Ontario Court of Appeal acquits man of CSAEM offences upon excluding computer evidence

In a tip from the US National Center for Missing and Exploited Children, the Waterloo Regional Police Service learned that an IP address in Cambridge, Ontario, had uploaded a CSAEM image. 

On Feb. 27, 2017, police executed a search warrant for the home of the appellant in R. v. Gauthier, 2026 ONCA 569. Officers searched for around six hours and found a CSAEM image on his electronic device. 

While police detained and questioned the appellant and his partner during the search, officers did not properly inform the men of their right to counsel. 

After the search, police discovered additional CSAEM material on two devices seized from the residence. 

Weeks later, officers arrested the appellant, took him to the police division, and conducted a routine strip search. 

The appellant applied to exclude all evidence seized at his home and all statements made to police. He alleged that: 

• The search warrant was invalid 
• Officers breached his rights under ss. 7, 8, (10)(a), and 10(b) of the Canadian Charter of Rights and Freedoms by detaining him during the search of his residence and by strip-searching him at the police division 

Trial judgment

In an oral ruling on Nov. 24, 2023, a judge of the Ontario Court of Justice refused to exclude the physical evidence. 

However, the trial judge excluded the appellant’s statements to police during the home search. The judge found that: 

• The home search violated the appellant’s s. 10(b) rights because police failed to inform him properly of his right to counsel immediately upon detaining him 
• The strip search breached s. 8 

On Nov. 29, 2023, the trial judge released supplementary reasons to explain why she did not exclude the physical evidence. 

Ontario Court of Appeal orders acquittal

The appellant appealed from his convictions for CSAEM offences, entered on Feb. 16, 2024. 

Among other arguments, the appellant asserted that the trial judge erred in failing to exclude the computer evidence under s. 24(2) of the Charter and in overemphasizing the role of discoverability. 

The Ontario Court of Appeal allowed the appeal, quashed the convictions, and acquitted the appellant on all counts.

Error in principle found

The appeal court ruled that the trial judge erred in principle by failing to consider the unconstitutional strip search in her analysis of the breach’s seriousness at the first step of the test in R. v. Grant, 2009 SCC 32. 

The appeal court explained that the trial judge should have weighed the s. 8 Charter breach in her s. 24(2) admissibility inquiry. 

Computer evidence excluded

Given this error, the appeal court conducted a fresh exclusionary analysis under s. 24(2). Based on its assessment, the appeal court ordered the exclusion of the computer evidence seized from the appellant’s home. 

“The breaches in this case were serious and disclosed a complete lack of understanding of long-established constitutional standards,” stated the appeal court ruling. “Their impact on the accused’s Charter-protected interests was also significant.” 

Discoverability v. causal connection

While discoverability and the lack of causal connection could weaken a breach’s impact on an accused’s Charter-protected interests, the appeal court emphasized that discoverability and causal connection were distinct concepts with different applications in the Grant inquiry. 

The appeal court explained that: 

• Discoverable evidence referred to unconstitutionally obtained evidence that police could have obtained in compliance with constitutional law, with an example being evidence officers seized during an unconstitutional warrantless search, where they otherwise had grounds to get a warrant 
• Causal connection covered evidence obtained due to the breach 

“Breaches that occur after the discovery of evidence (such as the s. 8 breach in this case) cannot have a causal connection to the evidence because those breaches are entirely unrelated to its discovery,” stated the appeal court ruling. “Similarly, as in this case, where the police acted with lawful authority to seize evidence with a warrant, the incidence of other breaches, such as the s. 10(b) breach, will have no causal connection to the obtaining of the evidence.” 

Issues not considered

Given its exclusion of the computer evidence, the appeal court found it unnecessary to answer the questions of whether to disregard the supplementary reasons and whether the police’s receipt and use of the IP address breached s. 8. 

Ontario Court of Appeal’s other criminal cases

Here are some other criminal law decisions from the Court of Appeal for Ontario. 

On July 23, the appeal court allowed the Alliance of Canadians Combatting Antisemitism to intervene in the Crown’s appeal against a man’s acquittal for public incitement of hatred relating to inflammatory and derogatory statements made in videos posted online. 

On Feb. 26, the appeal court declined to order the disclosure of materials requested by Alek Minassian, who sought to adduce fresh evidence on appeal of his conviction for 10 counts of murder and 16 counts of attempted murder. 

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