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Judge tosses four of five search warrants in case of doc facing child porn charges

Dr. Ian MacDonald’s lawyer also succeeds in gaining right to cross examine lead detective
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Sudbury courthouse. (File)

A number of search warrants issued May 14 against a Sudbury nepherologist who faces nine counts related to child pornography exceeded their authority and are facially invalid, an Ontario Court Justice ruled Sept. 28.

Justice Heather-Ann Mendes said four of the five applications for the warrants were filled out "erroneously." 

"I find the warrants issued May 14 exceeded the authority that was intended to be granted, and, as such, are facially invalid," Mendes said. "It is vitally important that search warrants are clear on their face."

She said the repeated error on multiple warrants led her to conclude the officer was, at best, relying on previous precedence containing a serious error, and, at worst, preparing warrant materials while not understanding or appreciating what it is he was applying for.

In pre-trial motions that took place over two days in July, the Crown was asking the court to alter the search warrant applications after the fact. In applying for the search warrants, the officer checked the wrong box, selecting the box with the word "suspected."

Assistant Crown attorney Stephanie Baker argued at the pre-trial motions it would be a simple matter of striking that information from the applications and replacing the word "suspected" with the word "commission."

"What the Crown was asking the court to do would ultimately change the warrant itself," Mendes said. "I find that severing the word 'suspected' after the fact is akin to the ends justifying the means, or fixing and tidying up sloppy work to suit the situation and condone the impropriety of the poorly drafted and erroneously prepared warrants."

Those warrants were issued to search and seize items from MacDonald's home, two vehicles, any out buildings on his property, as well as several data centres at the hospital.

Mendes said the search warrant issued on April 25, 2019, to search the offices of HSN's network security company in Toronto and seize the harddrive from the computer that was in MacDonald's office is still valid.

She said that application contained clearly specific information, and "I do not find there would be any confusion by anyone executing the warrant given the narrow and focused scope of the authorizing search," she said.

MacDonald's lawyer, Michael Lacy, also argued for and succeeded in garnering the court's permission to cross examine the officer from Greater Sudbury Police's Internet Child Exploitation unit who led the investigation.

Mendes said there is no automatic right to cross-examine an applicant of an Information to Obtain (ITO, a document filed by a police officer to a judge seeking authorization to obtain a search warrant), and, as such, leave of the court is required.

Baker said the Crown's office needs time to review these decisions to determine how to proceed. The matter returns to court on Oct. 7, but only to set another date and potentially set trial dates for December.

MacDonald was arrested May 15 and charged with seven counts of accessing child pornography between October 2016 and April 2019. He is also charged with two counts of posssesion of child porn on Oct. 11, 2016 and April 9, 2019.


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Arron Pickard

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