Defence alleges Charter breach in Cornwall child porn search

The Cornwall courthouse at 29 Second Street West. (Newswatch Group/Bill Kingston, File)

CORNWALL – The defence lawyer for a Cornwall man, accused of possessing child pornography, has alleged the warrant to search his client’s property was improper.

Michael Spratt argued Friday that the “fundamental prerequisites was not met” for reasonable and probable grounds when Justice of the Peace Louise Rozon authorized a search warrant for Jared Hendrie’s home on Eleventh Street West.

Hendrie, 27, has pleaded not guilty to a single count of possession of child pornography. A Charter (of Rights and Freedoms) application came during the second day of the trial.

Spratt argued the information to obtain (ITO) for the search, prepared by Det. Const. Austin Clark, was made on the hypothesis of the behaviour of people who obtain child pornography, such as pornography collections getting bigger over time and people who have it tend to keep it because it’s hard to obtain.

The lawyer repeatedly called the police thinking a “bald assertion” based on one video uploaded to Instagram in April 2018. The search was carried out seven months later and Spratt said the passage of time “affected the probability of reasonable grounds” for the search.

Spratt asked that the evidence – over 400 images and videos found on two cell phones – be excluded as evidence in the trial.

Crown attorney Dave Isbester argued that the ITO was reasonable and based on “common sense.”

Isbester said the fact a video had been uploaded to Instagram in April 2018 and that the IG account was tied of an email address with Hendrie’s name in it, was enough proof for a search that Hendrie was “entrenched in possession of child pornography” and uploading it was taking “active steps to trade.”

The officer’s ITO was not “bald assertion” but was arguments based on 10 years of experience and backed up by common sense, the prosecutor countered.

Isbester said the officers never acted in bad faith.

He said excluding the evidence would “go beyond frustrating the prosecution, it’s the Crown’s case.”

Justice Diane Lahaie will make a ruling on the Charter application in four weeks. The trial will continue in March.

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