Child-porn conviction tossed

A botched search warrant and the right to computer privacy featured Friday in a Supreme Court ruling that overturned the child pornography conviction of a Saskatchewan man.

OTTAWA — A botched search warrant and the right to computer privacy featured Friday in a Supreme Court ruling that overturned the child pornography conviction of a Saskatchewan man.

By a slim 4-3 margin, the high court quashed Urbain P. Morelli’s 2005 conviction in a ruling that threw out the “carelessly drafted” and “misleading” RCMP warrant that was at the heart of the prosecution’s case.

“This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure . . . particularly, to the search and seizure of a personal computer,” Justice Morris Fish wrote for the majority.

Fish said it’s difficult to imagine “a search more intrusive, extensive, or invasive” than the police seizing a computer and getting unfettered access someone’s personal notes, medical and financial records, as well as every website ever visited “by design, but sometimes by accident.”

The search warrant the RCMP eventually obtained on Morelli’s computer fit that description, Fish said, but it was “materially misleading, and factually incomplete.”

The portrait that police painted of Morelli in the information they put before a justice of the peace “invoked an unsupported stereotype of an ill-defined ’type of offender’ and imputed that stereotype to the appellant. In addition, it presented a distorted portrait of the appellant and his surroundings and conduct in his own home at the relevant time.”

Fish said child pornography is “particularly insidious” and evokes strong emotional responses. But police have a duty to put all relevant evidence before a court when they seek a search warrant.

In the case, police interviewed computer technician Adrian Hounjet four months after he noticed the icons “Lolita Porn” and “Lolita XXX” on Morelli’s home computer during a routine visit in September 2002 to install high-speed Internet. He also saw a web camera allegedly pointed at the toys of Morelli’s three-year-old daughter.

Hounjet paid a second visit to complete the installation and noticed the two computer icons were gone and the child’s toys had been cleaned up.

Two months later, Hounjet told his mother, a social worker, who informed social services, who in turn notified the local RCMP. The RCMP executed the search warrant in January 2003, four months after Hounjet’s original visit.

In 2005, Morelli was convicted of possession of child pornography and sentenced to 18 months of house arrest after his lawyer was unable to get the search evidence excluded at his trial. He appealed unsuccessfully to the Saskatchewan Court of Appeal before the Supreme Court agreed to hear his case last year.

For the first time, the court considered what constitutes possession of child pornography in the computer age, and found that simply looking an illegal website is not as serious as actually downloading porn to a hard drive.