Cross-corroborating sources can boost ITO reliability

Mike Novakowski
December 07, 2014
By Mike Novakowski
The fact two informants provide similar information can enhance its reliability for use in an Information To Obtain (ITO) a search warrant. In R. v. K., 2014 MBCA 97 the accused's girlfriend called police after discovering child pornography on his family's computer. The accused had been house sitting at his parents' place and his girlfriend had found the materials while using the home computer under his user name. She showed her friend the images to confirm they were child pornography. Police obtained statements from the two women and subsequently applied for and executed a search warrant for the computer. Thousands of images of prepubescent females were found in three separate folders downloaded to the computer, including 140 images admitted to be child pornography.

The fact two informants provide similar information can enhance its reliability for use in an Information To Obtain (ITO) a search warrant.

In R. v. K., 2014 MBCA 97 the accused's girlfriend called police after discovering child pornography on his family's computer. The accused had been house sitting at his parents' place and his girlfriend had found the materials while using the home computer under his user name. She showed her friend the images to confirm they were child pornography.

Police obtained statements from the two women and subsequently applied for and executed a search warrant for the computer. Thousands of images of prepubescent females were found in three separate folders downloaded to the computer, including 140 images admitted to be child pornography.

In the Manitoba Court of Queen's Bench, the judge found the descriptions of what the women observed were sufficient to constitute reasonable grounds to believe that evidence of the offence of possession of child pornography would be found on the computer. The judge also noted that the information in the ITO was reliable because it was first-hand, detailed, corroborated between the two women on important and relevant issues and was provided by witnesses rather than unnamed informants.

The accused's application to quash the search warrant was dismissed, the evidence was admitted and he was convicted of possessing child pornography.

The accused challenged his conviction before the Manitoba Court of Appeal, arguing police breached his s. 8 Charter rights and the computer evidence should have been excluded under s. 24(2). In his view, the ITO was insufficient because there was no evidentiary basis for the issuing justice to conclude that the images viewed amounted to child pornography as defined in s. 163.1(1) of the Criminal Code.

The appeal court found the trial judge properly applied the standard of review for a search warrant. He did not substitute his opinion for that of the authorizing judge, but rather determined whether, on the basis of the evidence, the judge could have authorized the warrant. Justice Cameron, writing the judgment, stated:

While the images described by the girlfriend ultimately may or may not have led to a conviction for possession of child pornography under the Code, in my view, they constituted a sufficient basis for the issuing justice to have concluded that there were reasonable and probable grounds to believe that the accused was in possession of child pornography and that evidence with respect to that offence would be found on the computer [para. 10].

The ITO contained sufficient reliable evidence to support issuing a search warrant. As found by the trial judge, the fact the girlfriend's information was corroborated by her friend added to its reliability.

"Cross-corroboration of sources is a factor enhancing reliability and, therefore, enhancing reasonable grounds for belief," said Cameron.

However, the trial judge erred in holding that just because the two women were witnesses and not unnamed informants, their information was more credible and therefore more reliable. Cameron noted that information from a named source is not necessarily more reliable than an unnamed source. Despite this error, the information relied on for the search warrant was sufficiently reliable.

The search and seizure of the computer was not conducted in breach of s. 8, the evidence was admissible and the accused's appeal was dismissed.

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