A man charged with possession of child pornography is in the clear after key evidence was excluded from trial. The man, who The Progress is not naming because the charge has been dropped, complained that his Charter rights were violated when police seized his cellphone and home PC, and provincial judge Kristen Mundstock grudgingly agreed.
“The subject matter of the charge is horrific. The offence is one that society abhors and finds repugnant because it is an offence that victimizes children,” she said. “It goes without saying that judges do not want to render a prosecution useless by excluding key evidence, or the only evidence, of a serious offence. Having said that, I cannot ignore the seriousness of the police conduct and the impact of that conduct upon the accused’s Charter interests.”
Mundstock read out her decision at the Chilliwack Law Courts Wednesday (Dec. 21), going through the details of a case dating back to July 9, 2021. An RCMP constable was assigned an investigation based on two reports from the National Centre for Missing and Exploited Children. In both reports, a disturbing image was uploaded to the internet by a person with the accused’s name, using specific email addresses.
“The picture showed a bound and partially clad female in front of an upholstered couch,” said Mundstock, who described the image as horrific. “The female is looking over her shoulder and the expression on her face is one of pain or terror. She appears to by crying.”
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Based on the female’s facial features and body structure, the RCMP constable pegged her age between 12 and 14 years old. Looking into the accused’s circumstances, she found that he had five children in his home, including three females around that same age. Concerned that one of them might have been the subject of the photo, she pushed for the B.C. Ministry of Children and Family Development to get involved immediately.
Police accompanied a social worker to the man’s home the morning of July 12, 2021. They were worried that once he found out he was being investigated he would try to destroy evidence, so they took his cellphone and PC tower. The accused argued that both actions violated his Charter right to be secure against unreasonable search and seizure.
At the time, police admitted they didn’t have enough information for a search warrant, but they did believe they had ‘exigent circumstances,’ meaning there was an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure was delayed. They got the accused’s signature on a consent form that allowed them to search his home, but Mundstock ruled it wasn’t voluntary because he didn’t have the chance to talk to a lawyer, and a police officer had told him that if he didn’t consent, his home would be secured by police until an application for a search warrant was completed.
Ultimately, Mundstock concluded that police were operating on speculation and assumptions when they took the cellphone and computer, and they did not have the reasonable grounds they needed.
After the cellphone was examined, police allegedly found 20 images fitting the description of child pornography, making Mundstock’s decision all the more agonizing.
“I am not happy that I am in effect ending the prosecution of the accused for an offence of this nature,” Mundstock said. “But I must apply legal principles rather than rely upon my visceral reaction to the nature of the alleged offence and the disturbing images.”
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eric.welsh@theprogress.com
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