R. v. Morelli

R. v. Morelli
Collection
Supreme Court Judgments
Date
2010-03-19
Neutral citation
2010 SCC 8
Report
[2010] 1 SCR 253
Case number
32741
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Saskatchewan
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 32741
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253
Date: 20100319
Docket: 32741
Between:
Urbain P. Morelli
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 113)
Dissenting Reasons:
(paras. 114 to 183)
Fish J. (McLachlin C.J. and Binnie and Abella JJ. concurring)
Deschamps J. (Charron and Rothstein JJ. concurring)
______________________________
R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253
Urbain P. Morelli Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Morelli
2010 SCC 8
File No.: 32741.
2009: February 18; 2010: March 19.
Present: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Search and seizure — Validity of search warrant — Police obtaining warrant to search accused’s computer — Pornographic pictures involving children found and accused convicted of possession of child pornography — Whether search warrant issued on basis of misleading, inaccurate and incomplete information — Whether search of computer breached accused’s rights under s. 8 of Canadian Charter of Rights and Freedoms — If so, whether evidence ought to be excluded pursuant to s. 24(2) of Charter .
Criminal law — Search warrant — Validity — Police obtaining warrant to search accused’s computer — Pornographic pictures involving children found and accused convicted of possession of child pornography — Whether there were reasonable grounds to issue search warrant — Whether search warrant issued on basis of misleading, inaccurate and incomplete information.
Criminal law — Possession of child pornography — Elements of offence — Definition of possession — Whether possession of illegal image in computer means possession of underlying data file — Whether possession can be established even if accused did not download image — Criminal Code, R.S.C. 1985, c. C‑46, ss. 4(3) , 163.1(4) .
On September 5, 2002, a computer technician arrived unannounced at the accused’s house to install a high‑speed Internet connection the accused had ordered. The accused lived with his wife and two children, aged three and seven, but was alone that day with his younger daughter. When the technician opened the accused’s Web browser, he noticed several links to both adult and child pornography sites in the taskbar’s “favourites” list, including two that were labelled “Lolita Porn” and “Lolita XXX”. He also saw a legal pornographic image, but he could not remember afterwards if it was on the browser’s home page or on the computer desktop. In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and was pointed at the toys and at the child. Unable to finish his work on that day, the technician returned the following morning and noted that everything had been “cleaned up”: the child’s toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user’s chair and the computer hard drive had been “formatted”. In November, concerned with the child’s safety, the technician reported what he had seen to a social worker, who contacted the RCMP. The technician made a statement to Cst. O in January 8, 2003. After the interview, O consulted Cpl. B from the RCMP’s Technological Crime Unit, who he knew had experience investigating crimes involving computers and technological devices. B stated that these types of offenders were habitual and would continue their computer practices with child pornography and that this information would remain inside the hard drive of the computer. O also spoke to Cst. H who, he had been told by a Crown attorney, had experience investigating child exploitation offences. H informed O that these offenders treasured collections on their computers and liked to store them and create backups. O also verified whether an active Internet connection was still being provided to the accused’s residence. He then drafted an information to obtain a search warrant (“ITO”) and, on January 10, a warrant was issued pursuant to s. 487 of the Criminal Code to search the accused’s computer. Pornographic pictures involving children were found on the computer and the accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code . At trial, he unsuccessfully challenged the validity of the search warrant under s. 8 of the Canadian Charter of Rights and Freedoms . The trial judge convicted the accused and the majority of the Court of Appeal upheld the conviction.
Held (Deschamps, Charron and Rothstein JJ. dissenting): The appeal should be allowed. The accused’s conviction is quashed and an acquittal is entered.
Per McLachlin C.J. and Binnie, Fish and Abella JJ.: The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1) . Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a “favourite” or an “icon” on one’s computer. In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under one’s control. It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession it must be shown that the file was knowingly stored and retained through the cache. An ITO seeking a warrant to search for evidence of possession, rather than accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched at the time the warrant is sought. Here, the search and seizure of the accused’s computer infringed his right under s. 8 of the Charter . Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search. The ITO did not allege the distinct and separate offence of accessing child pornography and, stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the “Favourites” menu of a Web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two “Lolita” links supports a reasonable inference that the accused browsed a Web site that contained explicit images of females under the age of 18, but this does not suffice to establish possession.
