the belief of finding cannabis
marihuana/resin and drug paraphernalia in the dwelling houses, various outbuildings, vehicles,
machinery and the surrounding bush of the accused’s property. The accused argued the items
seized should not be admitted into evidence as it breached his s. 8 Charter right. The Court found
the information the police received must be current so as to provide credibility to the reasonable
and probable grounds on which they relied. The Court found at the time of issuing the warrant there
was no evidence the accused was in possession of the offence-related items. The most recent
information was one and a half to two months prior to the issuance of the warrant. The Court found
that the information, when considered as a whole, was not sufficient to justify the issuance of a
search warrant as on the date the warrant was issued, the judge could not conclude that a drug
was growing in or on the premises, or drug paraphernalia would be found there.
[23] In Liu, a warrant was issued for drugs in the residence of the accuseds. The accuseds were
observed visiting another residence multiple times and for short periods of time. The information
received did not relate to the accuseds’ residence. The Appeal Court found there was a gap in the
evidence as there was no information connecting drugs in the accuseds’ residence and that it was
a mere “suspicion”. There was nothing in the evidence that linked the accuseds as having drugs in
their residence for purposes of trafficking. The Appeal Court found that the trial judge erred by
ruling the ITO established grounds to search the accuseds’ residence despite strong information
establishing the accuseds’ involvement in drug trafficking.
[24] In Chen, the accused was charged under the Income Tax Act and the Excise Act. Business
and personal records were seized from two locations. In particular, two journals belonging to Ms.
Chen were taken from a residence. At issue was whether the journals would be at a certain
address. The Court found the information the police relied upon was two years old. The Court, in
finding that Ms. Chen’s s. 8 Charter rights were breached, stated:
[17] …However, given the dated nature of the information relied upon by the affiant,
which was over two years old, the real issue is whether there were reasonable grounds to
believe that the documents would still be at this address. The presence of items or
documents at a place to be searched requires more than mere speculation before a warrant
can be issued. … "The test for a search warrant is, of course, a credibly based probability,
not a credibly based possibility."
[18] In determining whether reasonable grounds exist to search a location, the currency
or freshness of the evidence is important. Numerous courts have held that an Information to
Obtain a search warrant must contain information that is recent enough to satisfy the
issuing justice that it is probable that the things sought will still be at the location, and not
that it is merely possible that they are still there: …
…
[21] … Simply put, too much time had passed between the offences under investigation
and the obtaining of the warrants to permit, without more, any conclusion respecting the
location of the documents related to those or related transactions.
[25] In Adansi, the evidence sought to be located was an unrecovered handgun used in a
kidnapping. In the ITO, the officer stated that the accused may have transferred it to where he
resided. There was no evidence to support this. The Court found:
[51] …In any event, for the officer to say that a gun might still be at the defendant's
apartment or car after this significant passage of time is equally consistent with a suspect
getting rid of such an incriminating piece of evidence. The officer should not be able to
convince the issuing Justice that some 60 days later, a gun might still be in the defendant's
apartment or car. This is speculative at best. The information in support is clearly stale.
…
[71] ...Stale information only gives rise to a mere suspicion and not a reasonable belief,
especially when the items to be obtained in a search are easily concealed and moved.
Accordingly, probable cause must be found to exist at the time the warrant issues, and the
facts in support of the warrant must be so close to the time of the issue of the warrant as to
justify a finding of probable cause at that time. … Instead, the staleness of the information
must be determined on the facts and circumstances of each case. In Allen, the Court found
that handguns and rifles are the type of property that a person reasonably could be
expected to keep for at least a period of a month and a half.
[72] … delays of more than four weeks are generally considered insufficient to
demonstrate present probable cause. Longer delays are justified only where there is
evidence of an activity continuing over a long period of time or the nature of the activity is
such as to justify the inference that it will continue until the time of the search. The Court
further held that where the facts known to an officer do not create a close question for any
objectively reasonable and well-trained officer on the issue of staleness, the officer's
mistaken reliance on the warrant cannot be excused under the good faith exception. The
question of staleness turns on the facts of each particular case. If circumstances would
justify a person of ordinary prudence to conclude that an activity had continued to the
present time, then the passage of time will not render the information stale.
[26] The Crown puts the applicant’s argument into perspective relying on R. v. Ballendine, 2011
BCCA 221 at para. 54:
[54] Merely because information is “dated” does not mean it is “stale”. While the length of
time that has passed is to be taken into account in a reasonable-grounds determination, it
is but one factor. As Judge Moylan stated in Andresen v. State, 331 A. 2d 78 at 106 (Md.
Ct. Spec. App. 1975), aff’d 427 U.S. 463 (1976):
The ultimate criterion in determining the degree of evaporation of probable
cause, however, is not case law but reason. The likelihood that the evidence
sought is still in place is a function not simply of watch and calendar but of
variables that do not punch a clock: ...
See also: R. v. Wonitowy, 2010 SKQB 346, 358 Sask. R. 202 at para. 37 (warrant for child
pornography based on seven-month-old information upheld).
[27] The Crown responds by citing Madam Justice Deschamps’ dissenting reasons in Morelli at
para. 173, when the justice stated that child pornography was similar to collectables such as DVDs,
CDs, photographs and paintings, quoting R. v. Neveu, 2005 NSPC 51, “Collectable items are
distinctly different than items which are consumable or acquired for quick resale”.
PREPARATION OF THE ITO
[28] On June 1, 2016, Corporal Jeffery took a warned statement from Mr. Holcroft. In that
statement, Mr. Holcroft denied his involvement in the arsons of 2014. He stated that at the
applicant’s request he went to the applicant’s residence to pick up the applicant’s computer so that
he could fix it.
[29] On June 2, 2016, Corporal Jeffery took a warned statement from Mr. Holcroft. In that
statement, Mr. Holcroft admitted his involvement with the arsons, though initially denying it,
admitted that he was with the applicant when they picked up containers, fire starters and gasoline
used to start the fires. Mr. Holcroft described the arsons that he attended with the applicant. He
stated that he was never alone and that the applicant was always with him when they started fires.
Mr. Holcroft, in his statement, stated that he was told by the applicant that if he was ever arrested,
“get to that computer and get it outta the house”.
[30] As Constable Hoard was preparing the ITO, Corporal Jeffery was taking the warned
statement from Mr. Holcroft. Constable Hoard was communicating with Constable Parish, who was
monitoring Mr. Holcroft’s statement by video. She was making running notes of Mr. Holcroft’s
statement. Constable Hoard consulted those notes and met with Constable Parish for the purposes
of drafting the ITO. Constable Hoard did not hear the statement of Mr. Holcroft, nor have a
transcript of it. Constable Hoard’s explanation for not ordering transcripts of Mr. Holcroft’s statement
is that the applicant would have been kept from his home for a longer period of time.
[31] At paragraph 187 of the ITO, Constable Hoard summarizes the warned statement that Mr.
Holcroft gave Corporal Jeffery. This information is based on the information provided to Constable
Hoard by Constable Parish, either verbally or through her running notes.
WARRANTS
WARRANT #1
[32] I will refer to the warrant entered as exhibit 3 at this hearing as Warrant #1. The Crown refers
to it as the “House Warrant”. This warrant permitted the police to search the applicant’s home
located at 2215 33rd Street, in Vernon, British Columbia, and seize the following items:
i. Rubbermaid MixerMate 3092 container;
ii. Zip brand or other fire starting bricks;
iii. Drone/unmanned aerial vehicle;
iv. Computers, electronic storage devices and external devices capable of analyzing,
creating, displaying, converting, storing or transmitting computer data;
v. Computer data such as electronic mail, digital video, digital images and
computerized data such as internal history will afford evidence of access and control
of the electronic devices;
vi. Passwords which will aid in the forensic examination of electronic devices;
vii. Electronic storage devices including hard drives, removable disks, CD’s, DVD’s,
Blu-ray’s, thumb drives, memory sticks and any other media which is capable of
storing computer data.
Rubbermaid Containers and Fire Starter Bricks
[33] The applicant concedes the ITO “establishes a firm foundation to believe that these items
were used in the arsons” [Rubbermaid containers and fire starter bricks].
[34] The applicant argues the most critical fact that brings into question the issuing of the warrant
is whether there was evidence of the continued existence of the Rubbermaid containers and fire
starter bricks in the applicant’s residence at the time Warrant #1 was issued. The applicant points
out the last arson was November 2014, the applicant moved in September 2015, and Warrant #1
was issued in June 2016. This period of time is 19 months. The applicant argues an inference
would have to be drawn that the applicant moved all the items with him when he changed, not only
residences, but he had them after the last fire.
[35] The applicant argues the critical fact is, whether at the time of issuing the warrant, was there
evidence of the existence of these items in the applicant’s residence? To believe the Rubbermaid
containers and fire starters would be in the applicant’s home defies logic as they were destroyed in
the fire and some of the remnants of those items are in the possession of the police. The applicant
argues any containers that still existed were not used in the fires. The applicant further argues that
it is ludicrous to think that the applicant would have gone back to the scenes of the fires, grabbed
burned containers or starter bricks, taken them to his apartment and then moved them to his new
residence. The applicant further argues if the police had found many Rubbermaid containers in the
applicant’s residence, this would suggest that the applicant was not the person who started the
fires as they were not used in the fires.
[36] The applicant states it is speculative to expect the containers and fire starters to be in the
applicant’s residence 19 months after the last fire, contrary to the police theory of the applicant’s
pattern of behaviour, which was to purchase containers and fire starters and set fires within a short
period of time.
[37] The applicant argues the affiant’s purpose, at paragraph 212(a)(ii) of the ITO, was to
determine how many containers were missing compared to the number of Rubbermaid containers
the police knew were purchased as a result of their investigation. The applicant argues that this is
the search for the absence of something and is a search for an intangible object which is not
permitted under s. 487.1 of the Code.
[38] The applicant states the purpose of s. 487 of the Code is described by Chief Justice McRuer
in Re The Bell Telephone Company of Canada, 89 C.C.C. 196:
[6] As I view it, the object and purpose of these sections is to assist the administration
of justice by enabling the constable or other properly designated person to go upon the
premises indicated for the purpose of procuring things that will in some degree afford
evidence of the commission of an alleged crime. It is not necessary that the thing in itself
should be evidence of the crime, but it must be something, taken either by itself or in
relation to other things, that could be reasonably believed to be evidence of the commission
of the crime.
[39] The applicant argues the seizure of the Rubbermaid containers would not provide any
degree of evidence as to an alleged crime, even with the substantial information the police already
had. That substantial information is the applicant bought Rubbermaid containers and an accelerant
and, on the same day, or within a day or two, committed an arson. Further, the police were able to
determine how the applicant is alleged to have started the fires by observing the remnants of both
the Rubbermaid containers and the accelerant and its packaging. This is clearly set out in
paragraph 27 of the ITO.
[40] The applicant argues, the two Rubbermaid containers in the applicant’s residence, 19
months after the last fire, afforded no evidence of the arson offences. All it did is to confirm what the
applicant told police, which was he had two Rubbermaid containers and used them as they were
intended. Similarly, as with the Rubbermaid containers, the applicant used the starter bricks in the
fire and they would not be evidence of anything. If, as the police believed, they were used to ignite
fires, they would have been destroyed, or partially destroyed, and would not be present in the
residence. As argued by the applicant, the fire starter bricks are a common household item used for
the ignition of camp fires and certain barbecues. When they are used, they are destroyed.
[41] The Crown argues the changing of the applicant’s residence from the time of the last fire to
the time of the warrant is irrelevant. The basis of the police belief is the admission by the applicant
that he currently had two juice containers in his house, the same kind of Rubbermaid containers
identified from a picture shown to him by the police, as were used in the arson. The Crown argues,
it is acknowledged by the applicant the police had evidence of the purchase of Rubbermaid
containers, evidence as to how the fires were started with the Rubbermaid containers and linking
them to the arsons. In addition, the remains of the Rubbermaid containers at one of the four fires
had the applicant’s fingerprint on it. As pointed out by the Crown, none of this is denied by the
applicant.
[42] The Crown argues one of the Rubbermaid containers was purchased in April of 2015 and,
since he had one container in his house, a reasonable inference is the applicant moved it with him
when he purchased his home in September of 2015. The Crown seeks to make further inferences
which are, the applicant moved other items from the time of the arsons to his apartment. The
Crown argues that the knowledge and possession of the Rubbermaid containers in the past
“supports other evidence showing he had bought them during the time frame of the offences.”
[43] The Crown argues that even if this is not a reasonable inference, it is irrelevant. The Crown
argues that the warrant could have issued “on the basis that searching for the Containers currently
in his residence was a search for relevant materials rationally connected to the potential offences
under investigation, the parties involved [Munton and Holcroft] and Munton’s potential culpability”.
[44] The Crown acknowledges that the applicant is correct that looking for the containers used in
the arsons makes no sense; arguing search and seizure is not limited to direct evidence.
[45] The Crown argues, as a result of the police investigation on April 27, 2015, this was the last
recorded time the applicant purchased two containers. Given the police investigative record, it
shows the applicant had at times four containers.
[46] The Crown argues that paragraph 212(a) of the ITO does not only state that the Rubbermaid
containers existed, but how many the applicant had, which would support the police evidence. The
Crown argues, in paragraph 212(a)(ii) of the ITO, the police were seeking how many containers
were in the applicant’s home which was supported by the police purchase history and the number
of containers the applicant said he had in his home.
[47] In response to the applicant’s claim that the police were seeking an intangible, the Crown
argues that the police did not have to believe the applicant’s statement when he said he had two.
The police were seeking evidence that the two containers actually existed so as to be in accord
with their record of purchases by the applicant.
[48] With respect to the fire starter material, the Crown argues that the applicant makes the same
error as with the containers by referencing only “the direct evidentiary value of the firestarter
actually used in the arsons.” The Crown argues the evidence is not that limited.
[49] Again, the Crown, using the same investigatory records of the police as to purchasing the
fire starter by the applicant, states there would be in the applicant’s possession, fire starter on
November 20, 2014. Further, the Crown argues a person would not remove the fire starter cubes
from their separate packages and have them laying about as this would be a fire hazard. The
Crown argues it is a reasonable inference that the applicant kept the remaining fire starter cubes
and their packages and had them in his house just as he did with the two containers.
[50] The Crown argues that both the containers and the fire starter cubes, together with their
packaging, are of evidentiary value:
23. …If found, they would assist in proof of knowledge and possession – a partially
used 32 pack would be evidence of some prior use of the 32 pack, inferentially to
start fires. They would support other evidence found by police investigating the
arsons, especially given the brand and its relative uniqueness [as revealed by the
purchase records and police investigation – Paragraphs 126-132 ITO]; and they
would support Holcroft’s statements implicating Munton in the arsons as being the
ringleader/instigator who made the Incendiary Devices out of the Containers,
gasoline and firestarter cubes.
24. …So long as one reasonable possibility was that the Containers or ZIP cubes and
packaging could be in the Residence, the House Warrant is valid. …
Analysis – Rubbermaid Containers and Fire Starter
[51] The clear language of paragraph 9 of the ITO was that the containers and fire starter would
provide evidence of the arsons. This statement is made 19 months after the last fire and after the
applicant had changed his residence from an apartment to a house.
[52] The only evidence as to containers located in the applicant’s home was a result of a warned
statement given by the applicant on June 1, 2016 to Constable Bell. During that statement, when
shown a picture of a container like the one used in the fires, the applicant told Constable Bell he
had two of the containers in his house like the one in the picture, which he used for juice. He also
stated he had purchased a couple; one was lost boating.
[53] There was no partially burned juice container or evidence of an incendiary device in the
home using the juice container and the fire starters. Nor was there any evidence on which to base
reasonable and probable grounds that the containers and fire starters would be modified as
Constable Hoard stated in his cross-examination:
Q So would you agree with me that one of the reasons you wanted to get into the
house to search for Rubbermaids is that you wanted to compare how many he had
in the house to how many he had bought, because if he did not have them in his
residence it would have been evidence he had used them in the arsons, correct?
A That’s correct, but I also believe any of the Rubbermaid containers in his house
would be evidence and that we were also interested in any, I guess, form, or were
they modified, or anything like that to do with the Rubbermaid jug and the Zip was
going to be interesting to us in evidence for our investigation.
There was nothing in the ITO stating the police expected to find an incendiary device made up with
the juice container and fire starter.
[54] I reject the Crown’s argument that the applicant’s change of residence is irrelevant. It is
relevant because there is a 19-month period where the police provide no direct or circumstantial
evidence to suggest that the Rubbermaid containers or brick fire starter as used in the arsons, were
located in the applicant’s apartment or his house after the fires. Having a Rubbermaid container
and brick fire starters is not evidence of the arsons – they are just that – juice containers and brick
fire starter.
[55] The police cannot fill in this large gap in time (19 months) by pointing to the applicant’s
admission that he has two Rubbermaid containers like the one identified from a picture by him and
found in his house, along with brick fire starter, as evidence of the arsons. Further, there was no
evidence that incendiary devices were kept in either the applicant’s apartment or residence during
the period of the arsons or after the arsons.
[56] The applicant argues the most critical fact that brings into question the issuing of the warrant
is whether there is evidence of the existence of these items in the applicant’s residence at the time
Warrant #1 was issued. The applicant points out the last arson was November 2014; the applicant
moved in September 2015, and Warrant #1 was issued in June 2016. This period of time is 19
months. An inference, based on some evidence, would have to be drawn that the applicant moved
all the items with him when he changed, not only residences, but he had them after the last fire.
[57] As a result of the police investigation, the Crown’s evidence strongly supported the
applicant’s culpability in the arsons. The last containers and fire starters were burned up in the fires
and, on one occasion, the police had partial remnants of those items. At the time of issuing Warrant
#1, there was simply no evidence that the containers and the fire starter were or were ever in the
applicant’s home and would provide evidence of the arsons as stated in the ITO.
[58] It comes down to these considerations: where these items seen by anyone, when were they
seen, the nature of the items and whether they are easily moved, or whether the items themselves
changed in nature.
[59] The applicant argues the affiant was trying to find out how many containers were missing
and not used in the fire compared to the number purchased. The applicant alleges that this is an
intangible which is not permitted pursuant to s. 487.1(5) of the Code. Constable Hoard admitted to
this in his cross-examination as described above. In support of the applicant’s position, the
applicant cites James A. Fontana, the author of The Law of Search and Seizure in Canada, 8th Ed.
at p. 83, where he states:
A search warrant may not issue for intangibles. Intangibles cannot satisfy the requirement
as set out in s. 487 of the Code “that there are reasonable grounds to believe that there is
in a building, receptacle, or place (a) anything on or in respect of which … “(emphasis
added). “Anything” is repeated in all subsections.
[60] The police already had a good idea of the number of containers used in the arsons based on
their investigation, which would lead them to calculate those containers not accounted for. I agree
with the applicant’s submission that s. 487 of the Code does not allow a search for intangibles.
[61] The ITO lacks evidence that the fire starter and the containers have been in the continuous
possession of the applicant since the last fire and through his residential move up to the time of
seeking the warrant or at any time during this period or before this period. Just because the
applicant had containers in the past, when he was starting fires, does not support that he had the
containers currently at the time of issuing the warrant. During this 19-month period there are no
further arsons or any evidence of continued offences, or plans to continue setting fires.
[62] I conclude the ITO filed in support of Warrant #1 did not disclose a basis for issuing it for the
seizure of the containers and fire starter, nor was there a reasonable probability the Rubbermaid
container and fire starter would provide evidence of the four arsons. I conclude that the ITO did not
establish a credibly-based probability to believe that the Rubbermaid containers the police thought
had been used in the arsons would have been in the applicant’s new residence 19 months after the
offences ended.
The Drone
[63] Warrant #1 permitted the police to enter into the applicant’s residence and seize a drone –
an unmanned aerial vehicle.
[64] The applicant alleges that the drone did not take videos or pictures of the fire, which is
contrary to the police theory as to how the applicant and Mr. Holcroft were committing the offences.
The applicant argues that the ITO omits material information violating the duty of full and frank
disclosure as it relates to the drone. It is not disputed the applicant took noteworthy photographs of
local interest with his drone and submitted them to the news media on the Internet.
[65] The Crown also alleges that the applicant admitted to flying his drone in the area of the last
arson, when the evidence suggests that the applicant was acting alone at this fire. The Crown
points out that as the drone has a camera, it can transmit images to the applicant’s cellphone,
which could have been backed up by a computer or other storage device. If the data was erased,
the police could retrieve it.
[66] The Crown argues because the applicant took photographs with his drone of newsworthy
events and submitted them to the news media, and as the fires were newsworthy events, the
applicant must have watched them and taken photographs with his drone for media purposes.
[67] The Crown argues that the applicant, using the drone in the area of the last fire, is consistent
with “scouting”. The Crown argues what the area looked like prior to the fire, is evidentiary value to
compare the area both before and after the fire.
Analysis
[68] Mr. Holcroft, in his statement to Corporal Jeffery, implicated himself and the applicant in the
arsons. He was uncertain in his statement of June 2, 2016, whether the applicant obtained the
drone in 2014 or 2015. This is obviously a material fact as, had the applicant acquired the drone in
2015, this would be after the last fire and this would be the end of the matter. This is a material fact
for the consideration of the judicial justice.
[69] The Crown argues that the statement made by Mr. Holcroft that photographs were not taken
of the fires is not a statement of certainty but is perhaps a lack of memory on the part of Mr.
Holcroft, since the last arson was 19 months old. The Crown does not disclose the full response of
Mr. Holcroft in answering Corporal Jeffery’s questions. Corporal Jeffery pressed Mr. Holcroft, who
then became firm in his answers, stating:
HOLCROFT: I don’t think we ever took pictures of it.
JEFFERY: No…
HOLCROFT: No.
JEFFERY: …like you’re sittin there you never…
HOLCROFT: No.
JEFFERY: …snap, never used his cell phone to take pictures or anything like that?
HOLCROFT: No, no.
JEFFERY: No?
HOLCROFT: No.
JEFFERY: Ok.
[70] Mr. Holcroft was certain that the drone did not take pictures of the arsons. Corporal Jeffery
introduced the topic of the drone when discussing the fire that destroyed Mr. Holcroft’s stepfather’s
boat. Corporal Jeffery wanted to know whether the drone could have flown over something at the
marina where the boat was stored. This led to these questions posed by Corporal Jeffery and
answered by Mr. Holcroft:
HOLCROFT: I mean … yeah a few of em yeah. But nothing that has that sort of capability.
Like you can’t attach a hook to it or anything.
JEFFERY: Okay so who who’s drone have you… do you have a drone?
HOLCROFT: Will’s. Yeah Will’s got one.
JEFFERY: Will’s got one?
HOLCROFT: Yeah.
JEFFERY: Okay so…
HOLCROFT: He got it uh last year or something.
JEFFERY: Okay alright. Um how often does he use that?
HOLCROFT: Not much more cause it doesn’t pair up with his phone. Like the Bluetooth on
its messed up from being dropped so many times.
[71] Later in the statement, Corporal Jeffery asks:

