Nathan's Case — Possess Child Pornography — Dismissed

Client:  Nathan, Accused
Complainant:  York Regional Police
Charge:  Possess Child Pornography

Background:  Nathan and his dad were at my office. The police had executed a search warrant at their home, and had seized two computers. Both Nathan and his dad had spoken to the investigating officer before calling me. While they understood that Nathan was the target of a child-pornography investigation, they were under the (false) impression that the officer only wanted to "talk further." They hoped that I could speak to the police and make it all go away. After hearing them out, I broke the unfortunate news. Nathan was about to be charged with a child pornography offence. Nothing we could do would change that fact. Most importantly, we had to get ready. Nathan would have to get prepared for his arrest. His dad would have to get ready to attend Nathan's bail hearing. They looked puzzled. Nathan's father responded first. "But the officer had said that she only wanted Nathan to come in and talk about it. Surely, if she were going to arrest Nathan, she would have told us that." They had trouble accepting my assessment, so I offered to telephone the officer. Nathan agreed. I called, and connected immediately. I inquired about the status of the investigation. The officer promptly told me that she was waiting for Nathan to come in to "be arrested." I inquired about the possibility of Nathan being released from the police station. There's a "strict policy" against it, she retorted. Nathan and his dad were somewhat stunned, but now I had them focused.

Goals:  I identified the following immediate objectives: (i) to arrange for Nathan's surrender to the police in a manner that minimized his time in custody; (ii) to properly prepare him for the anticipated police questioning; (iii) to prepare his dad as a surety for the bail hearing; and (iv) to obtain Nathan's release on the least restrictive bail conditions. Once these bridges had been crossed, we would focus on battling the charge.

Strategy — The Arrest:  Within the hour, I had telephoned the officer to arrange Nathan's surrender for early the next morning. The officer indicated that she would arrest and "process" Nathan, and that he would be sent to Court that morning for his bail hearing. This processing would involve, of course, attempting to take a statement. Nathan and I discussed this issue at length. To make his intentions clear, Nathan signed and took with him an arrest statement.

"I DON'T WISH TO MAKE ANY STATEMENT"

Results — The Arrest:  On his arrest, Nathan provided his arrest statement. The police allowed him access to a telephone to speak with me. After ensuring that Nathan had privacy and was feeling alright, I reminded Nathan of my earlier advice. Nathan agreed not to make a statement. I also told him to "hang in there." It's not a pleasant process, but it is one you must go through. I had prepared Nathan's dad for the bail hearing, as he would be Nathan's surety, and would likely have to testify. Nathan's dad and I arrived at Court early in the morning. The bail Court was busy. Nathan didn't get reached until about 3 p.m. By day's end, however, we had a Recognizance of Bail naming Nathan's dad as the surety. By early evening, Nathan had fresh air in his lungs. I told him to take a few days to absorb the shock of what had just happened and to settle in to the new normal. Then we would focus on battling the child pornography charge.

READ THE POLICE REPORT

Strategy — The Charge:  It took months to complete the disclosure. Along with an enormous pile of documents, I received digital disclosure of over a million images. The Crown alleged that about 6000 images were child pornography. When I had completed my review, two potential defences emerged. The first defence was based on Nathan's lack of knowledge. To prove possession, the Crown must prove both "knowledge" and "control." If I could establish a doubt about Nathan's knowledge, the Judge would dismiss. The second defence was based on a Charter argument. I planned to attack the search warrant. If there was no proper basis for the issuance of the search warrant, the seized evidence could be thrown out. If that occurred, Nathan would be acquitted.

Results — The Charge:  The Charter application was argued first. After two days of cross-examination, I had established that the police lacked the necessary grounds for the search warrant. Read the link below to learn more about my cross-examination strategy. The Crown agreed that their case had been undermined. After the lunch break on the second day, the Crown put detailed comments "on the record" to explain why they would not be proceeding further. The Crown then invited the Judge to dismiss the charge. The Judge agreed.

READ THE COURT TRANSCRIPT OF THE CROSS-EXAMINATION
READ THE COURT TRANSCRIPT OF THE CROWN'S COMMENTS AND THE DISMISSSAL
READ NATHAN'S TESTIMONIAL