Lawyer for Sudbury doctor facing child porn charges challenges validity of search warrants, police actions

Sudbury courthouse (CTV Northern Ontario)

Sudbury — This week in a Sudbury courtroom, the lawyer representing a Sudbury doctor facing child pornography charges challenged the validity of search warrants and the actions of a Sudbury police officer in getting passwords to the doctor's computer.

The court heard that 13 other child pornography cases involving the Sudbury officer are now being reviewed because of the way police handled them.

In this case, Ian MacDonald was arrested in May 2019 and charged with nine child pornography-related offences. The charges followed an investigation by Greater Sudbury Police's Internet Child Exploitation (ICE) unit, who were tipped off by Health Sciences North about "concerning activity" on a computer in the hospital.

Michael Lacy, MacDonald's lawyer, argued Monday his client's rights were violated when the arresting officer asked MacDonald for the password to his computer after MacDonald asked to see his lawyer.

'Unconstitutional and unlawful' 

"This was unconstitutional and unlawful practice," Lacy said. "There is no law requiring them to give up their passwords."

It turns out, it was the officer's normal practice, Lacy said, and he said as a result the Crown won't rely on information gained from the passwords to make its case.

"He thought he was entitled to do that on power of the search warrant," Lacy said.

The Crown has started reviewing all cases the officer handled, Lacy said, and has flagged 13 of them for further review.

"At least 14 cases are in jeopardy because of this unconstitutional practice," he said.

Lacy also questioned the validity of some of the search warrants that were authorized in the case – one for the hospital computer, one for MacDonald's office, two for MacDonald's vehicles and one for his home.

The defence lawyer argued four of the warrants were invalid because the wrong box was checked on the form. Rather than checking the box that said they were investigating an offence that was committed, they checked the box that said suspected to have been committed.

"It may appear to be a minor problem, but it is significant," Lacy said.

It's significant because previous judgments have said warrants for suspected offences can only be issued for where the offence is suspected to have taken place – in this case, the hospital. Broader warrants for other locations can only be issued once police know an offence has been committed.

Crown argues warrants can be amended

"You can’t use (the warrants) to look for evidence of a crime you suspect has been committed," Lacy said. "It’s clear on the face of the warrant it was improperly issued."

Crown Attorney Stephanie Baker argued the warrants can be amended to take out the word "suspected," and said previous judges have agreed that warrants shouldn't be invalidated because of a good faith error.

A technical error on the face of a warrant doesn’t necessarily invalidate the warrant, Baker said.

"In this case, the wrong box was checked off," Baker said.

But Lacy said past cases have involved striking out one of the boxes checked on the warrant, not unchecking one and checking another, or in this case, changing the meaning of the box that was checked by striking out the word "suspected."

"To do that would rewrite the warrants," he said.

Lacy also said it wasn't credible to believe a police officer didn't know it was wrong to ask for the computer passwords after a suspect asks for a lawyer.

"It's hard to believe a senior officer didn’t know basic, day 10 police training," he said. "It’s absurd … For him it was all about the ends regardless of the means."

The case, which is being heard before Ontario Court Justice Heather Mendes, completed pre-trial hearings Tuesday afternoon dealing with Lacy's Charter challenges.

The proceeding is now adjourned until September, when Justice Mendes will rule on Lacy's arguments and the trial will begin.