Case information

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Criminal law - Trial - Evidence - Search warrant - Whether the trial judge erred in holding that there was sufficient material before the Justice of the Peace to establish a reasonable belief that the Appellant’s computer contained child pornography and as a result the Appellant’s right to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter was infringed, the appeal should be allowed, the evidence excluded and an acquittal entered.

Adrien Hounjet (“Hounjet”) is a computer technician who attended the Appellant’s residence to install a high-speed Internet connection for a home computer on or about September 5, 2002. In the spare bedroom where the computer was located, Hounjet observed a web-cam on a tripod which was plugged into a VCR. The web-cam was pointed toward the three-year-old daughter of the Appellant who was playing with some toys on the floor. On the computer screen, Hounjet observed two icons on the computer desktop, one entitled “Lolita Porn” and one entitled “Lolita XXX”. As he could not complete the high-speed Internet connection that day, Hounjet returned the following day to complete the task and observed the following changes: the children’s toys were put away, the web-cam was turned toward the computer chair, and the computer hard drive had been formatted and all website links were removed from the desktop. It was not until mid-November 2002, that Hounjet raised concerns with anyone about what he had observed at the Appellant’s residence. The matter was first reported to the R.C.M.P. on November 18, 2002. An Information to Obtain a Search Warrant was sworn on January 10, 2003.

At trial, the Appellant challenged the validity of the search warrant and argued the information was so flawed the Justice of the Peace could not have been satisfied on reasonable and probable grounds to issue the search warrant. The trial judge concluded that there was sufficient evidence to allow the authorizing justice to grant the warrant. The Appellant was convicted of possession of child pornography. On appeal, the appeal was dismissed. Richards J.A. dissenting would have allowed the appeal on the basis that the trial judge erred in holding that there was sufficient material before the Justice of the Peace to establish a reasonable belief that the Appellant’s computer contained child pornography and as a result the Appellant’s right to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter was infringed.