or information that comes from a source which is generally credible and reliable
can provide some evidence which an issuing justice could rely on to issue a search
warrant. The standard is reasonableness, not certainty. Information from a large
corporation like Microsoft may be reasonably believed.
The trial judge also erred by substituting her own views on whether a search
warrant should have been issued, rather than considering whether the issuing justice could have issued the search warrant with the amplification evidence.
The affiant of the information to obtain the search warrant was not required
to include in the ITO the “disclaimer” in the NCMEC report that NCMEC does
not investigate and cannot verify the accuracy of the information provided to
NCMEC and that the report was not to be used as evidence of criminal wrongdoing.
The disclaimer was not material as it was designed to protect NCMEC from
criminal liability. The “criminal wrongdoing” referred to in the disclaimer is the
criminal wrongdoing of NCMEC in possessing and distributing child
pornography. The affiant made it clear that NCMEC acts as a “clearing house” of
information. The disclaimer was immaterial to the reliability of the information
in the NCMEC report.
The affiant testified that Microsoft uses computer software called PhotoDNA to
identify child pornography and that in his experience PhotoDNA is reliable and
not subject to human error. The trial judge erred by requiring verification as to the
accuracy of the use of PhotoDNA when the only expert evidence was that it was
developed by Microsoft and used by Microsoft and other service providers and
there was no evidence to the contrary. In any event, the trial judge erred in considering the lack of verification as to the use of PhotoDNA to be material.
The information in the NCMEC report was not stale despite the fact that the
warrant was executed seven or eight months after the child pornography was
uploaded. In finding that the information was stale, the trial judge failed to pay
sufficient deference to the affiant’s ability to draw inferences and make
deductions as a police officer and as an expert in online cloud storage and Internet
The trial judge erred in finding that the N. Street search undermined the
grounds for the search of the accused’s residence. After the N. Street search there
was still evidence that child pornography had been uploaded from an IP address
associated with the accused’s residence using the e-mail address reported by
Microsoft. Nothing the police learned during the N. Street search negated or even
undermined that evidence.
The only violation of s. 8 of the Charter was the failure to use a search warrant
to obtain the customer information. As the trial judge found, that violation alone
was not serious and did not warrant excluding the evidence under s. 24(2) of the
Cases referred to
Illinois v. Gates, 462 U.S. 213 (1983); R. v. Araujo,  2 S.C.R. 992, 
S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, 143 B.C.A.C. 257,
149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1; R. v. Caissey, 
3 S.C.R. 451,  S.C.J. No. 66, 2008 SCC 65, 99 Alta. L.R. (4th) 199, 237 C.C.C.
(3d) 289, 299 D.L.R. (4th) 432, 382 N.R. 198,  2 W. W.R. 1, 446 A.R. 397, affg
 A.J. No. 1342, 2007 ABCA 380, 227 C.C.C. (3d) 322, 299 D.L.R. (4th) 432,
 4 W. W.R. 100, 84 Alta. L.R. (4th) 226, 422 A.R. 208; R. v. Campbell, 
2 S.C.R. 549,  S.C.J. No. 32, 2011 SCC 32, 237 C.R.R. (2d) 327, 279 O.A.C. 52,
418 N.R. 1, 271 C.C.C. (3d) 193, 335 D.L.R. (4th) 592, 85 C.R. (6th) 229, affg