The Hamilton Spectator
Thursday, November 27, 1997
page A2

Judge rules search of computer for porn was legal

A Hamilton man's rights were not violated after a technician found
child pornography while searching for viruses, and then notified police

by Christine Cox

A judge has rejected a defence argument that a computer owner's constitutional rights were infringed in a case involving child pornography downloaded from the Internet.

Justice John Cavarzan of Ontario Court (general division) ruled yesterday that police did not violate Maurice Sheresky's rights under Section 8 of the Charter of Rights and Freedoms, which deals with unreasonable search or seizure.

The Crown's evidence was therefore admissible, and the judge found Sheresky, 35, guilty of possession of child pornography. He will be sentenced Jan. 16.

Sheresky took his computer to Dynamic Computers Inc. for repair last January because he was having problems with the floppy disk drive.

The company contacted police after a technician scanning for viruses found files containing photos of naked children.

After the technicians showed Constable Laura Wiltshire some of these images, which were grouped with photos of adults in sexual poses, she wasn't sure if what she had seen constituted a criminal offence.

She was concerned there could be a child in need of protection, and prepared a report for Detective Don Forgan. He got a search warrant, seized the computer, and found at least 59 images that would be considered child pornography under the Criminal Code.

The judge said Section 8 of the Charter did not apply to the computer technicians, since they are employees of a private corporation, not agents of the government. He also said Sheresky had no reasonable expectations of privacy, since he had invited them to look at what was stored in his computer.

As for Wiltshire, Cavarzan said she had a duty in law to respond to the call from the computer company. He said police did not initiate the contact in an investigation for evidence - they found evidence.

The judge said there was no violation of the physical integrity of Sheresky's person, residence, business, or automobile.

Defence lawyer Stephen Bernstein had attacked the validity of Forgan's search warrant, and argued police had no reasonable grounds for seeking it. In his opinion, the photos the technicians and Wiltshire saw did not fir the legal definitions of child pornography.

But the judge noted that police had additional information, including file names containing sexual terms, and the fact that images of very young girls were included with images of adult women engaged in explicit sexual acts. They were also aware there were many more images contained in the files. (The defence admitted some of those found by Forgan met the definition of child pornography.)

Cavarzan concluded police acted appropriately in response to a serious complaint by concerned citizens.

Bernstein said when Sheresky originally downloaded the pornographic material form the Internet, it "simply came up as numbers, and nothing more". When police asked him why he still had it in his computer, he said he was marking the files for deletion.

The judge ordered a pre-sentence report for Sheresky, who was remanded out of custody.

Copyright © 1997 by The Hamilton Spectator. All Rights Reserved. Reprinted with permission.