The misleading passages in the ITO that suggested that the technician had actually viewed illegal pornography on the computer, rather than suspiciously labelled “favourites”, must be excised. That pornographic images of children were actually seen on the computer is an entirely false claim. Aside from false statements, the ITO in several places gave an incomplete and misleading account of the facts, in contravention of the informant’s duty to make full and frank disclosure of all material information. The ITO does not mention, as the voir dire revealed, that the two “favourites” were “just scattered through the favourites” among additional links pointing to “regular adult material”. The failure to mention these facts creates a misleading impression. Once it is understood that the suspicious “Favourites” were in fact exceptions, found together with much more material that was undisputedly legal, the inference that the accused possessed illegal images becomes significantly less compelling. Furthermore, the descriptions of the webcam and its placement are juxtaposed immediately alongside the descriptions of the suspicious “Favourites” and the technician’s claims that he had “observed ‘Lolita Porn’”, clearly suggesting that the accused might have been making (and possessing) his own illegal pornography. The ITO, however, did not include a number of additional facts known to the police. First, the three‑year‑old child mentioned, but not identified, in the ITO was in fact the accused’s daughter. Second, the ITO stated that the accused was alone in the house with the girl, but failed to mention that his wife lived with them. Third, the ITO also failed to mention that the child was fully clothed, that there was no evidence of abuse, that the computer room had a child gate and appeared to double as a playroom for the child, and that the child was playing with the scattered toys in the middle of the room when the technician arrived. While the reviewing judge found no deliberate attempt to mislead, it is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time. It seems much more plausible that the accused was simply using the VCR and webcam to videotape his young daughter at play for posterity’s sake, rather than for any purpose connected to child pornography.
To conclude that evidence of possession would be found four months after the hard drive was erased, one must accept either that the accused had made external copies of illegal images present in the computer before formatting its hard drive or that he acquired additional illegal images after the formatting. While the ITO seeks to establish inferences based on the likely behaviour of the accused on the basis of generalizations made by B and H about the propensities of certain “types of offenders” to hoard and copy illegal images, the ITO does not establish either the veracity of the generalization about the alleged “type of offender”, or that the accused is in fact the “type” to which the generalization might have applied. The ITO contains no evidentiary material in this regard apart from the bald assertion of the two police officers and there is virtually nothing to describe, let alone establish, the expertise of the officers. Moreover, the class of persons to whom specific proclivities are attributed is defined so loosely as to bear no real significance. There is no reason to believe, on the basis of the information in the ITO as amplified, that all child pornography offenders engage in hoarding, storing, sorting, and categorizing activity. To permit reliance on broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu of evidence. It is not the role of courts to establish by judicial fiat broad generalizations regarding the “proclivities” of certain “types” of people, including offenders. Matters of this sort are best left to be established by the Crown, according to the relevant standard — in this case, reasonable grounds for belief. Here, two suspiciously labelled links in the “Favourites” do not suffice to characterize a person as an habitual child pornography offender of the type that seeks out and hoards illegal images. The fact that the bulk of the pornographic material that the technician observed at the accused’s house was legal adult pornography suggests that the accused did not have a “pronounced” interest in child pornography.
The presence of the webcam, which was functioning as a camcorder recording to a VCR, has only a tenuous relation to the crime alleged. While it may be true that the accused was adept at recording videotapes and storing the tapes for future use — as is nearly everyone who owns a camcorder — this says nothing about his propensity to store a different kind of image (child pornography), in a different medium (a computer, as opposed to videotape), acquired in a different manner (downloading, as opposed to filming). To draw an inference that he is of the type to hoard illegal images is to speculate impermissibly. Nor does the accused’s conduct after the technician’s visit support the conclusion that he was the sort of person to seek out and hoard child pornography. The accused might well have tidied up the room and formatted his computer simply to avoid further embarrassment from having an outsider see the disorderly state of his home and the evidence of his consumption of pornography on his computer. The accused’s conduct might raise suspicions but, as a matter of law, mere suspicion is no substitute for reasonable grounds.
