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CRIMINAL CODE OFFENCES - Offences tending to corrupt morals - Child pornography

Wednesday, February 19, 2020 @ 8:23 AM  

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Appeal by McSweeney from his convictions for possession and distribution of child pornography. Nine officers executed a search warrant for the appellant’s residence after determining child pornography had been uploaded to a social networking site by a subscriber at the appellant’s address. The appellant and his family were sequestered in the living room. The investigating officer conducted a recorded interview with the appellant on the porch without cautioning the appellant. The officer asked if there was someone else he should be questioning. The appellant responded they both knew it was himself. The appellant was arrested and taken to the police station. A second recorded interview was conducted after the appellant spoke with duty counsel. The appellant again indicated no one else in the house was involved. The trial judge admitted both statements.

HELD: Appeal allowed; new trial ordered. In determining whether the appellant was detained at his residence, the trial judge erred in failing to apply the objective test to determine whether a reasonable person in the appellant’s circumstances would conclude that he or she had no choice but to comply. The appellant was detained. His s. 10(b) of the Canadian Charter of Rights and Freedoms (Charter) right was infringed when he was not informed of his right to counsel before his arrest and before giving his pre-arrest statement. There was a temporal, contextual and causal nexus between the first and second statements. Informing the appellant of his rights and providing access to duty counsel did not remove the taint of the initial Charter infringement or sever the nexus between the two statements. The Charter infringement and its impact were serious. The evidence was reliable but not critical to the Crown’s case. The statements were excluded.

R. v. McSweeney, [2020] O.J. No. 32, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty and M.H. Tulloch JJ.A., January 7, 2020. Digest No. TLD-February172020003