2016 ONSC 713

In 2016 ONSC 713, Mr. P, a 30-year-old man, was charged with sexual assault, sexual touching, invitation to sexual touching, breach of probation, possession of child pornography, and making child pornography, in relation to Ms. B, a 14-year-old girl.

Mr. P brought an application to exclude evidence seized from this mobile phone, including sexual images of Ms. B, due to an alleged violation of his right to be free from unlawful search and seizure.

The sexual relationship between Mr. P and Ms. B had been anonymously reported to the police. A police officer spoke with another person who provided information about the relationship, including that Mr. P’s phone may contain photos of Ms. B performing sexual acts on Mr. P. Up-on speaking with Ms. B the officer learned that Ms. B had deleted similar pictures on her cell-phone and that there had been sexual images of her on Mr. P’s phone at one point. The detective constable visited Mr. P’s mother’s home to see if she had her son’s phone. Upon discover-ing that Mr. P’s mother, Ms. P, had the phone, the officer told Ms. P she had to turn over Mr. P’s cell phone or she would be in possession of child pornography. The detective constable then got a warrant to search the content of the phone for the images, which were located on the phone.

The warrantless and non-consensual seizure of the cell phone was found to breach Mr. P’s Charter rights but the court did not find that it was a very serious infringement. Mr. P’s rights were not significantly breached because a warrant still needed to be obtained to access the images on the phone, and that the administration of justice would be brought into disrepute if the evidence was excluded. The evidence was found to be admissible.

Criminal Offence(s): Sexual Assault