The evidence obtained as a result of the illegal search should be excluded under s. 24(2) of the Charter . When the three relevant factors are balanced, admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute. The trial judge found no deliberate attempt to mislead and no deliberate misconduct on the part of the officer who swore the ITO, but the repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if criminal trials were permitted to proceed on the strength of evidence obtained from the most private “place” in the home on the basis of misleading, inaccurate, and incomplete ITOs upon which a search warrant was issued. The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.
Per Deschamps, Charron and Rothstein JJ. (dissenting): A specific intention to deal with the object in a particular manner is not an element of the offence of possession of child pornography. Sections 4(3) and 163.1(4) of the Criminal Code indicate that possession of child pornography is criminal in and of itself, irrespective of the use to which the accused intends to put the prohibited material. The requisite mens rea will be established at trial if it is shown that the accused willingly took or maintained control of the object with full knowledge of its character. The accused does not need to have control in a place belonging to him or her, such as his or her hard drive. The provision simply requires the material to be “in any place” for the use or benefit of the accused. Therefore, even if an accused does not actually download offending material, possession is established if the accused has control over the material for his or her use or benefit or for that of someone else. When applying for a search warrant, it is sufficient that there be credible evidence to support a reasonable belief that the search will provide evidence of commission of the offence.
Although the ITO could have been more elaborate in many respects, the omissions the accused complains of do not support a conclusion that the ITO was so deficient that it did not provide the authorizing judge with a sufficiently credible factual basis. The information concerning the presence of the child, the toys, and the webcam was necessary to convey to the authorizing judge the technician’s concerns about the safety of the child. From this perspective, the facts that the accused was the child’s father and that he resided with his wife, which were not mentioned in the ITO, were not determinative since, in the technician’s mind, what was at stake was the safety of a child. The references in the ITO to the removal of child pornography from the accused’s computer cannot be characterized as false. Viewed in context, there is no question that what had, according to the technician, been removed from the computer were the links in the “favourites” list to child pornography. Therefore the authorizing judge must have understood this to be the case. Since there is no indication that the allegations or references were meant to mislead or were so lacking in informational context, they should not be expunged from the ITO.
It was neither inappropriate nor erroneous to rely on the information provided by officers B and H about the propensity of child pornography offenders to collect and hoard such materials. This propensity, which seems to be notorious, has been accepted in numerous child pornography cases as part of the factual backdrop giving rise to reasonable grounds for issuing search warrants. While more contextual information on both the subject matter and the source would have made it easier to understand and assess the officers’ statements, there is no indication that they were not qualified or that there was any intention to mislead. Consequently, it was open to the reviewing judge to receive evidence which amplified the information and conclude that the authorizing judge was provided with sufficient evidence. The positions the officers held in their respective forces were also enough to support a conclusion that their statements had sufficient probative value to be included in the ITO. Lastly, the officers did not state that the accused was a habitual child pornography offender. The conversations between O and the other officers took place several months after the technician’s visits, and they related to what material might be found in the computer and whether material would still be found there despite the time elapsed between the visits and the swearing of the ITO. These are facts that O had to put before the authorizing judge.
Although there was a four‑month delay between the technician’s visits and the swearing of the ITO, it was reasonable for the authorizing judge to conclude that the accused still had the computer in question in his residence and that any “child pornography” was still in the house. There was adequate information in the ITO about the storage of the materials, and no reason to presume that the accused would have changed his computer after the visits and no indication that the computer was in any way in need of being replaced. It was therefore appropriate for O to rely on common sense and on the ongoing subscription to an Internet connection to support his allegation that the computer was still in the accused’s residence. The police officers’ statements concerning the proclivity of child pornography users to save and collect such material could also serve as a basis for concluding that it was reasonable to believe that, if the accused was this type of offender, evidence of the offence would still be found in the computer after four months.
