Unconstitutional searches and faulty warrants: how a child porn case against a Sudbury surgeon collapsed

Sudbury courthouse (CTV Northern Ontario)

Sudbury — It's an understatement to say people in Greater Sudbury were shocked in May 2019 when Sudbury nephrologist Dr. Ian MacDonald was charged with using a computer at Health Sciences North to access child pornography.

But bigger shocks were to come. And the outrage over how MacDonald walked away from the charges without a trial to consider the allegations is compounded by the fact more than a dozen similar cases are now in jeopardy because of issues brought to light by MacDonald's case.

The story begins in January 2019, when Health Sciences North suffered a virus attack on its computer network. The software system was housed at HSN and used by 24 hospitals in northeastern Ontario.

To bolster security and prevent future problems, the hospital hired iSecurity Consulting, based in Toronto, to conduct a forensic analysis of the system. It emerged it was a zero-day virus, a term referring to a newly discovered vulnerability that anti-virus software wouldn't catch.

But something else also emerged. In April, the forensic analysis discovered "troubling" activity on one of the computers, one used by MacDonald. He was arrested May 15 and charged with seven counts of accessing child pornography and two counts of possessing child pornography.

While such charges are depressingly common in the internet age, MacDonald had what many people facing such cases don't: money. Enter Toronto lawyer Michael Lacy, one of the top defence lawyers in Canada.

Lacy became known in Sudbury when he successfully represented Gerry Lougheed Jr. in the notorious Sudbury byelection scandal in 2017. While that case was a slam dunk for the defence, it looked like MacDonald's case was going to be a much tougher nut to crack.

To understand how Lacy did it, it's important to know what he was facing. Crown prosecutor Stephanie Baker was expecting to rely on evidence gained from five search warrants, including searches of the hospital computer, devices in two cars MacDonald owned, his home and outbuildings on his property.

When reporters gathered July 13 at the Sudbury courthouse to watch pre-trial motions, MacDonald sat in the front row, behind Lacy, wearing a grey suit and a COVID mask, taking notes and occasionally conferring with his lawyer. A thin man with light brown, curly hair, he seemed understandably tense.

First shock

Lacy quickly delivered the first shock: the Crown had agreed to not use  evidence gained from any devices for which MacDonald had given the police the passwords. But why?

According to Lacy, it turned out the lead Sudbury police investigator, Det. Const. Chris Kerr, had a policy of asking child porn suspects for the password to their computer, even after the suspect had asked to see a lawyer.

"Det. Kerr, rather than allowing the applicant the opportunity to speak to a lawyer, questioned him and obtained various passwords from him," Lacy told Ontario Court Justice Heather Mendes. "And you'll know from the Crown's response, the Crown concedes that that conduct was unconstitutional and therefore it was unlawful."

Lacy went on to say that when the Crown learned this was Kerr's usual practice in investigating child porn cases in Sudbury, it began reviewing other cases he had handled, and 13 of them are now in jeopardy.

Defence lawyers for those clients were sent a letter from the Crown informing them of the news.

So information gleaned from the passwords was no longer available to the Crown. And Lacy raised several issues regarding the way Kerr obtained the warrant for the hospital computer, raising enough questions that the judge granted him permission to cross-examine Kerr at the trial to challenge the validity of the hospital warrant.

For example, there was communication between the hospital and police before the warrant was issued, but the judge who granted the warrant wasn't told about it. There was apparently enough concern on the part of the Crown of what would happen if Kerr were to be put on the stand that the Crown chose not to use information from the hospital computer warrant.

So information gleaned from the passwords was no longer available to the Crown, but there was still information from the other search warrants that were available and now were the cornerstone of the case.

That's when Lacy introduced a relatively obscure decision known as the Branton error. It has to do with the way search warrant forms are written, and which boxes are checked off on the form to authorize the search.

A good analysis of the cases dealing with the Branton error can be found here by lawyer Robert Harbic in 2018.

