OTTAWA — A Saskatchewan man accused of possessing child porn has been acquitted by the Supreme Court of Canada because the RCMP search warrant which found the evidence should never have been granted and they charged him with the wrong offence.
The 4 - 3 decision was handed down Friday.
Urbain Morelli was sentenced to 18 months house arrest in 2005 stemming from the 2003 arrest. He was charged with possessing child pornography.
Lower courts had agreed the RCMP found evidence on Morelli's computer — even though it had been formatted — that he had accessed child pornography sites.
The RCMP's search warrant was based only on a statement by a computer technician who, months earlier, had been to Morelli's house to install high-speed Internet.
The technician noticed two websites on Morelli's "favourites" taskbar, named Lolita Porn and Lolita XXX, and also that Morelli had a webcam pointed at the floor where his three-year-old daughter's toys were scattered about.
In November, the concerned technician told his mother, a former social worker, what he saw and she contacted the police.
The search warrant was issued in Jan. 2003, four months after the technician visited Morelli's house.
In its 4-3 decision Friday, Justice Morris Fish wrote that the Justice of the Peace who granted the search warrant did not have reasonable grounds to think evidence of possessing child porn would be found on Morelli's computer or in the house. Fish wrote the search warrant was "carelessly drafted, materially misleading, and factually incomplete."
He continued, “justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.”
Not only was evidence to grant a search warrant "insufficient," thereby making the evidenced that followed inadmissible, but the RCMP charged Morelli with "possession" of child pornography when no images had been saved or stored knowingly on his computer.
Instead, the images that were found were only found in his Internet cache, where web images, videos, songs, and so on are automatically kept unbeknownst to users.
Accessing and Possession of child pornography are two separate charges in Canada.
