Nathan's Case — Child Pornography — Cross-examination

Between
Her Majesty the Queen, and
Nathan L.

Ontario Court of Justice
Newmarket, Ontario
Judge R. Blouin

Cross-examination (excerpt):  27-28 March 2006
(54 paras.)

[Note to Reader:  What are the grounds to obtain a search warrant? A police officer seeking a search warrant must believe three things: (i) that a criminal offence has been committed; (ii) that "items" connected with the offence exist; and (iii) that these items will be found at a particular address. These three beliefs must be reasonable. I call this the search warrant trilogy. In Nathan's case, the officer conceded that she did not have these beliefs. This portion of the transcript is from the afternoon of the first day. Here, I establish that the officer understood these three requirements.]

¶ 1     MR. PENNEY:  ... I gather you are familiar with the basic requirements of a search warrant — the grounds that are necessary for you to obtain a search warrant? Correct? You are nodding yes?

¶ 2     OFFICER:  Yes.

¶ 3     MR. PENNEY:  Thank you so much Officer.

¶ 4     OFFICER:  Sorry, yes.

¶ 5     MR. PENNEY:  And one is you have to have reasonable and probable grounds to believe there is an offence, correct? Reasonable and probable grounds that items exist? Thirdly, reasonable and probable grounds that the items exist at a specific address?

¶ 6     OFFICER:  Yes.

[Note to Reader:  In this part of the cross-examination, I establish the following. Even though the police officer believed that Nathan had purchased access to a website containing child pornography, the officer had no basis for believing (i) that Nathan made the purchase knowing there was child pornography on that website, (ii) that Nathan accessed any child pornography, and (iii) that Nathan downloaded child pornography. As you read this, keep in mind that the officer had sworn before a Justice that she believed that Nathan had possessed child pornography.]

¶ 7     MR. PENNEY:  ... if someone buys a membership you are going to draw a reasonable inference that he is going to access right?

¶ 8     OFFICER:  Yes.

¶ 9     MR. PENNEY:  That he has spent the money — why not go and use it?

¶ 10     OFFICER:  Yes.

¶ 11     MR. PENNEY:  ... you don't know that this is a person that has a mindset — I am going looking for child pornography, correct?

¶ 12     OFFICER:  Yes.

¶ 13     MR. PENNEY:  Although you can certainly draw a reasonable inference, in my submission, that you know a person who spent $79.00 Canadian ... on access to a website probably wants to have access to the website and probably is going to follow through?

¶ 14     OFFICER:  Yes.

¶ 15     MR. PENNEY:  Reasonable inference, but you don't know what in fact he is looking for in terms of child pornography or anything else correct?

¶ 16     OFFICER:  Yes.

¶ 17     MR. PENNEY:  So, you can draw an inference that he is going to access that site? But you don't know if, in fact, he even viewed any child pornography on the site correct? Because you don't know how many web pages are on the site? Correct?

¶ 18     OFFICER:  No.

¶ 19     MR. PENNEY:  Or how many pages he has to click through to go through? So, you don't know what images he saw? Even if he saw any images of child pornography, correct?

¶ 20     OFFICER:  Yes.

¶ 21     MR. PENNEY:  ... then you certainly don't know whether he downloaded any? You don't know whether this is a person saying wow I hit the jackpot? You don't know if you are dealing with that kind of person or someone that is completely disgusted by what they are seeing on the screen and immediately shutting down their computer? Correct?

¶ 22     OFFICER:  Yes.

¶ 23     MR. PENNEY:  Could be one? Could be the other? You have no basis for believing that this particular subscriber is one type of user as type as opposed to another type of user correct?

¶ 24     OFFICER:  No.

¶ 25     MR. PENNEY:  You certainly have no basis for believing he saved any images of child pornography correct?

¶ 26     OFFICER:  No.

[Note to Reader:  We are now into the second day of the cross-examination. Here, I establish two things:  firstly, that the officer had no reasonable belief that Nathan possessed any child pornography from the date that he purchased the membership (28 May 2003) up to and including the date of the search warrant (10 March 2005); and, secondly, that the officer had no reasonable belief that there were any "items" to be searched for.]

¶ 27     MR. PENNEY:  And you have already indicated to His Honour that you didn't have reasonable and probable grounds to believe that Nathan downloaded or possessed any items on May 28th, 2003? Correct?

¶ 28     OFFICER:  Correct.

¶ 29     MR. PENNEY:  All right. And you certainly had no grounds to believe that he collected anything after May 28th, 2003? Correct?

¶ 30     OFFICER:  Correct.

¶ 31     MR. PENNEY:  All right, so it would stand to reason that you had no reasonable and probable grounds to believe that he was in possession of [child pornography] items on March 9th, 2005? Correct?

¶ 32     OFFICER:  Correct.

¶ 33     MR. PENNEY:  All right. And I gather, given those answers, you could not have reasonable and probable grounds to believe that there are any items in existence concerning his activity on May 28th, 2003.

¶ 34     OFFICER:  Sorry can you repeat the question?

¶ 35     MR. PENNEY:  The question concerns the second ground of the search warrant trilogy.

¶ 36     OFFICER:  Yes.

¶ 37     MR. PENNEY:  Whether any items existed? Correct? That suggesting that you don't have reasonable and probable grounds to believe that any items exist with respect to the offence — [an offence] that you say you didn't have reasonable and probable grounds to believe was committed.

¶ 38     OFFICER:  I have reasonable belief. I just — maybe not reasonable or probable grounds that he went through this process to get these images.

¶ 39     MR. PENNEY:  ...you certainly have reasonable and probable grounds that he subscribed on May 28th, 2003. We went through that yesterday?

¶ 40     OFFICER:  Yes.

¶ 41     MR. PENNEY:  You certainly have reasonable and probable grounds that he spent this money and made this purchase because he is interested in viewing the website correct?

¶ 42     OFFICER:  Yes.

¶ 43     MR. PENNEY:  ...by March 9th, 2005, you have reasonable and probable grounds to believe that he is a subscriber?

¶ 44     OFFICER:  Yes.

¶ 45     MR. PENNEY:  I asked you a series of questions yesterday concerning your reasonable and probable grounds regarding, number one, his intent going into the site. Correct?

¶ 46     OFFICER:  Yes.

¶ 47     MR. PENNEY:  And what he might have been looking for? Correct?

¶ 48     OFFICER:  Yes.

¶ 49     MR. PENNEY:  And whether, in fact, he did even see any pornography when he went into the members' section correct?

¶ 50     OFFICER:  Yes.

¶ 51     MR. PENNEY:  All right. Now, I don't want to go over all those questions again because you have given the answers and His Honour is listening carefully ... do you now want to change your answers to any of these questions because I do want to be fair to you?

¶ 52     OFFICER:  No.

¶ 53     MR. PENNEY:  You have given all of those answers and you have just indicated to His Honour that you had no reasonable and probable grounds to believe that he was in possession on May 28th, 2003, March 10th, 2005, or any date in between? Correct? That is the answer you just gave His Honour.

¶ 54     OFFICER:  Yes.

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