Child Pornography Lawyer in Toronto

Potential Charter Issues

The use of judicial authorization and search warrants remains the cornerstone of police investigations into offences involving the possession, accessing, and distribution of child pornography. Warrants often permit the police to search computers, phones, and other digital devices, which contain some of our most private and personal information. Because of this, it is expected that the courts apply close scrutiny to make sure warrants are properly obtained and executed.

If the warrant is based on weak grounds, contains errors, or is carried out in a way that goes beyond what was authorized, a lawyer can challenge its validity. This challenge usually takes place under section 8 of the Charter, which protects against unreasonable searches and seizures. If the court finds that police crossed the line, the next question is whether the evidence should be excluded under section 24(2) of the Charter. Here, a lawyer will argue that the breach was serious, that it had a significant impact on your privacy, and that allowing the evidence to be used would undermine the fairness of the justice system.

In practical terms, this means your lawyer should carefully review the Information to Obtain (the sworn affidavit police file to get a warrant), test the strength of the grounds, and assess whether the search was conducted lawfully. If weaknesses in the warrant process are identified, critical evidence may be excluded, resulting in a complete dismissal of the charges.

1. Reasonable Grounds – Were They Really Established?

Courts have consistently stressed that electronic devices—such as cell phones, laptops, and tablets—attract the highest expectation of privacy, given the vast amount of personal and often intimate information they contain

Accordingly, when police want to search someone’s phone, computer, or other electronic device, they must first convince a judge that there are strong reasons to believe the device contains evidence of a crime. This is done through a written document called an “Information to Obtain” (ITO).

For a warrant to be valid, the ITO must set out detailed, credible, and objectively verifiable facts linking the alleged offence to the device in question. Bare assertions, speculation, or generalized statements about how such devices might typically store evidence will not suffice. For example, language in the ITO referring to the “suspected commission” of an offence or that evidence “may be” located in the residence” fails to meet the “reasonable grounds” standard.  If the ITO fails to meet this standard, the warrant may be found invalid, raising potential Charter s. 8 violations and opening the door to exclusion of evidence under s. 24(2).

2. Do You Have a Right to Privacy in Your IP Address?

If the search warrant or judicial authorization was obtained based on an IP address that police secured without judicial authorization, it may be argued that the search of the residence/computers was invalid.

In two recent cases, Canadian courts have confirmed that your IP address is not just a meaningless string of numbers—it is protected by the Charter right to privacy. In R. v. Bykovets (2024 SCC 6), the Supreme Court of Canada ruled that an IP address attracts a reasonable expectation of privacy under s. 8 of the Charter. The Court explained that an IP address is the “first digital breadcrumb” that can reveal highly personal information about a person’s online activity, identity, and private life. As such, police generally need judicial authorization before using it to investigate.

This reasoning was extended in a recent decision where the Ontario Superior Court considered whether an IP address provided to police by the National Child Exploitation Crime Centre (NCECC) was protected. The Crown argued that the NCECC was simply a “passive recipient” of information, but the Court rejected that view. Justice Schreck held that s. 8 rights were engaged as soon as the NCECC took possession of the IP address, noting that the value of an IP address lies in the private information it tends to reveal. Because of the formal, ongoing arrangement between law enforcement agencies, the Court found that this was state action, not a private citizen simply reporting a crime.

3. Nexus Between the Grounds and the Premises?

The ITO must establish a clear link between the offence that is under investigation and the place to be searched. If investigators could not show that the evidence will be found at the accused’s residence then the warrant may lack the necessary nexus, with the result being a section 8 Charter violation.

4. Was the Search Warrant Stale?

The affidavit filed by the police – referred to as the Information to Obtain (ITO) – for a search warrant must demonstrate that the evidence sought will be found at the location to be searched. If the underlying facts are too old (commonly referred to as “stale”) the grounds may no longer be reliable, resulting in a breach of s. 8 of the Charter of Rights and Freedoms.

Courts have repeatedly held that the passage of time can erode the nexus between the alleged offence and the place to be searched. If the information contained in the ITO is stale, the warrant may fail the reasonable and probable grounds test under s. 8, opening the door to exclusion of evidence under s. 24(2).

5. Was the search of the computer overly broad?

As a result of the vast amount of personal information contained in computers and digital devices, and the corresponding high expectation of privacy, Canadian courts have warned that police searches of digital devices must not turn into “fishing expeditions.” In other words, investigators cannot simply ask for a warrant that lets them rummage through everything on a computer in the hope of finding something useful. Instead, the warrant must be carefully limited: it should set out the specific crime under investigation, the categories of data the police are entitled to review, and the methods they can use. For example, if police are investigating fraud, a properly tailored warrant might allow them to look at financial records or emails from a certain time period, but not unrelated files like family photos or personal medical records. If the warrant is too broad or where police conduct exceeds its scope, the search may be found unconstitutional under s. 8 of the Charter, with resulting evidence vulnerable to exclusion.

6. Was a Returned to Justice filed by the police?

When police seize property under a search warrant, they must comply with strict accountability rules under the Criminal Code of Canada. Section 489.1(1) requires officers to bring the seized items before the justice who issued the warrant, or otherwise report back in a “return to justice” describing what was taken. This process is critical—it ensures transparency, allows the court to oversee the seizure, and protects the rights of the person whose property has been taken. If police fail to properly file a return to justice, questions arise about whether the seizure was lawful and whether the evidence should be excluded under section 8 of the Charter.

Criminal child pornography charges often also carry prohibitions on the use and access to electronic devices and/or contact with minors under the age of 16.