JEFFERY: …and when’s the first time he had the drone like aw
HOLCROFT: About a year and a half maybe. It was the summer of twenty fourteen (2014)
or fifteen (15) but we never used it in anything like that.
JEFFERY: No. K, wha, what would you use it to take pictures of?
HOLCROFT: Ju, take pictures.
JEFFERY: Yeah.
[72] Mr. Holcroft’s denial is a material fact that should not have been omitted in the ITO. It should
have been disclosed to the judicial justice to consider.
[73] Mr. Holcroft described how they set the fires and how they chose the sites for the fire, which
was spontaneous and random. In his statement, when questioned by Corporal Jeffery, he stated:
JEFFERY: Okay. So really the way things would go you guys drive around looking for a
potential place to burn. Is that…
HOLCROFT: No we wouldn’t just drive around and say oh lets go searching for shit. It
would just kind of pop up while we were while we were out having coffee that was
our thing right like that was the way we’d end the day. We’d go have a coffee, drive
around and then it escalated into oh look that can burn. Lets go do it.
This undermines the Crown’s theory that when committing the arsons, Mr. Holcroft and the
applicant would have arranged to launch the drone and take pictures of the fires.
[74] The Crown acknowledges that nowhere in the ITO is there specific evidence that the drone
was used to take pictures of the fires. It asks that inferences be drawn because of the drone’s
capabilities to take photographs. The Crown acknowledges the denial that pictures were not taken
of the fires and the uncertainty of Mr. Holcroft’s statement perhaps should have been included in
the ITO. (I found that Mr. Holcroft was certain).
[75] In the ITO, it states that the applicant in his warned statement told Constable Bell, though he
was not at the last fire, he had flown his drone in that area where the last fire took place. He
explained to Constable Bell that the drone had a camera and that it could send back video to his
phone via WiFi and he could watch the video directly from his cell phone.
[76] Constable Hoard stated in the ITO that the applicant took photographs with his drone to
display on Facebook and other news media. Finally, he stated the applicant used his drone in 2015
at a baseball tournament that Constable Hoard attended. Constable Hoard heard the applicant
comment that the drone relayed pictures back to his cell phone.
[77] The fact the applicant at one time used the drone in the area of the last arson does not
assist in the Crown’s claim that the applicant took pictures of the fires with the drone. There is no
date when this is alleged to have occurred. There is no inference that connects the drone in filming
the last arson. It merely states that the applicant knows the area where the last arson took place as
he flew his drone in that area.
[78] The evidence in the ITO that the applicant used Facebook, online media, attended a
baseball festival and took photographs with his drone in the area of the last fire are all separate
events having no dates as to when they took place, except the baseball tournament which is after
the last fire. In setting out these events in paragraphs 212(c)(i-iv) of the ITO, which are
unconnected to each other, Constable Hoard attempted to create a suspicion that the drone took
pictures of the arsons, which is not supported by reasonable and probable grounds.
[79] The Crown was asking the judicial justice to conclude the following:
Taking all of the ITO in totality, using common sense and a practical approach of a
reasonable person with the experience and training of the affiant, it is reasonable to
conclude that:
- Munton took some photographs of some of the fires, or at least one of the scenes where
fires occurred with his drone;
- Data would have been transferred to and stored in his cell phone;
- The cell phone would have been backed up to a computer or other data storage device;
- even if data had been deleted it could be retrieved by police; and
- there was compelling evidence of Munton’s participation in the last fire and acting alone;
[80] The evidence of Mr. Holcroft that pictures were not taken using the cell phone or the drone;
the lack of planning in choosing sites for the fire; the lack of dates the applicant used his drone for
the media or at the last scene of the fire undermines the police theory described above. These are
material facts that should have been included in the ITO for the judicial justice to consider in
determining whether to issue the warrant.
Computers and Electronic Storage Devices
The Applicant’s Position