In this case, the facts alleged in the ITO, as amplified at the voir dire, were sufficient for the reviewing judge to conclude that there was a basis for the authorizing judge’s decision to issue the warrant. The facts that there were several links to both adult and child pornography in the “favourites” list and that a “graphic” pornographic image was prominently displayed on the computer justified the authorizing judge’s drawing the reasonable inference that the accused had a conspicuous interest in this type of material. The position of the camera and the fact that it was connected to a videotape recorder at the time of the technician’s first visit, together with the presence of both labelled and unlabelled videotapes, showed that he was interested in reproducing images, accumulating such material, and keeping it for his future use. The accused’s desire not to arouse suspicion with respect to his reproduction of images or his computer practices could reasonably be inferred from his actions after being informed that the technician needed to return. There was a credibly based probability that the accused was in the habit of reproducing and saving images and had a propensity to pornography, and more specifically to child pornography. While the police officers’ statements could not be used to demonstrate that he was a type of person who was likely to be in possession of child pornography, given that there is credible independent evidence of this, they do shed light on the implications of that evidence. In these circumstances, the statements that child pornography offenders are collectors could only make it more likely that evidence of the possession of prohibited material would still exist at the time the ITO was drafted.
Cases Cited
By Fish J.
Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; referred to: Beaver v. The Queen, [1957] S.C.R. 531; R. v. Panko (2007), 52 C.R. (6th) 378; R. v. Weir, 2001 ABCA 181, 95 Alta. L.R. (3d) 225; R. v. Daniels, 2004 NLCA 73, 242 Nfld. & P.E.I.R. 290; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Fawthrop (2002), 161 O.A.C. 350; United States v. Weber, 923 F.2d 1338 (1990); United States v. Terry, 522 F.3d 645 (2008); R. v. Graham, 2008 PESCAD 7, 277 Nfld. & P.E.I.R. 103.
By Deschamps J. (dissenting)
R. v. Debot, [1989] 2 S.C.R. 1140; Baron v. Canada, [1993] 1 S.C.R. 416; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Illinois v. Gates, 462 U.S. 213 (1983); R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; R. v. York, 2005 BCCA 74, 193 C.C.C. (3d) 331; R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448; R. v. Terrence, [1983] 1 S.C.R. 357; R. v. Hess (No. 1) (1948), 94 C.C.C. 48; Beaver v. The Queen, [1957] S.C.R. 531; R. v. Weir, 2001 ABCA 181, 95 Alta. L.R. (3d) 225; R. v. Daniels, 2004 NLCA 73, 242 Nfld. & P.E.I.R. 290; R. v. Neveu, 2005 NSPC 51, 239 N.S.R. (2d) 59; R. v. Fawthrop (2002), 161 O.A.C. 350; United States v. Gourde, 440 F.3d 1065 (2006); United States v. Martin, 426 F.3d 68 (2005); United States v. Shields, 458 F.3d 269 (2006); Davidson v. United States, 213 Fed.Appx. 769 (2006); United States v. Falso, 544 F.3d 110 (2008); United States v. Perrine, 518 F.3d 1196 (2008); R. v. Mohan, [1994] 2 S.C.R. 9; R. v. J.‑L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Graham, 2007 CarswellPEI 80, aff’d 2008 PESCAD 7, 277 Nfld. & P.E.I.R. 103; United States v. Terry, 522 F.3d 645 (2008); R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 4(3) , 163.1(4) , (4.1) , (4.2) , (6) , 487 .
Authors Cited
Akdeniz, Yaman. Internet Child Pornography and the Law: National and International Responses. Burlington, Vermont: Ashgate, 2008.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, p. 3581.
Howard, Ty E. “Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files” (2004), 19 Berkeley Tech. L.J. 1227.
Luehr, Paul H. “Real Evidence, Virtual Crimes: The Role of Computer Forensic Experts” (2005‑2006), 20 Crim. Just. 14.
Marin, Giannina. “Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You?” (2008), 60 Fla. L. Rev. 1205.
Michaels, Rebecca. “Criminal Law — The Insufficiency of Possession in Prohibition of Child Pornography Statutes: Why Viewing a Crime Scene Should Be Criminal” (2008), 30 W. New Eng. L. Rev. 817.
Taylor, Max, and Ethel Quayle. Child Pornography: An Internet Crime. London: Routledge, 2003.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Jackson, Richards and Hunter JJ.A.), 2008 SKCA 62, 310 Sask. R. 165, 423 W.A.C. 165, 233 C.C.C. (3d) 465, 172 C.R.R. (2d) 167, [2008] 7 W.W.R. 191, [2008] S.J. No. 300 (QL), 2008 CarswellSask 300, upholding the accused’s conviction. Appeal allowed, Deschamps, Charron and Rothstein JJ. dissenting.
