Image Credit: PEXELS

SALMON ARM - A judge has ruled digital files seized by police and thought to contain images of child pornography may not be used in court as the police made errors on the search warrant used to obtain them.

In the Sept. 19 ruling, Justice Geoffrey Gomery states electronic evidence seized by police from Nicholas Van Humbeck's Salmon Arm home can not be used in his trial as the warrant the police obtained to search his property did not contain a date and the IP address was written down incorrectly.

Nicholas Van Humbeck was arrested and charged in April 2018, with three counts related to possessing and distributing child pornography.

In the decision, the judge finds "ambiguity" in one paragraph of the warrant that stipulates that the police are searching for computer files and other electronic records "at the time the offence was committed."

The judge ruled as the warrant does not give the date the offence was committed and that the IP address is incorrect on the warrant, anything seized using this warrant can not be used in court.

However, Justice Gomery only dismisses items seized under the authority of that particular paragraph and allows items seized under the authority of the warrants 16 other paragraphs to be used in court.

In the decision, the judge says he doesn't know what was seized under the authority of what paragraph and states this matter may have to be argued in court at a later date.

Van Humbeck's lawyer, Glenn Verdurmen, had argued wording on the warrant issued by a judge and used by the RCMP to search and seize computers and other electronic devices, was too ambiguous and therefore should be dismissed.

Verdurmen argues the wording of the warrant only allows police to search "for electronic devices" and did not authorize police a search "of electronic devices," meaning while police could seize the computer, they couldn't obtain the files stored on it.

In the court documents, Verdurmen describes the police warrant as  "garbled and unclear" and that it does not "satisfy the requirement" that a warrant to search for computer files must be "clear and unambiguous."

Justice Gomery says he agrees with parts of Verdurmen's argument and that the warrant was "not well-drafted."

Justice Gomery says Verdurmen's argument requires "strained and attentive reading" although "ultimately collapses on reflection."

Court documents state the Salmon Arm RCMP started investigating Van Humbeck in June 2017 after internet firm Yahoo informed them someone in Canada had uploaded three images of child pornography from September 2016 to June 2017. The RCMP then used the IP address given to them by Yahoo and tracked it to a Shaw account held by Van Humbeck. The accused was arrested following the search of his property in April 2018.

Van Humbeck's trial is scheduled to continue Nov. 18.

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