[81] The applicant argues that “it is complete speculation to believe that any evidence of the stale
dated offences would be found on the computers”.
[82] The applicant points out the police had information as to how the arsons were carried out.
None of it related to cell phones, cameras or computers. Mr. Holcroft denied taking pictures of the
fire with his cell phone and denies that the applicant took pictures of the fires with his phone.
[83] The applicant argues that material omissions as to the evidence about committing the
arsons undermine any inference that digital evidence such as photographs or videos of the arsons
would be on computers and electronic storage devices in the applicant’s residence.
[84] Constable Hoard omitted in the ITO, Mr. Holcroft’s statement to Corporal Jeffery that neither
he nor the applicant took pictures of the fires. This undermines the police theory that there are
photographs or videos of the arsons in computers located in the residence, which could only be
transferred from something like a cell phone. This, the applicant argues, is a material omission that
the judicial justice should have been apprised.
Crown’s Position
[85] The Crown’s position is the ITO addresses the affiant’s belief that not only can photographs
be stored but other:
…data is backed up to various storage media [including CD’s and DVD’s] and cell phones
are backed up when connected to computers, often automatically. That back up includes
ALL of the data – text messages, GPS information, photographs, everything. So it is
reasonable to conclude that data from a camera, cell phone or a computer would be
backed up to and found on other data storage devices. [Crown’s submissions.]
[86] The Crown relies on this proposition:

It is reasonable to infer that people keep most digital photographs that are taken and cell
phones are backed up to other data storage devices, including computers [see R. v.
Dadmand, 2016 BCSC 764, …at paras. 54, 56-60, 68-74].
Analysis
[87] There must be some evidence, based on reasonable and probable grounds, that the
applicant transferred evidence of the arsons under investigation from other electronic devices to his
computer.
[88] Constable Hoard omitted in the ITO the evidence that photographs and videos were not
taken of the fires by the applicant and Mr. Holcroft using their cell phones and the applicant’s drone.
In order for these images to be stored, they would have had to be transferred from something like a
cell phone. This is a material fact that may or might have influenced the outcome of the application
before the judicial justice for the warrant.
[89] As the applicant points out in Morelli, the police attempted to bridge the gap in the evidence
as to why a person would keep images in their computer of illegal pornography for a long period of
time (future viewing). In the case at bar, there is no evidence in the ITO to suggest the applicant
kept images of the arsons. There is no evidence to support that photographs and images were
taken of the fires. This undermines the police theory that images would be stored in the computers
in digital devices.
[90] I agree with this statement of the applicant that it is “nothing but speculation that computers
would contain an internet browsing history from nineteen months ago, and that somehow that could
be used as evidence of the offences.”
[91] In Dadmand, Mr. Dadmand was charged with sexual assault of a number of complainants. A
warrant was issued for the search of document templates resembling modelling contracts
electronically stored, videos, photographs and correspondence electronically stored and computers
and other electronic information, cellular telephones and other electronic devices containing videos,
photographs, contract information and correspondence. Mr. Dadmand challenged the validity of the
warrant.
[92] Sergeant Row, the affiant of the ITO, provided evidence to the court as to the ability of
electronic devices to transfer images to other electronic devices. Further, if that data was erased,
the police had the capability of restoring some of that information.
[93] However, it was not just the evidence of Sergeant Row that was in the ITO. In Dadmand, the
ITO provided evidence that three of the five complainants saw a form of modelling contract that had
been modified. There was some evidence that the accused edited them with the use of a template.
Five complainants were all involved in one way or another with the use of a printed modelling
contract and that the accused represented to the complainants that he was conducting auditions for
modelling contracts or modelling opportunities.
[94] Sergeant Row provided the court with evidence that document editing is performed by
computers and “…that data stored on devices such as iPhones or iPads may be backed up on
computers”: Dadmand at para. 54.
[95] In addition, Mr. Dadmand had an active Internet account which provided evidence of a
computer or other electronic devices which would be located at his residence. All of this was
sufficient for Pearlman J. to conclude that the Justice of the Peace could reasonably infer that
computers and other electronic devices would be found at the accused’s residence.
[96] In coming to this conclusion, Pearlman J., at para. 58, quoted Mr. Justice Dawson in R. v.
Ahmad, [2009] O.J. No. 6164, as follows:
… What was required to be shown was that there were reasonable grounds
that there was probably a computer or related items in the applicant's
residence that had either been used in, or contained information about, the
offences under investigation.
[97] Mr. Justice Pearlman concluded:

[60] … the issuing justice could have drawn reasonable inferences that a computer was
probably located at Mr. Dadmand's residence and that it and other electronic information
storage devices were probably utilized to edit and store modelling contracts and to store
photos, videos, and correspondence related to the offences alleged in the ITO.
[98] Mr. Justice Pearlman noted that the oldest complaint went back to March 2012 and the most
recent complaint to six months prior to the issuance of the warrant. Sergeant Row provided
evidence to the court that when people take photos or videos, it is done for the purpose of retaining
them. This was sufficient for the Justice of the Peace to draw a reasonable inference that Mr.
Dadmand likely retained the devices and evidence of the complaints as outlined in the ITO would
probably be found on some of the devices and, if deleted, could be located by the police searching
those devices. Further, given the period of time that the complainants came forward, Sergeant Row
expressed the belief that there may be other complainants who were hesitant in coming forward
and evidence of their complaints might be found. This, Pearlman J. found to be beyond
speculation.
[99] In the case at bar, there is no evidence upon which inferences can be drawn from the ITO
that photographs or images of the arsons were taken. Further, there is no evidence that before,
during the 19 months, or after the last fire that anyone saw any images of the fires.
[100] Although the Crown argues that in paragraphs 3-6, 19 and 21, the ITO discloses that
Constable Hoard’s belief about data storage and browsing confirms “data is backed up to various
storage media [including CD’s and DVD’s] and cell phones are backed up when connected to
computers, often automatically.” All of this may very well be true but none of this information about
computers is connected with evidence as to the arsons committed.
[101] In Dadmand, there was evidence of the complainants that Sergeant Row connected to
technical abilities of computers and other electronic devices. The evidence from Constable Hoard is
not connected to the offences under investigation. It assumes that because the applicant and Mr.
Holcroft each had a cell phone, the applicant had a drone and a computer, and because these
devices have the capability to take and store images, the applicant did so.
[102] The affiant has assumed because the applicant had a cell phone and a drone, that he took
pictures of the fires. In making this assumption, the affiant concludes the applicant would have
transferred images from the drone or a cell phone, or both, to computers and other electronic
storage devices. The problem with this theory is the evidence that Mr. Holcroft denied photograph
images were taken by his cell phone, the applicant’s cell phone or by the drone and stated how he
and the applicant went about picking places to commit the arsons.
[103] These assumptions made by the police are undermined by Mr. Holcroft’s statement and the
lack of any evidence that these events took place. The ITO does not establish a credibly-based
probability that the applicant took photographs or images of the fires, transferred them to this
computer or other electronic devices and stored them for 19 months after the arsons.
WARRANT #2
[104] I will refer to the warrant entered as exhibit 4 as Warrant #2. Warrant #2 permitted the police
to search the applicant and Mr. Holcroft’s cell phones, the SanDisk 4.0GB memory card (“SanDisk”)
and the HP Pavilion 8600 series computer (“HP”). Both Warrant #1 and Warrant #2 were issued on
June 3, 2016. Though the Crown made an argument about the seizure of the SanDisk, the
applicant provided no argument about it or responded to the Crown’s argument. As a result, I need
not address its seizure.
Cell Phones
[105] The applicant argues “many of the temporal or “currency” problems pointed out with respect
to the warrant for the house and computers inside the house are equally as applicable to this
second warrant.” That same argument can be made as to the cell phones as was made relating to
the HP. The applicant argues that the “problems are even more acute in relation to the cell phone.”
[106] The applicant argues how unlikely it would be that incriminating evidence would still exist 19
months after the last fire, and even more unlikely that incriminating evidence would be transferred
to a new cell phone. This inference is unreasonable given the lack of information contained in the
ITO.
[107] The applicant argues that cell phones are ubiquitous items that are being bought and sold,
exchanged for new phones and lost in all manner of ways. The applicant argues if it is believed that
the photos would be found of the arsons in the cell phones, it would have to be believed that the
applicant took photos of the arsons with his phone. It would also need to be assumed that the
applicant had the same phone at the time of the fires as he had at the time of his arrest or, if the
applicant could have obtained a new cell phone, then he would have transferred the incriminating
evidence of the arsons to his new phone. The applicant points out Mr. Holcroft was on his third
phone at the time of his statement, which the applicant argues, demonstrates how quickly people
change cell phones. The applicant argues that this should have been brought to the attention of the
judicial justice that Mr. Holcroft was on his third phone since the fires (a period of 19 months) and
that the omission of this material fact may have affected the issuance of the warrant by the judicial
justice for the applicant and Mr. Holcroft’s cell phones.
Crown’s Position
[108] The Crown argues a reasonable conclusion is that people are likely to keep their cell
phones:
…given the cost of cell phones and the problems, time and costs associated with
transferring data and ‘contact’ information from one phone to another, is that they tend to be
kept rather discarded…
[109] The Crown argues the fact that Mr. Holcroft was on his third phone is not a material fact. The
Crown points to the evidence that the applicant and Mr. Holcroft communicated with each other
prior to Mr. Holcroft picking up the HP, so as to hide it from the police.
[110] The Crown argues the applicant’s concerns are responded to in paragraphs 214(h) and 214
(i) of the ITO:
h. I am also aware that an owner of a cellular telephone will often have many pictures
on their phone.
…
i. The user information and phone numbers contained on these cellular telephones
will further confirm to police who owned the cellular telephones and identify witnesses that
have not been interviewed;
[111] The Crown states that the above-described paragraphs of the ITO addresses the applicant’s
concern that there is no assumption that the applicant had a particular cell phone at the time of the
arson. By searching the phone, the Crown argues it would help determine:
…who did possess or own it – possibly pointing to Munton’s innocence if the evidence
showed it belonged to someone else at the time. That is still evidence pointing to a potential
culprit.
Analysis
[112] The judicial justice, in order to have issued the warrant for the cell phones, would have to
believe there was evidence of photographs of the arsons and were taken with the applicant’s cell
phone. There is evidence from Mr. Holcroft, which I have found to be a material fact, that no
photographs were taken by him or the applicant of the arsons. This material omission may have
caused the judicial justice to issue or not issue the warrant for the cell phones.
[113] The following questions were posed to Mr. Holcroft and he gave the following answers:
JEFFERY: No? Ok. So the cell phone you got now is the one you used, used back then,
right?
HOLCROFT: No I’ve gone through two different ones since then.
JEFFERY: Oh really …
HOLCROFT: Yeah
[114] Mr. Holcroft was on his third phone at the time of his arrest and this should have been
disclosed to the judicial justice. It would have to be assumed that Mr. Holcroft would have
transferred the images of the arsons from phone to phone. Nor can it be assumed that the
applicant had the same phone at the time of his arrest.
[115] The Crown’s excuse is that by searching the cell phone, they would determine who owned
the cell phone, which may lead to the applicant’s innocence as to having committed the arsons.
This is ludicrous in light of the extensive investigation the police conducted, the fingerprint of the
applicant found on a partially burnt incendiary device at one of the arson sites, and finally, Mr.
Holcroft’s statement of June 2, 2016 which supports the police investigation of the applicant’s
involvement in the arson, along with Mr. Holcroft.
[116] The police knew that the phone they seized from Mr. Holcroft belonged to him. This is
apparent when Mr. Holcroft gave Corporal Jeffery the password to his cell phone. This exchange of
questions and answers as between Corporal Jeffery and Mr. Holcroft are as follows:
JEFFERY: (INAUDIBLE) Um, well the phone you got now, (INAUDIBLE) what kind of
phone is it?
HOLCROFT: iPhone 5
JEFFERY: K. And you got a password on it?
HOLCROFT: Hm hm
JEFFERY: What’s your password for it?
HOLCROFT: Hm. Why do you guys wanna know?
JEFFERY: Well like, there’s going to be a warrant. They’re going (INAUDIBLE)
HOLCROFT: Ok
JEFFERY: …on your (INAUDIBLE)
HOLCROFT: Then for sure, yeah, two thousand (2,000)
JEFFERY: Two thousand (2,000)?
HOLCROFT: Hm hm
JEFFERY: Ok
HOLCROFT: There’s should, like nothin on there. I don’t, like that’s fine.
JEFFERY: Ok. So just two zero zero zero (2000) and that’s it?
HOLCROFT: Hm
JEFFERY: K. Like because of the arrest (INAUDIBLE) arrested they (INAUDIBLE) it’s
the investigative team I don’t know…
HOLCROFT: For sure
JEFFERY: …um but either one of two things. They get a warrant…
HOLCROFT: Hm hm
JEFFERY: …or it’s um I don’t know how they’re dealing with it but either way it’s like
when there’s a locked phone…
HOLCROFT: Hm hm
JEFFERY: …A Judge gives us aw access to to search a phone…
HOLCROFT: Right
JEFFERY: … and it’s locked, you gotta send it away. There’s a little bit of a delay…
HOLCROFT: Right yeah…
JEFFERY: …in getting it aw…
HOLCROFT: …Yeah no worries…
JEFFERY: …Yeah
HOLCROFT: …just go and do it. It’s two thousand (2,000)
JEFFERY: Good. And you know probably what’ll happen is it’ll expediate it and then
you’ll just get your phone back…
HOLCROFT: For sure
JEFFERY: …quicker I would imagine (INAUDIBLE)
HOLCROFT: I would love that, yeah
JEFFERY: Anything aw, anything on the picture, or anything on the aw phone that’s um
you know that is embarrassing or anything like that?
HOLCROFT: Yeah, yeah, there’s gonna be um aw girls, like pictures of girls or um I think
there’s a picture of me or two on there, so
JEFFERY: Ok, well if it’s not relevant, it’s not going to be out there right…
HOLCROFT: For sure
JEFFERY: …it’s irrelevant to what we’re investigating
HOLCROFT: No nothing like that.
[117] This suggests that Mr. Holcroft had no concern as to what would be found on his cell phone if
the police searched it.
[118] I conclude the material facts that should have been put before the judicial justice were Mr.
Holcroft’s statement that neither he nor the applicant took pictures of the fire with their cell phones;
Mr. Holcroft being on his third cell phone since the fire and finally, Mr. Holcroft willingly giving up his
password to his cell phone to the police during his statement of June 2, 2016. These omissions
may have affected the judicial justice’s decision whether to issue a warrant for the cell phones or
not.
Text Message Communications
[119] Once again, the applicant argues there are material omissions in the ITO relating to the
affiant’s belief the cell phones Mr. Holcroft and the applicant had at the time of their arrest had text
messages between Mr. Holcroft and the applicant about the fires.
[120] On June 2, 2016, Mr. Holcroft, in response to the following questions posed by Corporal
Jeffery, gave the following answers:
JEFFERY: So what did what did Will tell you about if you ever get stopped by the police.
If you ever get…
HOLCROFT: Nothing like that.
JEFFERY: What no what I mean obviously you guys talked about what we’re gonna
say. What what’d you what did he tell you?
HOLCROFT: Actually we never covered that.
JEFFERY: No?
HOLCROFT: No.
JEFFERY: Okay. Alright. Why not?
HOLCROFT: I don’t know it just like never really came to mind.
…
JEFFERY: So how many fires did Will start after you would uh after you stopped?
HOLCROFT: I don’t know we didn’t talk about it.
JEFFERY: No.
HOLCROFT: I figured it was better just leave it.
[121] The applicant argues this undermines inference that text message conversations would be
on the cell phones discussing the arsons 19 months after the last fire and that the applicant and Mr.
Holcroft were still using the same phone during the time or after the arsons stopped when they
likely would have been communicating about the fires.
[122] The applicant argues there has to be reasonable grounds to believe there was evidence of
digital images in the cell phone currently seized and was the same phone the applicant used 19
months ago; the incriminating data was present for 19 months or transferred the incriminating
evidence to new cell phones. The applicant argues as a result of the lack of information in the ITO,
this inference cannot be made.
[123] At paragraph 214(h)(ii) of the ITO, Constable Hoard states:

I know MUNTON has submitted photographs of accident scenes and other areas in the city
of Vernon to local online media agencies. It is reasonable to assume he would also have
taken pictures of the arsons and the most common method of taking pictures is now the
mobile phone.
The applicant argues that a credibly-based probability cannot be based on an assumption. I agree
with this submission.
Crown’s Position
[124] The Crown argues because “of the ubiquitous use of texting”, Mr. Holcroft and the applicant’s
close relationship, it is reasonable to infer that the applicant and Mr. Holcroft texted each other
during the arsons’ timeframe. The Crown argues the text communications would reveal what the
applicant and Mr. Holcroft were up to at the time of the fires, their messages would reveal their
location at the time of the fires, as well as circumstances of the fires. The Crown argues “these are
just some examples of the indirect evidentiary value of the communications”.
[125] The Crown relies on the following questions posed by Corporal Jeffery and their responses
given by Mr. Holcroft relating to texting between them:
JEFFERY: just tell me about the night.
HOLCROFT: Okay yeah so like I said I’s sittin at home, got the phone call. Um went
through that whole thing and then something happened either Will texted me or I
texted him and coffee came up right. So we went and grabbed a coffee and then uh
or went to his house and then grabbed a coffee. One of the two. And we grabbed
something from his place. I think it was like a compressor or something and then uh
…
…
HOLCROFT: The same as always. Um like I said he texted me for coffee er I texted him
for coffee, one of the two. Went and grabbed a coffee um went to his house, from
there we saw … where does that sit …like that I think.
…
HOLCROFT: Um yeah sittin my computer. Texted Will or he texted me, I can’t remember
either way coffee came up and um so he came down and picked me up. That was
probably ten minutes later. Uh went for coffee. Provably grabbed the one out on the
landing so like way out here.
…
JEFFERY: He calls you. An hour later your uncle calls you and says hey texts you and
says hey…
HOLCROFT: (INAUDIBLE)
JEFFERY: …you wanna hang out again?
HOLCROFT: Yeah
JEFFERY: ‘kay so that’s an hour outside of the phone call.
HOLCROFT: Right
JEFFERY: He texts you. How long after he texts you does he show up?
HOLCROFT: Probably about ten minutes.
JEFFERY: Ten minutes so an hour and ten minutes you’re in the car with him.
HOLCROFT: Yeah.
…
JEFFERY: But you talked to um you’ve talked to Will regularly with that right?
HOLCROFT: Yeah
JEFFERY: (INAUDIBLE) reach out to him that day and you told me?
HOLCROFT: Yeah well I was trying to get a hold of him and that just, he wasn’t answering
right so.
JEFFERY: How come you were tryin to get a hold of him?
HOLCROFT: I was wondering what he was up to.
JEFFERY: Ok. So
HOLCROFT: And then when he didn’t answer I text him, call me. So.
JEFFERY: Ok. No um, USB thing was that the one was that in the um
HOLCROFT: That was in the house.
JEFFERY: It was in the house yeah. So who does it belong to?
HOLCROFT: It’s Will’s I’m pretty sure.
JEFFERY: Where’d you find it?
HOLCROFT: Um, when I pulled the computer off the desk aw I think it flew onto the bed
and I just grabbed it.
[126] This last series of questions and answers described above does not relate to the time of the
fires, rather it relates to when Mr. Holcroft took the applicant’s HP from the applicant’s residence.
[127] The Crown argues that if there is an oversight in failing to set out in the ITO material facts,
the fact of communication by telephone and texting between the applicant and Mr. Holcroft around
the time of the fires is surely a material fact.
[128] The Crown argues though not in the ITO, the reviewing justice may consider this information
if it was known at the time of the preparation of the ITO. In support of this, the Crown relies on para.
13 of R. v. Boussoulas, 2014 ONSC 5542:
[13] … While this amplification evidence can be used to correct "good faith errors" by the
affiant in the preparation of the ITO, it cannot be employed to cure "deliberate attempts to
mislead" the authorizing justice. Further, the amplification evidence must be evidence that
was available to police investigators at the time the ITO was sworn -- not information that
was acquired later. …
The Court further stated:

[14] The court reviewing the ITO is also obliged to consider information that was not
disclosed to the issuing justice, keeping in mind the fact that search warrant applications
are ex parte proceedings and that police officers seeking such warrants are obliged to
make full, fair, and frank disclosure of all material facts -- whether they implicate the target
of the investigation or not. In circumstances in which relevant information has, inadvertently,
not been properly disclosed in an ITO, the issue for the reviewing court is whether the
issuing justice, having been apprised of the omitted information, could judicially have issued
the search warrant. …
[129] I conclude that this information that the Crown wishes me to look at, was simply not in the
ITO and was not an attempt to correct “good faith errors” by Constable Hoard in preparation of the
ITO.
Analysis
[130] Mr. Holcroft’s evidence is that neither he nor the applicant discussed the fires. This
statement undermines the police theory that in texting each other, the applicant and Mr. Holcroft
discussed the fires. In Mr. Holcroft’s statement of June 2, 2016, he described limiting texting
between himself and the applicant as arranging to go to coffee or hang out with each other. Mr.
Holcroft’s statement provide no context as to the date or time, nor does Mr. Holcroft state whether
going to coffee or hanging out is connected with the fires.
[131] This texting is undermined by the material facts not disclosed to the judicial justice which are
that the applicant and Mr. Holcroft never discussed the fires; Mr. Holcroft was on his third cell
phone and there is a 19-month gap since the last fire. These material facts undermine the inference
that the cell phones would reveal evidence of text messages.
[132] For there to be reasonable grounds to believe digital image evidence was currently on the
cell phone seized from the applicant:
…there would have to be some evidence to ground an inference that this seized phone was
the same phone he was using nineteen months earlier and that the incriminating data on
the phone would have to have been preserved for nineteen months or that he had
transferred over the incriminating evidence to a new phone.
[Applicant’s submissions.]
[133] No assumption can be made that this incriminating evidence, either on the applicant’s phone
or Mr. Holcroft’s phone, would have been transferred. It simply makes no sense:
…without any information that the applicant used his phone to take photos or images of the
offences in the first place, without any evidence that it is the same phone he was using at
the time of the arsons, and with a nineteen month gap in time in between the last offence
and when the phone was seized, this ITO does not even begin to establish probable cause
that digital image evidence of these stale dated offences would be found on the applicant’s
current phone. The same can be said, for the reasons mentioned above, that the ITO did
not establish a credibly based probability that text message evidence would be on the cell
phones.
[Applicant’s submissions]
I agree with these statements made by the applicant.
[134] The Crown argues that paragraphs 3, 4 and 21 (g) of the ITO, together with the common
knowledge about the cell phones “that a justice can use in a practical, non-technical common
sense reading of the ITO”. This same kind of argument was rejected in Dadmand at paras. 68-70; it
should be rejected here.
[135] Mr. Justice Pearlman did not exclusively rely on technical evidence about computers and
other storage devices from Sergeant Row in coming to the conclusion that the warrant was valid.
Mr. Justice Pearlman also relied on evidence in the ITO from complainants and other evidence
relating to the offences referred to earlier in these reasons.
[136] There is no evidence the applicant took images of the fires with his cell phone; he was using
the same phone at the time of the fires; the gap of 19 months from the last fire to when the phone
was seized; the ITO does not establish a credibly-based probability that text messages would be
found on the cell phone.
HP Computer
[137] It is in the HP where images were found, alleged to be pornography; which resulted in the
pornography charges the applicant faced.
[138] The applicant argues it must be established that there are reasonable and probable grounds
to search the HP. Even though there is physical evidence in a residence, the validity of the search
of the HP must be specific to the HP: R. v. Vu, 2013 SCC 60 at paras. 3 and 48:
[3] … If, in the course of a warranted search, police come across a computer that may
contain material for which they are authorized to search but the warrant does not give them
specific, prior authorization to search computers, they may seize the device but must obtain
further authorization before it is searched.
…
[48] … if police intend to search any computers found within a place they want to search,
they must first satisfy the authorizing justice that they have reasonable grounds to believe
that any computers they discover will contain the things they are looking for. …
[139] The applicant argues the search of the HP suffers from all the problems relating to the
searches for other items in the ITO. The applicant argues the ITO does not provide a basis that the
HP has current evidence of a 19-month old crime. However, the applicant states there is a
difference between the HP, the cell phone and the residence, as upon learning of the applicant’s
arrest, Mr. Holcroft took the HP from the applicant’s residence.
[140] The applicant argues that the following questions posed to Mr. Holcroft by Corporal Jeffery in
the June 2, 2016 statement eliminates finding evidence of the arsons in the HP. Alternatively, the
applicant argues its strength is reduced below what is required for a probability “as opposed to a
mere possibility (ie reasonable suspicion)”: R. v. Chehil, 2013 SCC 49 at para. 27.
JEFFERY: And he’s he’s … now now as far as that’s concerned, you know I know that
your friends asked you about that. And you told them my uncle told me if I if he ever
gets arrested, get to that computer and get it outta the house.
HOLCROFT: Yeah.
JEFFERY: That’s is the thing you’re holdin onto dude.
HOLCROFT: Okay.
JEFFERY: Don’t hold on to it.
HOLCROFT: God I don’t know why he told me that. I honestly don’t. I just it was long
before the fires. Long before anything right so…
JEFFERY: What’d he say?
HOLCROFT: He those words exactly.
JEFFERY: So what’s on that computer?
HOLCROFT: Nothing on me, no.
[141] The applicant argues that the affiant, by placing this statement in paragraph 215 “in a limited
place”, “ran the risk that the reader would not recognize its significance”. The applicant points out
that the affiant did not state in paragraph 187 as to when the applicant gave Mr. Holcroft this
instruction described above.
[142] The applicant argues that Ms. Megan Walker gave the police a statement, stating that Mr.
Holcroft was told by the applicant that if anything happened to him, to take the HP. However, the
applicant argues that a portion of Ms. Walker’s statement was omitted, which is:
WALKER: So I don’t know if that’d be classified as a pedophile but, like he tried to be
under, Chance’s words were he’s seven, or he tried to go for the seventeen eight
year olds, just, like they’re almost nineteen kind of thing because he likes younger
girls.
PARISH: Hm hm
WALKER: …and I’m not sure how old this little guy or who he is but
So this whole time is, that’s what Jordan thought the detectives were at his house
so he could be questioned about it. But, oh yeah another thing…
…
WALKER: …Got out, went in to the house and then he came back out with a computer
software thingy and asked to put it, asked for Chance to open his trunk so he did
and then he put it in, got into the car and said if Will, or Will told me or Chance is like
who’s is that? And and Jordan said Will told me if this kind of thing ever happens to
grab his computer. And then when Chance told me that Will was sleeping with
younger kids kind a led me in wi or Chance to think he’s hiding younger girls in that
computer.
…
WALKER: Well and Jordan said, well, that’s, what we can hope is on like that computer
it was in those words. That’s all we can hope for, it’s not something worse kind a
thing.
PARISH: From Jor, that’s what Jordan said.
WALKER: Yeah.
PARISH: …what we can hope for is.
[143] This, the applicant argues, was not contained in the ITO though known to the affiant. The
applicant argues that this suggests another reason why the applicant wanted Mr. Holcroft to take
the HP. The applicant points out it is not whether there was something on the HP that the applicant
wanted to hide; rather, was there reasonable grounds to believe there was evidence of the four
arsons set out in the ITO to be found in the places for which the warrants were sought. Fish J.
clarifies in Morelli at para. 91:
… And, as a matter of law, suspicion is no substitute for reasonable and probable grounds
to believe either that the appellant committed the alleged offence or that evidence of the
offence would be found in his computer.
Crown’s Position
[144] The Crown argues, supported by Dadmand, it is reasonable to assume that data would be
transferred and saved on other devices, including the HP. This would include data from backing up
cell phones, which is part of the computer system defined in paragraph 21 of this ITO.
[145] The Crown argues there is nothing “nefarious” that can be taken from the decision by the
affiant in placing paragraph 215(n)(iv) as being part of the affiant’s justification for being able to
search electronic devices. The Crown says it is speculation that the judicial justice missed
paragraph 215(n)(iv). The Crown argues that it is presumed the judicial justice, in issuing this valid
warrant, read the entire Affidavit (ITO) and takes into account everything in it.
[146] The Crown argues that Mr. Holcroft’s post-offence conduct is a fact to consider in the context
of the whole ITO and that the applicant told Mr. Holcroft before the arsons to remove the HP if he
was arrested, does not mean that there is no basis to believe that some evidence is probably on
the HP. The Crown argues that several possibilities existed for the judicial justice to consider and
they are:
a. There is no evidence of the arsons on the computer;