Aaron A. Fox, Q.C., and Jeffrey Beedell, for the appellant.
Anthony B. Gerein, for the respondent.
The judgment of McLachlin C.J. and Binnie, Fish and Abella JJ. was delivered by
Fish J. —
I
[1] This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure. And it relates, more particularly, to the search and seizure of personal computers.
[2] It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.
[3] First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.
[4] That is precisely the kind of search that was authorized in this case. And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete. The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant. In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time.
[5] Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search. Stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the “Favourites” menu of a Web browser — on a computer that was subsequently formatted, deleting both links.
[6] The ITO alleged that the appellant was then in possession of child pornography and that there were reasonable and probable grounds to believe that “the said material, or some part of them [sic] are contained inside the computer”. I emphasize from the outset that the ITO did not allege the distinct and separate offence of accessing child pornography, either when the ITO was sworn or four months earlier, before the computer was formatted.
[7] As we shall see, the essential elements of the alleged offence, the time of its alleged commission, and the complete lack of evidence that there was child pornography in the computer when the ITO was sworn all underscore the manifest inadequacy of the ITO and the unreasonableness of the search that ensued.
[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.
[10] Unlike Justice Deschamps and with the greatest of respect, I am satisfied that the record discloses no reasonable and probable grounds for the search and seizure of the appellant’s computer. I agree with Richards J.A., dissenting in the Court of Appeal, that the search and seizure therefore infringed the appellant’s constitutional right, under s. 8 of the Canadian Charter of Rights and Freedoms , “to be secure against unreasonable search or seizure”.
[11] Applying the test recently set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I believe we are bound, in virtue of s. 24(2) of the Charter , to exclude the evidence thus obtained. In the absence of this illegally obtained evidence, the appellant could not reasonably have been convicted. Accordingly, like Justice Richards, I would allow the appeal, set aside the appellant’s conviction, and enter an acquittal in its place.
II
[12] The search warrant in this case was issued on the strength of an Information alleging that the appellant was then in possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 . The Information alleged as well that the pornographic materials in question were “contained inside” the appellant’s personal computer.
[13] The threshold question on this appeal is whether the justice of the peace who issued the search warrant acted on reasonable and probable grounds, as required under both the Criminal Code and the Charter . To answer that question, it is necessary to first understand when one may properly be said to “possess” an image in a computer, within the meaning of s. 163.1 of the Criminal Code .
[14] In my view, merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1(4.1) of the Criminal Code .
[15] For the purposes of the Criminal Code , “possession” is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
[16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.
[17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (Criminal Code, s. 4(3) (a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.
[18] Here, the appellant is alleged to have had possession of digital images in a computer, rather than tangible objects. The law of possession, however, developed in relation to physical, concrete objects. Its extension to virtual objects — in this case, images stored as digital files and displayed on computer monitors — presents conceptual problems. Unlike traditional photographs, the digital information encoding the image — the image file — can be possessed even if no representation of the image is visible. Likewise, even if displayed on a person’s computer monitor, the underlying information might remain firmly outside that person’s possession, located on a server thousands of kilometres away, over which that person has no control.
[19] Essentially, there are thus two potential “objects” of possession of an image in a computer — the image file and its decoded visual representation on-screen. The question is whether one can ever be said to be in culpable possession of the visual depiction alone, or whether one can only culpably possess the underlying file. Canadian cases appear implicitly to accept only the latter proposition: That possession of an image in a computer means possession of the underlying data file, not its mere visual depiction.
[20] Three Canadian appellate decisions illustrate the point.
[21] In R. v. Panko (2007), 52 C.R. (6th) 378, the Ontario Superior Court of Justice held that possession might be established on the basis of icons on the desktop that pointed to illegal images stored on the computer’s own hard drive.
[22] In R. v. Weir, 2001 ABCA 181, 95 Alta. L.R. (3d) 225, the Alberta Court of Appeal confirmed the validity of a search warrant obtained on information that prohibited images were attached to an e-mail message received by the accused but not yet opened. The court rejected the submission that the search warrant had been issued for an anticipated offence because it was a reasonable inference that the files would have already been downloaded onto the accused’s computer at the time the warrant was authorized.