The issue boils down to the courts ruling that warrants can't be fishing expeditions for police who want to search everywhere they can think of in hopes of finding evidence that a suspect has committed a crime.

It means police can ask for a warrant to search somewhere when they have reasonable grounds to know a crime has been committed. What they can't do is ask for a warrant to search somewhere they suspect a crime has been committed. In MacDonald's case, the wrong box was checked on the remaining warrants.

Crown counsel Baker argued that it’s clear police were seeking warrants in connection with an offence that had been committed, not suspected. She contended that precedent had shown the warrant could be amended to fix the problem.

"Essentially what this is, is the wrong checkbox, the wrong box is marked off on the warrant," Baker told Mendes.

The Branton error made it clear that police couldn't go on fishing expeditions, she said, but that wasn't the case here. Police had reasonable grounds to believe an offence had been committed, she argued, and the proper remedy would be to amend the warrant to strike out the word "suspected."

"Your Honour, there is a position in the case law that you can look at a warrant and sever the bad parts of the warrant," Baker said. "Reading this warrant, it's clear that it is, in fact, referring to reasonable grounds in relation to completed offences ... And so I would suggest that there's authority that you could simply scratch out the word 'suspected commission of the offence.' "

The major concern in Branton, she said, is that courts would unintentionally authorize police to conduct overly broad searches with the warrants. That's not true in this case.

"In my respectful submission, you look at these warrants and in this particular case, there is no possibility of overbroad search," Baker said.

But Lacy argued that past cases involved relatively minor amendments -- unchecking a box. And in those cases, police were using old forms that were flawed, so the courts gave more leeway to amend them. In this case, the warrants were completed using the new forms, and to change them would be rewriting them.

"In my respectful submission, a constitutional fiction," he said. "You'd be rewriting the warrant, and that's not the task of a reviewing justice in looking at the facial validity of a warrant."

"Judges have disagreed on whether you can sever or not, but in our case, severability is not even an option because there's nothing to sever," Lacy continued. "Because we're not dealing with the old Form 5, we're dealing with the new form, the document speaks, and therefore it's a straight line, with all due respect, from the Branton error, to the conclusion that the document and the search warrant is facially invalid."

Mendes delivered her decision Sept. 28, ruling that rewriting the warrants now to fix "sloppy work" or the ignorance of the police officer who filled them out is going much farther than previous decisions, which have allowed more minor alterations.

"It's vitally important that warrants are clear on their face," Mendes said. "I decline to sever the word suspected ... as this would be altering the warrants."

With information from the hospital computer unavailable, and no evidence from warrants to rely on, the Crown's case collapsed. Baker had no choice but to withdraw the charges, which she did Oct. 7.

In the aftermath, Greater Sudbury Police declined to say whether anyone has been disciplined. But they did say child exploitation cases are complex investigations presenting difficult challenges for police.

"We are reviewing the ruling and examining our internal processes," police said in a statement to CTV News. "Moving forward we will seek input from the Crown’s office with respect to the application of law and procedural changes.

"Cases are litigated with the expectation that there will be different legal opinions and ruling, however we are committed to taking these lessons learned forward ensuring that we continue to serve victims and do our part to hold offenders accountable."

And what of the 13 child pornography cases in Sudbury that were put in jeopardy and are being reviewed?

The Crown's office was not permitted to speak directly to the media. And the Ministry of the Attorney General declined to comment on the status of the cases – whether any convictions have been overturned or when the public will be told the results of the review.

"As these matters are before the court, it would be inappropriate to comment," the ministry said in a statement.

When asked if that meant none of the convictions in the cases being reviewed have been overturned, the ministry simply repeated their original statement.

As for MacDonald, the allegations against him were not tested in court, and there was no finding of guilt or innocence. But in practical terms, a Google search would uncover the original charges to any prospective employer and his hospital privileges at HSN have been suspended.

After the criminal case collapsed, the Ontario College of Physicians and Surgeons launched their own investigation Oct. 7. That investigation is still underway, the College told CTV News.