b. There is something else incriminatory on the computer;
c. There is nothing at all incriminatory on the computer, it is just important to Munton as it
contains core biographical data or other material he doesn’t want police to see;
d. Holcroft is not telling the truth or is mistaken as to the date when Munton told him to get
the computer;
e. There is evidence of planning the arsons on the computer pre-dating the arsons;
f. Even though there was no evidence relating to the arsons when Munton told Holcroft to
take it if something happened to him, there was evidence put on the computer later,
either indirectly [eg by data transfer] or directly [eg, emails] and Holcroft knew that and
wanted to keep it from police.
[147] The Crown relies on other points relevant to Mr. Holcroft’s post-offence conduct, which are:
g. Holcroft had keys to Munton’s residence and could access it at any time;
h. There was no password on Munton’s cell phone [if Munton could be believed]. If
true, there may well be no password on Munton’s computer;
i. Holcroft had very close association to Munton, calling him ‘”Uncle Will”;
j. It is more likely that Holcroft would act on Munton’s request if Holcroft knew there
was something incriminating on the computer;
k. Holcroft had gone to great lengths to deceive the police as to his whereabouts
[telling his mother he was in Armstrong and telling others they should say that is
where they were];
l. he had seen Munton being arrested by police;
m. he made efforts to find Munton where he would usually be found [work];
n. he texted and called Munton twice and got no answer;
o. only after all of that did Holcroft go and get the computer;
p. the ITO says Munton told Holcroft to get rid of it.
[148] The Crown argues, it is reasonable to conclude that Mr. Holcroft knew that there was
evidence of the arsons on the HP and they needed to be hidden from the police. The Crown argues
that this conclusion was open to the judicial justice to find and it was supported by the ITO.
[149] The Crown again argues that data from the cell phones were likely deposited on the HP
during backup providing evidence of the offences. The Crown also states the police did not have to
believe Mr. Holcroft’s statement, that it was the applicant’s HP and there was evidence in the HP
relating to the arsons, implicating Mr. Holcroft and the applicant.
[150] The Crown points out that in Mr. Holcroft’s first statement he stated he took the HP to fix it. In
his second statement, he then had been told by the applicant, if arrested, to get rid of it.
[151] The Crown argues the data from the cell phone was likely deposited on the HP during back-
up.
[152] The Crown concedes the affiant should have disclosed information about Ms. Walker
pointing out some information contained in her statement at page 3, lines 33 and 38 and page 4,
lines 43 and 44, which the Crown says is not firsthand knowledge. In fact, it is double hearsay and
someone else’s “musings”. The Crown points out that this information casts the applicant in a
“negative light” and “bad character” for no legitimate purposes.
Analysis
[153] In considering whether a warrant should have issued for the HP, there must be credibly-
based probability of evidence that images of the arsons would be found in the HP. The arsons were
19 months old and the HP had been located in the home of the applicant. However, it was taken
when Mr. Holcroft took it from the applicant’s home upon the instructions of the applicant.
[154] The words attributed to Mr. Holcroft at 187(q) of the ITO are “to go get his computer and get
rid of it.” The words “get rid of it” were not used by Mr. Holcroft. Mr. Holcroft stated “get to that
computer and get it outta the house”. Mr. Holcroft stated that those were the applicant’s exact
words. Unfortunately, both counsel for the Crown and the applicant adopted these misleading
words “get rid of it” in paragraph 187(q) of the ITO.
[155] I do not find it significant that Mr. Holcroft telling Corporal Jeffery in his first statement that he
was going to fix the HP and in the second statement, he took the HP because the applicant
instructed him to do so if he were arrested. The Crown puts in issue the credibility of Mr. Holcroft. In
the first statement, Mr. Holcroft denied his involvement in the fires. Ultimately, in the second
statement, he confessed to being involved in the fires and described them in detail. He did not
attempt to lessen his responsibilities in the fires or place it solely upon the applicant. It was clear,
while giving his statement to Corporal Jeffery, Mr. Holcroft appreciated the consequences to him of
his involvement in the arsons.
[156] I do not accept that placing paragraphs 187(q) and 215(n)(iv) in the ITO was done in order
that it would not be read by the judicial justice or by placing it so far apart it might be missed. These
two paragraphs contained in the ITO are as follows:
187. On June 2nd [2016] HOLCROFT was again interviewed and provided a warned
statement to Corporal Kevin JEFFERY. This was monitored via video by Constable
Kerri PARISH. I spoke with Constable PARISH and learned that:
…
q. MUNTON told HOLCROFT that if he was ever arrested to go get his
computer and get rid of it.
…
215.(n)(iv) HOLCROFT told Corporal JEFFERY that he was told by MUNTON to get rid
of MUNTON’S computer [even] prior to the both of them starting the arsons in 2014;
[157] A third paragraph appears in the ITO not referred to by counsel. It states:
HOLCROFT stated in his interview that he was told by MUNTON to get rid of MUNTON’s
computer even prior to the both of them starting the arsons in 2014.
The difference in paragraphs 215 (n)(iv) and 209 is there is no typographical error in paragraph
209.
[158] All the above paragraphs set out in the ITO appear under different headings. These
headings do not influence the context of the above paragraphs.
[159] The statement in paragraph 187(q) of the ITO is misleading and omits that part where the
applicant told Mr. Holcroft to take the HP was given prior to the fires. Paragraph 187(q) of the ITO
does not qualify as to when the applicant told Mr. Holcroft that if he was ever arrested he was to
take the HP. Paragraphs 215(n)(iv) and 209 of the ITO does qualify when Mr. Holcroft received the
instruction from the applicant, which was prior to the arsons. However, paragraphs 215(n)(iv) and
209 are misleading as the word “even” would lead the judicial justice to believe that this statement
made to Mr. Holcroft by the applicant occurred at least two times; once prior to the fire as stated in
paragraphs 209, 215(n)(iv) and, on another occasion in paragraph 187(q), is not qualified as to
time. This is not only misleading, but it is wrong. Had it been clear to the judicial justice that the
instruction given by the applicant was only once and it was prior to the fires, the judicial justice may
have not issued a warrant for the HP as there would be no evidence of the fires on it. By also
including paragraph 209, the ITO may have misled the judicial justice by emphasizing information
that was inaccurate.
[160] Though taking the HP upon the instructions by the applicant to Mr. Holcroft causes a
suspicion that the applicant wanted to hide something from the police on his HP, the issue is: does
the ITO establish reasonable grounds to believe evidence of the fires would be found on the HP?
[161] The applicant argues that failing to include all of Ms. Walker’s statement was a material fact
that should have been disclosed to the judicial justice for him to consider.
[162] I am not going to deal with each of the possibilities contained in paras. 146 and 147 of these
reasons. Some are reasonable and some are assumptions. Some are imaginary and speculative.
However, in some instances there is no evidence to cause the judicial justice to come to these
conclusions or make these inferences.
[163] The Crown acknowledges that Constable Hoard should have included Megan Walker’s
statement to Constable Parish as set out above. However, the Crown argues these statements
were “musings about someone else’s musings”. The Crown states what is alleged that could have
been on the HP is not a crime and would cast the applicant negatively by “bad character evidence
for no legitimate purpose”.
[164] This statement of Ms. Walker is summarized in the running notes of Constable Parish, which
Constable Hoard acknowledges reading at paragraph 182 of the ITO, but not fully disclosed. This
was a material omission because it suggested another reason for why the applicant would want
and ask Mr. Holcroft to take the computer from his residence. This is an alternative inference as to
why the applicant wanted to keep something in his computer secret, having nothing to do with the
arsons. This omission, combined with the fact that the applicant told Mr. Holcroft to take his
computer from his residence if he were ever arrested, occurred before the offences were
committed. The inference that evidence of the arsons would be found on the computer is gone or “if
the inference is not utterly destroyed, its strength is certainly reduced to well below what is required
for probability, as opposed to mere possibility (ie reasonable suspicions).” [Applicant’s
submissions.]
[165] It is not enough that the applicant wished to hide something bad that may have been on his
computer. As Justice Fish said for the majority in Morelli:
[91] …And, as a matter of law, suspicion is no substitute for reasonable and probable
grounds to believe either that the appellant committed the alleged offence or that evidence
of the offence would be found in his computer.
[166] I find that the ITO did not establish reasonable grounds to believe that evidence of the four
arsons were currently in the HP.
[167] For the reasons stated above, I found Warrants #1 and #2 invalid and the search
unreasonable and in violation of the applicant’s rights under s. 8 of the Charter.
SECTION 24 INQUIRY
[168] Section 24(1) and (2) of the Charter reads as follows:

Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
[169] I found both warrants breached the applicant’s s. 8 Charter rights. Warrant #1 was for the
seizure of Rubbermaid containers, fire starting bricks, a drone, a HP and its data and other
electronic devices. Warrant #2 was for the seizure of the applicant and Mr. Holcroft’s cell phones,
the HP and the SanDisk. Without the evidence from the HP and perhaps other data stored on
electronic devices, the Crown’s case was gutted. As a result, the applicant was acquitted on the
child pornography charges.
[170] The warrants issued by the judicial justice on June 3, 2016 were based on the applicant
alleging to have committed four arsons in the Vernon area in 2014 – one in the month of June; one
in July; one in October; and the last November 20, 2014.
[171] These searches are now warrantless.
The Law – Section 24(2) Inquiry
[172] Pursuant to s. 24(2), in order to have evidence excluded, it must have been “obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter”, and, if
admitted, it “would bring the administration of justice into disrepute”.
[173] In determining whether the evidence should be admitted or not pursuant to s. 24(2) of the
Charter, the starting point is an analysis set out in R. v. Grant, 2009 SCC 32 and its companion
case R. v. Harrison, 2009 SCC 34.
[174] The three-step analysis in Grant is described in Harrison as follows:

[2] In R. v. Grant, 2009 SCC 32, released concurrently, we develop a revised
framework for determining whether evidence obtained in breach of the Canadian Charter of
Rights and Freedoms must be excluded under s. 24(2). We identify three avenues of inquiry
which should guide courts in the delicate balancing exercise mandated by that section: (1)
the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the
Charter-protected interests of the accused; and (3) society's interest in the adjudication of
the case on its merits. This case illustrates the difficult choices that courts are forced to
make when these factors pull strongly in opposite directions. Here, the high public interest
in reaching a determination on the merits of the charge is in tension with the need to
dissociate the justice system from patently unconstitutional conduct by state authorities in
obtaining the evidence.
[175] In order for a s. 24(2) inquiry to be held, the threshold requirement is there must be evidence
that was obtained in a manner that infringed or denied any rights of a person before embarking on
analysis of s. 24(2). Madam Justice Watchuk in R. v. Robertson, 2017 BCSC 965 described this
threshold as:
[18] Evidence collected following a Charter breach or breaches meets the "obtained in a
manner" requirement provided the seizure and the breach or breaches form part of the
same transaction and the discovery of the evidence is not too remote from the Charter
breach or breaches (R. v. Strachan, [1988] 2 S.C.R. 980 at 1005-06). There are no hard
and fast rules for measuring remoteness. Instead, such situations should be dealt with on a
case by case basis (Strachan at 1006).
[176] In Robertson, Watchuk J. describes how the Grant factors are considered and weighed:
[23] These factors do not operate as a three-part test. There are no particular findings
under the three lines of inquiry that mandate particular results, and it "is not simply a
question of whether the majority of the relevant factors favour exclusion in a particular
case" (R. v. Harrison, 2009 SCC 34 at para. 36). The balancing mandated by s. 24(2) is
"qualitative in nature and therefore not capable of mathematical precision" (Grant at para.
140). Rather, the court must weigh its considerations under all three factors to determine
whether, on balance and having regard to all the circumstances, admitting the impugned
evidence would bring the administration of justice into disrepute in the long-term, from the
perspective of a reasonable person (Grant at paras. 68 and 85-86; R. v. Côté, 2011 SCC 46
at para. 48). I will describe each factor in further detail below.
[177] The Grant factor starting point is, is there damage done to the public confidence in the
justice system if the impugned evidence is admitted? The question is will the reputation of the
justice system be further damaged?
[178] The burden of proof rests with the applicant who seeks to exclude the evidence. The
applicant must, on a balance of probabilities, prove its admission would damage the reputation of
the justice system.
[179] I will review the law as it relates to each of the Grant factors and then how the Grant factors
are to be balanced and weighed. I will then specifically apply the law to the facts of this case.
Seriousness of the Infringing State Conduct
[180] The court is required to consider the gravity of the offending conduct. The words describing
the offending conduct range from “technical or trivial” to “brazen” and “flagrant”: Harrison at para.
23. These words relate to the officers whose conduct was exercised in good faith to conduct that
was abusive, deliberate or egregious: Grant at para. 133.
[181] In assessing police conduct, “good faith” can relate to whether there is uncertainty in the law.
It may also relate to evidence the police belief that his or her actions were in compliance with the
Charter.
[182] Police actions may be judged positively if the conduct was in order to preserve evidence. A
further factor is whether there were serious behaviours depicting a pattern of disregarding the
Charter as opposed to considering each breach individually. The Court may also consider
behaviour described in Robertson at para. 33:
[33] The independent 'discoverability' of the evidence, in other words whether the
unlawfully-obtained evidence could have been obtained by lawful means had the police
adopted them, is also a relevant factor for consideration under either or both of the first two
factors of the Grant test (Côté at paras. 66-70 and 72). However, this factor will be
irrelevant if discoverability of the evidence is speculative or unknown (Côté at para. 70).
Further, discoverability does not necessarily favour admission of the evidence as it cuts
both ways (Côté at paras. 68 and 70). Under the first Grant factor it reflects badly on the
state if the police failed to obtain a warrant when they could and should have obtained one
(R. v. Buhay, 2003 SCC 30 at paras. 56 and 63). However, if a warrant would have likely
issued then this mitigates both the seriousness of the state's conduct under the first Grant
factor (provided the police had a reasonable excuse for not seeking the necessary warrant)
as well as the violation's impact on the accused under the second Grant factor (Côté at
paras. 68 and 72; see also Cole at paras. 89 and 93).
[183] Gorman J. in R. v. Penny, 2011 CanLll 79635 (NLPC) at para. 57 summarizes the Grant
factors and the balancing of the admission or exclusion of the evidence on the repute of the
administration of justice.
[57] In R. v. Scoville, [2011] N.J. No. 268 (P.C.), I had the opportunity to consider Grant.
Based upon the precedents referred to in Scoville and those referred to here, I would
summarize the principles applicable to section 24(2) of the Charter as set out in Grant
and Côté in the following manner:
1. it should be seen as a dramatic reformulation of the test applicable to section
24(2) Charter analysis (R. v. Blake, 2010 ONCA 1 (CanLII), [2010] O.J. No. 48
(C.A.), R. v. Wong, 2010 BCCA 160 (CanLII) and Ngai);
2. in considering and applying section 24(2) of the Charter a trial judge must
apply and utilize the three avenues set out in Grant:
(i) "the seriousness of the Charter-infringing state conduct (admission may
send the message the justice system condones serious state misconduct)."
The first step involves placing the breach of the Charter which occurred along a
"continuum of misconduct" (Blake). The "more severe or deliberate the conduct involved
the greater the need for the courts to dissociate themselves from that conduct, by excluding
evidence linked to that conduct" (Grant). A flagrant disregard for the Charter by the police
(Harrison) will be seen as being very different than a breach in which the police believed
they were acting in accordance with the law (see R. v. Beaulieu, 2010 SCC 7 (CanLII),
[2010] 1 S.C.R. 248 and R. v. Loewen, 2011 SCC 21 (CanLII), [2011] S.C.J. No. 100).
The Court must look "both at what the police did and their attitude when they did it" (see R.
v. Ramage, 2010 ONCA 488 (CanLII), at paragraph 48).
(ii) "the impact of the breach on the Charter-protected interests of the
accused (admission may send the message that individual rights count for
little)."
The second step involves a consideration of the "seriousness of the impact of the Charter
breach on the Charter-protected interests of the accused" (Grant). This requires an
evaluation of the degree to which the Charter violation impacted on the interests sought to
be protected by the Charter. The intrusiveness of the breach which occurred is of
particular importance in this step of the analysis (Morelli). Thus, a distinction between
searches involving residences and vehicles has been made (Morelli and Harrison). The
“more serious the impact on the accused’s constitutional rights, the more the admission of
the evidence is likely to bring the administration of justice into disrepute” (Côté).
(iii) "society's interest in the adjudication of the case on its merits."
The third step in the analysis requires a consideration of the importance of the "truth-
seeking function" of the trial process (Grant). In this regard, the "reliability" of the evidence
in issue becomes a crucial factor (see Grant and Blake). The seriousness of the offence
committed is a factor for consideration (see R. v. Kavangh, [2011] N.J. No. 14 (S.C.), at
paragraph 64, R. v. Reddy, 2010 BCCA 11 (CanLII), at paragraph 94 and R. v. Stevens,
2011 ONCA 504 (CanLII), at paragraph 62), though it was held in Grant that it "has the
potential to cut both ways." In some cases the seriousness of the offence will be a "neutral"
factor (R. v. Martin, 2010 NBCA 41 (CanLII), [2010] N.B.J. No. 198 (C.A.), at paragraph
96). The “reliability of the evidence and its importance to the prosecution’s case are key
factors” under this heading (Côté).
3. Once the "decision tree" (Grant) has been applied and considered, the final or fourth step
involves a balancing of the effect that admission of the evidence would have on the repute
of the administration of justice versus the effect that excluding the evidence would have on
the repute of the administration of justice. The key to the fourth step in the analysis is a
consideration of the seriousness of the violation; the need for the judiciary to dissociate
itself from certain police conduct; and the importance of reliable evidence in the search for
truth (Harrison, Blake and Beaulieu). No one consideration is to trump all others (Côté).
[58] Let us then apply these avenues to this case.
THE THREE AVENUES OF INQUIRY
[59] Let us start with the seriousness of the alleged Charter breach.
(1) the seriousness of the Charter-infringing state conduct (admission may send
the message the justice system condones serious state misconduct).
[60] In Grant, the Court held, at paragraph 73, that this factor requires a trial judge to
evaluate "the seriousness of the state conduct that led to the breach." The more severe or
deliberate the conduct involved "the greater the need for the courts to dissociate
themselves from that conduct, by excluding evidence linked to that conduct" (at paragraph
72). In Blake, it was held that the inquiry "into the nature of the state conduct that resulted
in a Charter breach seeks to place that conduct along a continuum of misconduct." In
Ngai, it was held that the "court's first stage of inquiry requires it to assess whether the
admission of the evidence would bring the administration of justice into disrepute by
sending a message to the public that the courts effectively condone state deviation from the
rule of law by failing to disassociate themselves from the fruit of that unlawful conduct."
[61] In this case, if both search warrants had been ruled to be invalid, then the failure of the
police to properly draft the informations to obtain the search warrants is a consideration
favoring exclusion. Ignorance is not bliss. However, it was reasonable for the police to have
concluded, based upon the issuing judge having granted their applications, that their
applications were properly formulated and that they were thus, acting lawfully (see R. v.
Blanchard, 2011 NLCA 33 (CanLII)). In addition, this is not a case in which the police
purposely misled the issuing judge or where there was a lack of reasonable grounds for the
search warrants to be issued (see for instance, R. v. Keating, [2010] N.J. No. 366 (P.C.), at
paragraph 25). What occurred here was a failure to articulate the grounds clearly. Overall,
this factor favours admission.
(2) the impact of the breach on the Charter-protected interests of the accused
(admission may send the message that individual rights count for little).
[62] In relation to this factor the Court indicated in Grant, at paragraph 76, that trial judges
must concentrate on "the seriousness of the impact of the Charter breach on the Charter-
protected interests of the accused." This requires an evaluation "of the extent to which the
breach actually undermined the interests protected by the right infringed" and the "degree
to which the violation impacted on those interests." The Court must look "at the degree to
which the search and seizure intruded upon the privacy, bodily integrity and human dignity
of the accused" (see R. v. B.D., 2011 ONCA 51 (CanLII), [2011] O.J. No. 198 (C.A.), at
paragraph 88 and R. v. Smith, [2010] N.J. No. 342 (P.C.), at paragraph 26).
[63] In Ngai, it was held that the second avenue of inquiry requires a trial judge "to focus on
the seriousness of the impact on the accused's Charter protected interest. This involves
an evaluation of the extent to which the breach undermined the interests protected by the
right infringed. The more serious the impact on the accused's protected interest, the greater
the risk that admission of the evidence may signal to the public that Charter rights are of
little avail to a citizen. Courts are to consider whether the impact of the breach was fleeting
and technical or profoundly intrusive."
[64] In Morelli, it was held, at paragraph 104, that the "intrusiveness of the search is of
particular importance" in applying the second avenue of analysis. In Morelli, the unlawful
search which occurred involved the accused person's home and personal computer. The
Court stated, at paragraph 105, that "it is difficult to imagine a more intrusive invasion of
privacy than the search of one's home and personal computer."
[65] In this case, the search was conducted at Mr. Penney’s residence. If the two search
warrants were invalid, then a search of his residence occurred without lawful authority. This
is a serious and intrusive invasion of his right to privacy. As pointed out in R. v. Stevens,
2011 ONCA 504 (CanLII), at paragraph 61, the “appellant enjoys a very high
expectation of privacy in his home and in his personal property kept in his home.” However,
in R. v. Farrah, 2011 MBCA 49 (CanLII), [2011] M.J. No. 200 (C.A.), it was noted, at
paragraph 54, that “the fact that a Charter breach occurred in such a setting [a residence]
does not inevitably lead to the conclusion that the admission of evidence would bring the
administration of justice into disrepute.” This factor favours exclusion.
(3) society's interest in the adjudication of the case on its merits.
[66] The Court points out in Grant, at paragraph 79, that Canadian society "generally
expects that a criminal allegation will be adjudicated on its merits." Thus, the third avenue
of inquiry requires a trial judge to ask him or herself "whether the truth-seeking function of
the criminal trial process would be better served by admission of the evidence, or by its
exclusion?" The Court held in Grant that the reliability of the evidence "is an important
factor in this line of inquiry" because the exclusion of reliable evidence can render a trial
"unfair from the public perspective, thus bringing the administration of justice into disrepute"
(at paragraph 81).
[67] In Côté, it was held that the “reliability of the evidence and its importance to the
prosecution’s case are key factors.” The Court also indicated in Cote that “excluding highly
reliable evidence may more negatively affect the truth-seeking function of the criminal law
process where the effect is to ‘gut’ the prosecution’s case.”
[68] Ultimately, trial judges must face the question as to "whether the vindication of the
specific Charter violation through the exclusion of evidence extracts too great a toll on the
truth-seeking goal of the criminal trial" (Grant, at paragraph 82). In Blake, it was held that
society's interest "in an adjudication on the merits is seriously undercut where highly
reliable and important evidence is excluded."
[69] In this case, the evidence sought to be excluded is highly relevant and reliable. Its
exclusion would “gut” the Crown’s case. This factor favours admission.
BALANCING EXCLUSION VERSUS ADMISSION
[70] The final step requires that I consider the evidence in relation to each line of inquiry
and determine whether admission of the evidence would bring the administration of justice
into disrepute. In this case, the police sloppily prepared two documents which led to them
being granted the legal authority to intrusively infringe upon Mr. Penney’s right to privacy in
his own home. The judiciary must dissociate itself from this type of police conduct. The
police must understand the importance of the right to privacy and the importance of
preparing search warrants properly. Almost 30 years after the Charter was proclaimed it is
not unreasonable to expect the police to know how to properly draft an information to obtain
a search warrant. However, it also has to be considered that this matter unfolded quickly.
The police received information on December 20, 2010, conducted surveillance that
evening; checked their data bases; and then prepared two search warrant applications
which were presented to a judge the next day. In addition, there is no evidence of
purposeful malfeasance. The police did not withhold evidence. In fact, they possessed
evidence which supported their applications, but failed to articulate it clearly. Grammatical
errors are not of the same type as others. Finally, the evidence is relevant; reliable; and
crucial to the Crown’s case.
[71] Considering these factors, I conclude that if the two search warrants had been
improperly issued in this case, the admission of the evidence obtained through their
execution would not bring the admission of justice into disrepute because despite the errors
in drafting, the police conduct in this case is not of the nature which demands the judiciary
to disassociate itself from the conduct nor is it of the type which would cause long term
damage to the administration of justice through admission of the evidence.
Impact of the Breach on Charter-protected Interests of the Accused
[184] At this stage of the Grant analysis, the court considers as stated in Harrison:
[28] This factor looks at the seriousness of the infringement from the perspective of the
accused. Did the breach seriously compromise the interests underlying the right(s)
infringed? Or was the breach merely transient or trivial in its impact? These are among the
questions that fall for consideration in this inquiry.
[185] The court considers the applicant’s privacy, liberty, dignity, the right against self-incrimination
and the degree to which it impacts upon the applicant. It is here that the Court considers where the
search took place and whether the applicant enjoys a high degree of privacy and the degree to
which those interests were infringed: Grant at paras. 76-78.
[186] In addition, the Court considers the duration and intensity of the breach upon the applicant:
Harrison at paras. 28-31.
[187] It is well-established, the courts are consistently clear the search of a residence attacks a
high degree of privacy as confirmed in R. v. Dhillon, 2010 ONCA 582:
[56] It is well-established that a dwelling house attracts a high expectation of privacy and
that an illegal search of a person's home constitutes a significant breach of the person's
right to be free from unreasonable search and seizure: R. v. Silveira (1995), 97 C.C.C. (3d)
450 (S.C.C.) at para. 148.
[57] Moreover, at para. 78 of Grant, the majority stated, "[a]n unreasonable search that
intrudes on an area in which the individual reasonably enjoys a high expectation of privacy
... is more serious than one that does not".
[188] The search of an applicant’s personal computer is described in R. v. Morelli, 2010 SCC 8, by
Mr. Justice Fish at paras. 105-106:
[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of
privacy than the search of one's home and personal computer. Computers often contain our
most intimate correspondence. They contain the details of our financial, medical, and
personal situations. They even reveal our specific interests, likes, and propensities,
recording in the browsing history and cache files the information we seek out and read,
watch, or listen to on the Internet.
[106] It is therefore difficult to conceive a s. 8 breach with a greater impact on the Charter-
protected privacy interests of the accused than occurred in this case.
[189] In R. v. Robertson, 2017 BCSC 965, Watchuk J. stated:

[37] … a causal connection between the breach and the evidence can be considered to
mitigate the seriousness of the breach under this factor of the Grant test (Mian at para. 87;
and R. v. Perjalian, 2011 BCCA 323 at para. 66).
[190] The applicant’s s. 8 Charter rights were breached. The applicant’s rights were breached as
his home was searched, his phone and HP were searched by an invalid search warrant. All these
are areas a person can expect a high degree of privacy. This often favours exclusion: Dhillon at
para. 58.
[191] At this stage, the court must consider “whether the truth seeking function of the criminal trial
process would be better served by admission of the evidence, or by its exclusion”: Grant at para.
79.
[192] The court must assess reliability of the evidence and its importance to the Crown’s case:
Robertson at para. 38. Its impact on the Crown’s case and upon the public is described in Harrison
at paras. 33 and 34:
[33] At this stage, the court considers factors such as the reliability of the evidence and
its importance to the Crown's case.
[34] The evidence of the drugs obtained as a consequence of the Charter breaches was
highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged.
The evidence cannot be said to operate unfairly having regard to the truth-seeking function
of the trial. While the charged offence is serious, this factor must not take on
disproportionate significance. As noted in Grant, while the public has a heightened interest
in seeing a determination on the merits where the offence charged is serious, the public
also has a vital interest in a justice system that is beyond reproach, particularly where the
penal stakes for the accused are high. With that caveat in mind, the third line of inquiry
under the s. 24(2) analysis favours the admission of the evidence as to do so would
promote the public's interest in having the case adjudicated on its merits.
[193] This leads to the consideration as to the seriousness of the offence. In R. v. Reddy, 2010
BCCA 11, the Court stated:
[94] … Although “seriousness of the offence” remains a consideration, it has far less
importance than under the Collins/Stillman framework, because s. 24(2) focuses on the
long-term implication for the repute of the administration of justice, and not the public’s
short-term desire for a conviction…
[194] At the same time, it is not a contest between the seriousness of the offence and the
seriousness of police conduct: Harrison at para. 41.
Balancing the Grant Factors
[195] The manner in which the Grant factors are balanced is set out in Robertson, where Watchuk
J. quotes Doherty J. in R. v. McGuffie, 2016 ONCA 365 at para. 41:
[41] While the balancing exercise under s. 24(2) of the Charter is necessarily case-
specific, Doherty J.A., writing for the Ontario Court of Appeal in R. v. McGuffie, 2016 ONCA
365, made the following instructive observations about balancing the Grant factors:
[62] The first two inquiries work in tandem in the sense that both pull toward
exclusion of the evidence. The more serious the state-infringing conduct and
the greater the impact on the Charter-protected interests, the stronger the
pull for exclusion. The strength of the claim for exclusion under s. 24(2)
equals the sum of the first two inquiries identified in Grant. The third inquiry,
society's interests in an adjudication on the merits, pulls in the opposite
direction toward the inclusion of evidence. That pull is particularly strong
where the evidence is reliable and critical to the Crown's case: see R. v.
Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
[63] In practical terms, the third inquiry becomes important when one, but not
both, of the first two inquiries pushes strongly toward the exclusion of the
evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v.
Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at
paras. 45-55. If the first and second inquiries make a strong case for
exclusion, the third inquiry will seldom, if ever, tip the balance in favour of
admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at
paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-
112. Similarly, if both of the first two inquiries provide weaker support for
exclusion of the evidence, the third inquiry will almost certainly confirm the
admissibility of the evidence: see e.g. Grant, at para. 140.
Analysis
[196] The applicant concedes the evidence is real and reliable. Without the evidence the Crown
had no case.
[197] The applicant acknowledges that the child pornography raises “a powerful moral revulsion”
within society. Despite this, the courts must still uphold the constitutional standards despite the
nature of the offence, relying on Morelli:
[8] To be sure, offences involving child pornography are particularly insidious. They
breed a demand for images that exploit vulnerable children, both economically and morally.
Understandably, offences of this sort evoke a strong emotional response. They generate
widespread condemnation and intense feelings of disapprobation, if not revulsion.
[9] It is for this very reason that the police, in enforcing the law, must avoid any
temptation to resort to stereotypical, inflammatory, or misleading allegations. And where
they yield to that temptation, courts must be particularly vigilant to issue process, or
subsequently validate the issuance of process, only where reasonable and probable
grounds for a search or an arrest are in fact made out. While the law must be relentlessly
enforced, legal requirements must be respected, and constitutional safeguards preserved.
[198] The applicant also argues that despite the seriousness of the offence, the focus of s. 24(2) is
the long-term reputation of the justice system. The applicant refers to Justice Doherty’s comments
in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), who stated:
In addressing the effect of the exclusion of the evidence on the repute of the administration
of justice, I bear in mind the comments of Iacobucci J. in R. v. Burlingham, [1995] 2 S.C.R.
206 at p. 242, 28 C.R.R. (2d) 244 at pp. 268-69, 97 C.C.C. (3d) 385 at p. 408:
... we should never lose sight of the fact that even a person accused of the most
heinous crimes, and no matter the likelihood that he actually committed those
crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting
those rights affects not only the accused, but also the entire reputation of the
criminal justice system. It must be emphasized that the goals of preserving the
integrity of the criminal justice system as well as promoting the decency of
investigatory techniques, are of fundamental importance in applying s. 24(2).
Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The
moral authority to apprehend and punish those who commit crimes rests on the
community's commitment to the rule of law. Convictions procured by state violations of our
most fundamental law lack that moral authority. Respect for the rule of law and the long-
term viability of the justice system suffers where the police engage in "short cuts" or fail to
respect the constitutional rights of those they encounter in the course of the exercise of
their duties. The long-term harm to the justice system is not worth the short-term gain made
by the admission of evidence which was obtained in a manner that ignores the rule of law.
[199] The applicant argues in this case the seriousness of the breaches and its impact on the
Charter-protected interest of the applicant pushed towards the exclusion of the evidence.
[200] The applicant argues that it is rare that society’s interest in the adjudication on the merits will
overcome this exclusion. The applicant argues the breaches were serious because the applicant’s
high expectation of privacy in the places searched and the evidence seized should be excluded.
[201] Further, the applicant argues that the ITO “was woefully inadequate to justify the issuance of
the warrants”. Lastly, Constable Hoard violated his duty to make full and frank disclosure of all the
material facts.
Crown’s Position
[202] The Crown acknowledges the applicant had a high expectation of privacy to the applicant’s
cell phone, his HP and in relation to his residence. The Crown argues the police could have
searched the applicant and Mr. Holcroft’s cell phones given that Mr. Holcroft telephoned the
applicant twice upon the applicant’s arrest. The Crown relies on R. v. Fearon, 2014 SCC 77, to
support this proposition.
[203] The Crown rejects the proposition that the warrant was issued without reasonable grounds.
The Crown acknowledges that though some inferences may not be reasonable, there was sufficient
evidence in the ITO to issue the warrant.
[204] The Crown argues that the police undertook a careful and diligent investigation by excluding
the other suspects; obtaining a production order; determined whether alibis existed for Mr. Holcroft
and the applicant; and followed an investigative arrest plan that respected the applicant and Mr.
Holcroft’s Charter rights and then only sought the warrants.
[205] The police point out that after securing the applicant’s residence, the police assisted the
applicant in securing his relief by driving the applicant to the bank so as to obtain money for his
release and then the police drove him to a friend’s place.
[206] The Crown alleges the seriousness of the breach is low and favours admission of the
evidence or at the least, admission of the evidence for the HP and the applicant’s cell phone.
[207] The Crown further argues the expectation of privacy for the cell phones is reduced because
the cell phones were in the possession of the police. The Crown argues that there is a reduced
expectation of privacy in the HP because it was abandoned and Mr. Holcroft was in possession of it
and was to get rid of it.
[208] The Crown cautions that just because a Charter breach occurs in a home is not a reason to
exclude the evidence: R. v. Farrah, 2011 MBCA 49:
[54] Although the expectation of privacy in one's dwelling is prima facie high, the fact
that a Charter breach occurred in such a setting does not inevitably lead to the conclusion
that the admission of evidence would bring the administration of justice into disrepute (see
Gomboc at paras. 45-46).
Impact of the Breaches – Charter-protected Interests
[209] This part of s. 24(2) inquiry relates to the seriousness of the infringement upon the applicant.
[210] The effect is significant in that the police searched the applicant’s residence with an invalid
warrant, his cell phone and HP to which the law affords the ultimate expectation of privacy almost
equal to the privacy of a residence. The applicant was required to be out of his home while the
police searched his residence.
[211] I reject the Crown’s argument in this case that the police could have searched Mr. Holcroft
and the applicant’s cell phones upon their arrest. In Fearon, the Court found the search of the
accused’s cell phone upon his arrest was truly incidental to the arrest. This is confirmed by Mr.
Justice Cromwell at para. 33:
[33] In my view, the searches of the cell phone that lead to the discovery of the text
message and the photos that the Crown introduced as evidence at trial were truly incidental
to the arrest. It is clear from the record and the trial judge's findings that the search was
directed at public safety (locating the hand gun), avoiding the loss of evidence (the stolen
jewellery) and obtaining evidence of the crime (information linking Mr. Fearon to the robbery
and locating potential accomplices).
At the time of the arrest of the applicant and Mr. Holcroft, there was no public safety concern; no
concern of loss of evidence; nor desire to locate accomplices.
[212] The Crown argues that because the HP was in the possession of Mr. Holcroft with the
applicant’s consent, all the data was accessible to Mr. Holcroft, thus reducing the applicant’s
expectation of privacy. To support its position, the Crown relies on R. v. Cole, 2012 SCC 53:
[213] In Cole, Fish J. starts his decision with these words:
[1] The Court left no doubt in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, that
Canadians may reasonably expect privacy in the information contained on their own
personal computers. In my view, the same applies to information on work computers, at
least where personal use is permitted or reasonably expected.
[2] Computers that are reasonably used for personal purposes -- whether found in the
workplace or the home -- contain information that is meaningful, intimate, and touching on
the user's biographical core. Vis-à-vis the state, everyone in Canada is constitutionally
entitled to expect privacy in personal information of this kind.
[3] While workplace policies and practices may diminish an individual's expectation of
privacy in a work computer, these sorts of operational realities do not in themselves remove
the expectation entirely: The nature of the information at stake exposes the likes, interests,
thoughts, activities, ideas, and searches for information of the individual user.
[214] The appellant, Cole, while at work, used a laptop computer owned by his employer. Mr. Cole
was permitted to use the computer for personal matters. The computer was searched without a
warrant. The Court found that Mr. Cole’s rights had been infringed under s. 8 of the Charter. The
Court found at para. 8:
... It was, however, a diminished expectation of privacy in comparison with the privacy
interest considered in Morelli -- which, unlike this case, involved a personal computer that
belonged to Mr. Morelli and was searched and seized in his home.
[215] The Crown argues, relying on R. v. Patrick, 2009 SCC 17, there is a reduced expectation of
privacy in the HP as Mr. Holcroft was in possession of it and was to get rid of it. As I have stated,
the applicant’s instructions to Mr. Holcroft were not to get rid of it, but to take it out of his residence.
In Patrick, the police searched Mr. Patrick’s garbage left by him for municipal garbage pick-up. The
Court found this act by the appellant, abandoned his interest and control of the garbage to
“eliminate any objectively reasonable privacy interest”.
[216] The fact that Mr. Holcroft had physical control of the HP (carrying it) with the consent of the
applicant, did not diminish the applicant’s expectation of privacy. It is the data that is important, not
the tower in which the data is stored. There was no evidence that Mr. Holcroft could access the
data. The HP certainly was not abandoned in the sense that it and its data had been discarded
leaving no further privacy interest in it.
[217] The Crown also relies on R. v. Blais, 2004 CanLII 8466 (ON CA). In Blais, the item was a
key, which could not be released by the jailor who had safe-keeping of it until a warrant was
obtained. Rosenberg J.A. stated:
[12] The appellant submits that the two inspections of the plastic bag by Detective Hahn
were unreasonable searches akin to the warrantless perimeter searches found to be
unreasonable by the Supreme Court of Canada in R. v. Grant, 1993 CanLll 68 (SCC), 84
C.C.C. (3d) 173 (S.C.C.). The appellant submits that this tainted the search warrant later
used to seize the key. In my view, this is not an apt analogy. The search conducted in Grant
was of the accused’s private dwelling in which he had a reasonable expectation of privacy.
In this case, once the state had seized his belongings, the appellant had a greatly reduced
expectation of privacy.
[218] The data in the HP is not like a key. The same argument can be made as to the applicant’s
cell phone. I conclude that the applicant’s expectation of privacy as to the data in the HP and the
cell phone was not diminished because the HP was in the possession of Mr. Holcroft and the cell
phone was in the possession of the police.
[219] The police conducted a significant investigation of the arsons prior to applying for the
warrant and that the police treated the applicant well when he was out of his residence. However,
these events cannot impact state infringing conduct.
[220] The state infringing conduct is the police did not have reasonable and probable grounds to
issue the warrants and the police did not disclose all the material facts known to them in the ITO.
[221] It is conceded by the Crown that the applicant had a high expectation of privacy in his
residence. In Morelli, Fish J. stated at para. 105:
[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of