[23] Finally, in R. v. Daniels, 2004 NLCA 73, 242 Nfld. & P.E.I.R. 290, the Newfoundland and Labrador Court of Appeal found that possession began at the moment the accused began downloading the illegal image files to his hard drive, even though the download was interrupted and the images were never viewed.
[24] In all three cases, the courts proceeded on the understanding that the object illegally possessed by the accused was the image file, not a visual display or rendering of the image.
[25] This is a sensible interpretation for a number of reasons. First, and most important, because Parliament, in s. 163.1(4.1) of the Criminal Code , has made accessing illegal child pornography a separate crime, different from possession. In virtue of s. 163.1(4.2) , a person accesses child pornography by “knowingly caus[ing the] child pornography to be viewed by, or transmitted to, himself or herself”.
[26] Parliament’s purpose in creating the offence of accessing child pornography, as explained by the then Minister of Justice, was to “capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic” (Hon. Anne McLellan, House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, at p. 3581).
[27] What made a charge of possession “problematic”, of course, is that possessing a digital file and viewing it are discrete operations — one could be criminalized without also criminalizing the other. In the case of child pornography, Parliament has now criminalized both. But viewing and possession should nevertheless be kept conceptually separate, lest the criminal law be left without the analytical tools necessary to distinguish between storing the underlying data file and merely viewing the representation that is produced when that data, residing elsewhere, is decoded. The ITO here is specifically limited to allegations of possession pursuant to s. 163.1(4) of the Criminal Code (ITO, preamble and paras. 2, 4 and 16).
[28] Interpreting possession to apply only to the underlying data file is also more faithful to a traditional understanding of what it means to “possess” something. The traditional objects of criminal possession — for example, contraband, drugs, and illegal weapons — are all things that could, potentially at least, be transferred to another person.
[29] Without storing the underlying data, however, an image on a screen cannot be transferred. The mere possibility of sharing a link to a Web site or enlarging the visual depiction of a Web site, as one could “zoom in” on a TV screen image, is insufficient to constitute control over the content of that site. It is indeed the underlying data file that is the stable “object” that can be transferred, stored, and, indeed, possessed. More broadly, the object possessed must itself have some sort of permanence.
[30] Thus, while it does not matter for the purposes of criminal possession how briefly one is in possession of the object, the thing said to be culpably possessed cannot — like a broadcast image flickering across a TV screen or a digital image displayed transiently on-screen — be essentially evanescent.
[31] Plainly, the mere fact that an image has been accessed by or displayed in a Web browser does not, without more, constitute possession of that image. An ITO seeking a warrant to search for evidence of possession (rather than accessing) must therefore provide reasonable and probable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched. It is not enough to provide reasonable and probable grounds to believe that the alleged offender viewed or accessed illegal images using a computer, without knowingly taking possession — which includes control — of the underlying files in some way.
[32] In applying these principles to the facts of this case, I take care not to be understood to have circumscribed or defined constructive possession of virtual objects. I leave open the possibility, for example, that one could constructively possess a digital file without downloading it to his or her hard drive, using for example a Web‑based e‑mail account to store illegal material.
[33] In short, my purpose here is not to say what constructive possession of virtual objects necessarily is, but rather what it manifestly is not. Plainly, in my view, previous access and the possibility of again accessing a Web site that contains digital images, located on a distant server over which the viewer has no control, do not constitute — either alone or together — constructive possession. However elastic the notion of constructive possession may be, to stretch it that far is to defy the limits of its elasticity.
[34] For the sake of greater clarity, I turn now to consider how this understanding of possession applies to files in an Internet cache (that is, copies of files automatically stored on the hard drive by a Web browser).
[35] When accessing Web pages, most Internet browsers will store on the computer’s own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a “caching function” and the location of the temporary, automatic copies is known as the “cache”. While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size.
[36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.
[37] In the present case, the charge is not based on the appellant using his cache to possess child pornography. It is hardly surprising as most computer users are unaware of the contents of their cache, how it operates, or even its existence. Absent that awareness, they lack the mental or fault element essential to a finding that they culpably possess the images in their cache. Having said that, there