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| Patrick J Ducharme |
Continued from “School Searches (Part 4)”
The Supreme Court of Canada in Morelli6 set aside a conviction and entered an acquittal on a charge of possession of child pornography and held that merely viewing a web browser and images stored in a remote location on the Internet did not establish the level of control necessary to find possession. Possession of illegal images required possession of the underlying data files in some way. But more importantly, the court commented on the responsibility of police officers when their search relates to computer information.
The court first noted that, “it is difficult to imagine a search more intrusive, expansive, or invasive of one’s privacy than the search and seizure of a personal computer”. The court commented specifically on the special obligation of police officers applying for search warrants. The court made it clear that because these applications are made ex parte to a Justice there is a special obligation to be full fair and frank in the information that is provided. The court found the ITO 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”.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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