Her Majesty the Queen v. Cusick
[Indexed as: R. v. Cusick]
2019 ONCA 524
Court of Appeal for Ontario, Juriansz, Watt and Harvison Young JJ.A.
June 24, 2019
Charter of Rights and Freedoms — Search and seizure — Service providers statutorily required to report to National Center for Missing and
Exploited Children (“NCMEC”) when they have knowledge of child pornography on their systems — Ontario police obtaining search warrant
for accused’s residence primarily on basis of NCMEC report — Police
not required to verify NCMEC information for accuracy — Affiant of
information to obtain (“ITO”) warrant not required to include in ITO
“disclaimer” in NCMEC report that NCMEC does not investigate or confirm information provided to it and that report was not to be used as
evidence of criminal wrongdoing — Disclaimer not material as it was
designed to protect NCMEC from criminal liability — NCMEC
information not stale despite fact that warrant was executed seven to
eight months after child pornography was uploaded — NCMEC report
reliable — ITO setting out sufficient basis for issuance of warrant.
The accused was charged with child pornography offences. The police obtained
and executed a search warrant for his residence largely on the basis of information
received through the National Center for Missing and Exploited Children
(“NCMEC”). Service providers are statutorily required to report to the
NCMEC “Cyber Tipline” when they have knowledge of child pornography on
their systems. Microsoft informed NCMEC that child pornography was
uploaded using two IP addresses that originated in Canada. After receiving
the NCMEC report, the Ontario police obtained customer information for both
IP addresses from the service provider pursuant to a law enforcement request.
When they executed the search warrant at one of the residences (the
“N. Street address”), they discovered that one of the persons living there was
a young person with autism who had been involved with child pornography
three years earlier. The young person admitted that he used the e-mail
address reported by Microsoft but denied uploading the child pornography.
They then executed the warrant for the accused’s residence and ultimately
found child pornography on his computer. None of the files matched the files
contained in the NCMEC report. The trial judge found that the accused’s
rights under s. 8 of the Canadian Charter of Rights and Freedoms were
violated when the police obtained identifying information from his service
provider without a warrant, but would not have excluded the evidence of the
child pornography if that had been the only s. 8 breach, as the police acted in
accordance with what they reasonably believed the law to be at that time. She
found that the issuing justice was misled as to the reliability of the information in the NCMEC report, that there was no reliable and credible evidence
connecting the accused’s IP address to any criminal activity, and that there
was no basis on which the warrant could issue. She excluded the evidence
and acquitted the accused. The summary conviction appeal judge allowed the
Crown’s appeal and entered a conviction. The accused appealed.
Held, the appeal should be dismissed.
The trial judge erred by finding that the police were required to check
with Microsoft to verify the information in the NCMEC report for accuracy. A tip