Child porn charge withdrawn against Libby
Author: Madeleine Leclerc
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A charge of possession of child pornography laid against former Grand Falls resident, Andrew Roland Libby, 30, by the Grand Falls Town Police and the Codiac RCMP in Moncton, was withdrawn following a decision made by Edmundston Court of Queen's Bench Judge Lucie LaVigne.

Proceedings against Libby were instituted in Moncton in June 2006 and in Grand Falls in July 2006. Since then, both proceedings had been merged and only one charge was pending dealing with the offence of possession of child pornography allegedly purported in Moncton and/or Grand Falls between September 12, 2000 and September, 20, 2005.

The judge's decision followed a motion made by Libby's lawyer, Meredith Bateman, which challenged the admissibility of evidence obtained by the police. The evidence consisted of computer images obtained by the police by viewing computer disks, or CDs, brought to the police by Libby's ex-wife and by searching the computer tower, or hard drive, of two computers, one in Grand Falls and one in Moncton.

Upon viewing the disk marked ‘misc', Cindy Libby noticed pictures where people were nude and some in explicit sexual positions. Some of the persons in these pictures were quite young in appearance. In her statement to police, she said that she noticed that "it contained photos or images of which some were of sexual content, some were of adults in a sexual posture, naked, while others showed children, naked and also of a sexual content". She decided to call the police because she "believed that this was considered as child pornography".

Libby went to the police shortly after serving her husband with a petition for divorce in mid-June 2005. In early July 2005, Andrew Libby requested that his estranged spouse provide him with various CDs located in the marital home. He was not residing in the marital home and had not done so for some time prior to being served with the petition as a result of his employment in Nova Scotia and Newfoundland.

Bateman argued that the evidence had been obtained in violation of her client's section 8 of the Canadian Charter of Rights and Freedoms' right to be free from unreasonable search and seizure, and that the evidence be excluded. She also alleged that the CDs were searched and seized in violation of the same Charter sector since the accused did not consent to this action and no prior judicial authorization was obtained.

The evidence obtained as a result of this breach formed part of the information relied on by the Grand Falls Police Force and the Codiac RCMP to obtain search warrants which authorized the search and seizure of the hard drives. Libby's lawyer argued that the search warrants were invalid as they were issued on insufficient grounds and that the information used to obtain them was incomplete or misleading.

Furthermore, Bateman alleged that the items seized were detained by the Crown for a period of more than 90 days without a further detention order in breach of section 490 of the Criminal Code of Canada.

If the information or images extracted from the CDs had been excluded, the Crown could have still continued with its case against Libby. However, if the information or images extracted from both hard drives was also excluded, the Crown no longer had a case.

A hearing pertaining to the motion request was held on Jan. 9 and 10 and Judge LaVigne gave her decision on Jan. 17 in Edmundston.

"The actions of Cindy Libby did not relieve the police from the requirement of obtaining prior judicial authorization before searching and seizing the CDs brought to them by her. The viewing of the images on the CDs by the police was a warrantless search and therefore presumed unreasonable. The onus rests on the Crown to demonstrate on a balance of probabilities that the search was reasonable," stated Judge LaVigne. "It has not met this onus. I conclude that this evidence was obtained in a manner that infringed the accused's section 8 Charter right to be free from unreasonable searches and seizures."

"The fact that a police officer is not aware of the proper procedures does not make the violation less serious and in the present circumstances it cannot be accepted as a justification for violating the accused's Charter right," she added. "A person has a high expectation of privacy concerning personal items that are left in a home."

"This was not a situation of urgency or necessity, as there was no immediate danger that the evidence would be lost, removed or destroyed. The evidence was in the control of Mrs. Libby who was cooperating with the police and the accused no longer lived in the home. It is clear that the police could have obtained the evidence without infringing the accused's rights. It would seem that when in doubt, a police officer's first instinct should be to obtain a search warrant, especially when seizing private property left in a home. I find that the violation of the accused's privacy interests was serious and not just of a technical nature."

Pertaining to the overholding of any items seized between the expiry of the warrant and its renewal or the laying of charges, Judge LaVigne ruled that the over-retention of the seized items or the further testing of copies of documents after the expiry of the warrant period did not lead to a section 8 Charter breach.

"The seriousness of the purported violation would not justify excluding the evidence. The seizure and detention of items result in a deprivation of the enjoyment of the goods seized and therefore this engages the interests of the individual which section 8 of the Charter is meant to protect," stated Judge LaVigne.

"In the present case, the hard drives could not be returned to its owner since it allegedly contains child pornography, the possession of which is illegal. This doesn't mean that in such a situation the police should not obtain an extension of the warrant or that the Court could not confiscate the items. The omission to apply for an extension cannot be condoned; however, I find that it was inadvertent in nature and not deliberate. Other than the computer tower seized in Moncton and the hard drive seized from the Grand Falls computer, I am satisfied that no other items seized pursuant to the execution of the warrant are being detained by the police. It seems clear that at least as concerns the Moncton hard drive on which it is alleged child pornography was found within the warrant period, it could not be returned to its owner. Therefore the violation, if violation there was, was more of a technical nature."

"Possession of child pornography is a serious crime. Child pornography and everything it entails can have drastic consequences on the lives of vulnerable children. If I exclude from the evidence all images or video clips extracted from the copies of the hard drives, this will be fatal to the Crown's case. In the circumstances of this case, I am convinced that the exclusion of this evidence from the proceedings would bring greater disrepute on the administration of justice than its admission would."

"The CDs and all information stored thereon are not to be introduced in evidence and there will be no mention of the images viewed on the CDs by none other than by Cindy Libby. The hard drives and all information stored thereon are admissible in evidence," Judge LaVigne concluded.

Although not an acquittal for Andrew Libby but rather a charge withdrawal, the case will not proceed unless new information is received.

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