privacy than the search of one's home and personal computer. Computers often contain our
most intimate correspondence. They contain the details of our financial, medical, and
personal situations. They even reveal our specific interests, likes, and propensities,
recording in the browsing history and cache files the information we seek out and read,
watch, or listen to on the Internet.
[222] In the ITO, reasonable and probable grounds related to the applicant who had juice
containers in his residence; it was alleged to be evidence of the arsons. The police knew the
evidence was burned up in the fires, except where they had in their possession burnt remains, one
of which had the applicant’s fingerprint.
[223] Their reasonable and probable grounds relating to the cell phones and the HP were based
on generalizations such as people using cell phones to take photographs, having no evidence that
Mr. Holcroft or the applicant took pictures or an inference they had done so. Constable Hoard
stated on reasonable and probable grounds that the applicant had a drone, and using it for certain
purposes, would have images of the fires, the inference is without any facts to support that images
were taken. From there, there was a generalization that because people take pictures with their cell
phones and the drone was used on certain occasions, these images were stored in the applicant’s
HP, again without facts to support such an inference. These generalized statements made by the
affiant was an attempt to have the judicial justice make an inference without facts to base it upon.
Examples are found in the ITO at paras. 214(d), (g) and (h).
[224] The seriousness of such a breach is considered in R. v. Wing, 2009 YKTC 113 at para. 53:
[53] It must be remembered that the prior judicial authorization process is an ex parte
one, which does not allow for the accused to challenge the validity of information being
presented to the issuing judge before a search warrant is granted and executed. Given this,
it is vital that there be scrupulous adherence to the standards expected in the process as
established in both legislation and case law. With respect to a request for a warrant to
search a private residence, the standard of reasonable grounds is a clear and well-
established one, and must be recognized to be the absolute minimum standard which must
be met to support state intrusion into someone's home. To condone intrusions which fall
short of this standard runs the risk of eroding the standard itself by sending the message
that so long as there is no bad faith and so long as there is some evidence, it does not
matter if the minimum standard is met.
[225] The next issue is whether to admit the evidence or exclude the evidence. This inquiry
pushes towards the admission of the evidence, particularly where it is critical and reliable to the
Crown’s case. This was the situation here.
[226] The charges the applicant faces are serious. It is at this time of the s. 24(2) analysis that the
court must consider whether it is in society’s interest that there be a trial, where evidence is
adjudicated on its merits.
[227] The conduct of the police, which led to the breaches was picking and choosing the facts that
found their way into the ITO that supported the judicial justice to issue the warrants.
[228] In Morelli, Mr. Justice Fish stated:

[102] The repute of the administration of justice is jeopardized by judicial indifference to
unacceptable police conduct. Police officers seeking search warrants are bound to act with
diligence and integrity, taking care to discharge the special duties of candour and full
disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they
must guard against making statements that are likely to mislead the justice of the peace.
They must refrain from concealing or omitting relevant facts. And they must take care not to
otherwise exaggerate the information upon which they rely to establish reasonable and
probable grounds for issuance of a search warrant.
[229] The evidence is reliable and it is essential to the Crown’s case and its exclusion ended the
Crown’s case. The applicant concedes this favours admission of the evidence. It is not automatic
exclusion because the breaches took place in a residence: Penney.
Balancing the Section 24(2) Factors
[230] The first s. 24(2) factors favour excluding the evidence because of the seriousness of the
breaches. The court must balance all the factors with focus on the long-term reputation of the
administration of justice.
[231] In Harrison, the balancing exercise is described as:

[36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of
mathematical precision. It is not simply a question of whether the majority of the relevant
factors favour exclusion in a particular case. The evidence on each line of inquiry must be
weighed in the balance, to determine whether, having regard to all the circumstances,
admission of the evidence would bring the administration of justice into disrepute.
Dissociation of the justice system from police misconduct does not always trump the truth-
seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is
the long-term repute of the administration of justice that must be assessed.
Analysis
[232] In executing the warrants, the items located, except the cell phone and HP, were found in the
applicant’s residence. The HP was in the residence of the applicant and was taken into possession
by Mr. Holcroft. The cell phones were in the possession of the police as a result of the applicant
and Mr. Holcroft’s arrest.
[233] The s. 8 breaches occurred as a result of the police having no reasonable or probable
grounds for issuing the warrants as they burned up in the fires. Nor could an inference be drawn
that because the Rubbermaid containers and fire starters were found, this is evidence of the
arsons. Further, the breach occurred in the applicant’s residence where he had a high expectation
of privacy. Finally, the affiant did not make full and frank disclosure of material facts in the ITO.
[234] Warrant #1 authorized the seizure of Rubbermaid containers and fire starters which the ITO
stated would afford evidence of the arsons. As argued by the applicant, this was impossible
because they had burned in the fires. Constable Hoard then argued that the police wanted to
determine how many containers and how much fire starter was in the applicant’s residence and/or
if there were incendiary devices in the residence. This was not stated in the ITO. The police had
evidence of the arsons including a fingerprint of the applicant at one of the arson sites.
[235] Probably the most serious breach is the failure to make full and frank disclosure of all
material facts. The Crown provides only one example of a material fact at paragraph 21(f) of the
ITO which states the police had no information as to whether the applicant had log settings on his
HP. The material facts disclosed are in Mr. Holcroft’s second statement and the information
provided by Mr. Holcroft, which I have detailed earlier in these reasons. The statements provided
by Mr. Holcroft are important and are likely reliable evidence because Mr. Holcroft admitted to
having set the arsons with the applicant and described the role he played in the arsons without
reservation or excuse.
[236] Constable Hoard did not purposely exclude the information from the ITO. He simply was not
providing the information from Mr. Holcroft’s statement so as to make full and frank disclosure for
the judicial justice to consider. Constable Hoard did not know that Mr. Holcroft was on his third
phone; the manner in which the arson sites were chosen by Mr. Holcroft and the applicant; the
evidence of Mr. Holcroft that the drone and the cell phones were not used to take photographs of
the fires; rather relying on events where the applicant flew his drone, not taking into consideration
Mr. Holcroft’s evidence as to the drone. Constable Hoard assumed that because the applicant took
photographs with his drone for online media, had flown the drone in the area of one of the fires and
had a conversation in 2015 with the applicant at a softball tournament, the applicant took pictures
with his drone of the arsons. Finally, it was not disclosed that Mr. Holcroft and the applicant never
discussed the fires. The statements from Mr. Holcroft were likely reliable and should have been
considered and made their way into the ITO – they did not because the affiant did not know and
relied on another police officer, Constable Parish to provide him with accurate information and all of
the information from Mr. Holcroft’s interview. This resulted in Constable Hoard omitting material
facts from the ITO.
[237] Constable Hoard relied on Constable Parish’s notes and the facts he obtained from her
when they met. As this communication was going on, Corporal Jeffery continued to receive material
facts from Mr. Holcroft. This is not a situation where the events of taking the statement were in
different geographic areas. They were all happening within close proximity to each other.
[238] Despite the Crown’s statement in its written submissions, Constable Hoard testified he was
not rushed in preparing the ITO.
[239] Whether to describe the manner in which Constable Hoard obtained the information for the
ITO was negligent or careless, I conclude it was a bit of both. It resulted in not fully disclosing all of
the material facts. All Constable Hoard had to do was monitor Mr. Holcroft’s statement or obtain a
transcript of it, or even seek further information from Constable Parish by asking questions of her.
The reason for not doing so is weak, which was the police did not want to keep the applicant from
his home.
[240] However, the ITO contains a statement which is false; that is, when Mr. Holcroft was told by
the applicant to take his HP from his home was not only misleading, but untrue. Mr. Holcroft said
that the applicant, prior to the fires, told him if the applicant was ever arrested, he was to take the
applicant’s HP from the applicant’s residence. The ITO leaves the impression that the applicant told
Mr. Holcroft, a minimum of two times, to do this, both before and after the fires. The evidence is
clear, Mr. Holcroft said he received his direction from the applicant prior to the fires.
[241] I find that these breaches – omissions go to the heart of whether to issue the warrant or not
by the judicial justice and cannot be excused because Constable Hoard could have taken steps to
make it known to himself, all the material facts for consideration by the judicial justice. I find these
breaches very serious.
[242] It was not intentional on the part of Constable Hoard not to disclose material facts. It
occurred because of the manner in which he gathered facts for the ITO. Constable Hoard relied on
Constable Parish to provide him with the information that Mr. Holcroft gave Corporal Jeffrey. This
method of obtaining facts for an ITO cannot be condoned. To do otherwise, would permit the
affiants to isolate themselves from the facts known to the police, pleading they did not know certain
material facts. Constable Hoard could have watched Mr. Holcroft’s statement by video as
Constable Parish did or obtained a transcript of the statement.
[243] Having regard to all the circumstances, including failing to have reasonable and probable
grounds, the expectation of privacy, the failure to disclose reliable material facts in the ITO for the
judicial justice to consider and despite the serious charges faced by the applicant, I concluded that
the price paid by society in the acquittal of the applicant, by maintaining Charter standards,
outweighs society’s interest for a trial and the evidence be adjudicated on its merit.
[244] I excluded the pornographic images that form the basis of the three charges in the
Indictment found on the HP and CD labelled “Z” and were excluded under s. 24(2) of the Charter.
“H.C. Hyslop J.”
HYSLOP J.

2018 BCSC 581 R. v. Munton

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2018 BCSC 581 R. v. Munton

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IN THE SUPREME COURT OF BRITISH COLUMBIA

William Murray Phelps Munton

Before: The Honourable Madam Justice Hyslop

Voir Dire Ruling re the Admissibility of the Seizure of Items Pursuant to a

Counsel for the Crown: J.S. Guild

Counsel for the Applicant: J. van der Walle

Place and Date of Hearing: Vernon, B.C.

[3] I postponed giving my reasons. These are my reasons.

2. Was there a breach of Mr. Munton’s s. 8 Charter right?

PRINCIPLES OF LAW GUIDING THE OBTAINING OF AN ITO

[16] In R. v. Ling, 2009 BCCA 70, the Appeal Court stated:

[19] In his submissions, the applicant concedes that although:

(1) that an offence has been committed or is suspected of being committed;

Rubbermaid Containers and Fire Starter Bricks

The Crown’s Position

Analysis – Rubbermaid Containers and Fire Starter

The Crown’s Position

[71] Later in the statement, Corporal Jeffery asks:

Computers and Electronic Storage Devices

The Applicant’s Position

[86] The Crown relies on this proposition:

[97] Mr. Justice Pearlman concluded:

Text Message Communications

[123] At paragraph 214(h)(ii) of the ITO, Constable Hoard states:

The Court further stated:

I agree with these statements made by the applicant.

a. There is no evidence of the arsons on the computer;

[168] Section 24(1) and (2) of the Charter reads as follows:

[171] These searches are now warrantless.

The Law – Section 24(2) Inquiry

[174] The three-step analysis in Grant is described in Harrison as follows:

Seriousness of the Infringing State Conduct

Impact of the Breach on Charter-protected Interests of the Accused

[189] In R. v. Robertson, 2017 BCSC 965, Watchuk J. stated:

Society’s Interest in the Adjudication of the Case on its Merits

Balancing the Grant Factors

Impact of the Breaches – Charter-protected Interests

[213] In Cole, Fish J. starts his decision with these words:

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of

Society’s Interest in the Adjudication of the Case on its Merits

[228] In Morelli, Mr. Justice Fish stated:

Balancing the Section 24(2) Factors

[231] In Harrison, the balancing exercise is described as:

“H.C. Hyslop J.”

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