Appeal Court orders new trial in British Columbia child exploitation case

Law360 Canada (September 12, 2025, 10:51 AM EDT) --

John L. Hill

The American poet and journalist Carl Sandburg has been quoted as saying, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” That appears to be the advice that legal counsel might have received when defending Eric David Guenter.

Guenter was charged with possessing child exploitation material under s. 163.1(4) of the Criminal Code. The evidence appeared to be against him when a Google Drive account in Guenter’s name uploaded 254 files of child exploitation material.

It was time to argue the law when Guenter was tried in the British Columbia Provincial Court. The case focused on whether the search warrant for his residence was valid under s. 8 of the Charter. Police traced the Google account to Guenter using his email, verified phone number from Insurance Corporation of British Columbia records and driver’s licence records. Still, the actual upload was masked through a VPN.

The trial judge determined that the Information to Obtain (ITO) for the search warrant lacked “case-specific” evidence linking devices at Guenter’s residence to the uploads. Consequently, the search was deemed unlawful under s. 8, and the seized evidence was excluded under s. 24 (2) of the Charter. As a result, Guenter was acquitted (R. v. Guenter, 2023 BCPC 170).

There was no need for Guenter’s lawyer to pound the table and yell — until the Crown appealed the acquittal. The Crown presented three grounds to the British Columbia Court of Appeal in an attempt to overturn the acquittal: (1) the trial judge misstated and misapplied the test for reviewing a search warrant, effectively re-evaluating the evidence from the beginning; (2) the judge erred by requiring “case-specific” proof that Guenter possessed or used devices at his home, instead of evaluating the ITO in a practical, common-sense manner; and (3) the finding that the warrant was invalid was unreasonable given the information provided.

On Sept. 5, 2025, the British Columbia Court of Appeal delivered its decision upholding the appeal and ordering a new trial (R. v. Guenter, 2025 BCCA 308). Once again, the issue centred on the sufficiency and reliability of the evidence used to obtain the search warrant. It was the Appeal Court’s responsibility to determine whether the ITO, as excised and amplified, provided enough credible and reliable evidence to satisfy the issuing judge that there were reasonable grounds to issue the warrant: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Morelli, 2010 SCC 8; R. v. Ebanks, 2009 ONCA 851.

A Crown appeal against an acquittal must rest on questions of law alone. The standard of review is correctness.

In its analysis of the trial judge’s reasons, the Court of Appeal found that the trial judge erred in demanding case-specific information, specifically that Guenter kept electronic devices at his residence. The case law (such as R. v. Kalonji, 2022 ONCA 415) tells us that it is not necessary to have direct evidence that the accused kept suspected evidence at his home; it was sufficient that the justice who issued the warrant used common-sense inferences that the material would be found.

According to R. v. Hamouth, 2023 ONCA 518, reviewing justices must remember that affiants do not need to explicitly state the obvious, reasonable inferences that can be drawn from the information in an ITO. This is because, whether explicitly stated or not, it is within the power of issuing justices to consider these inferences. Therefore, when deciding whether an authorization could have been issued, reviewing justices must take into account all the information available to the issuing justice, along with any reasonably inferred conclusions that might have been drawn from that information (R. v. Vu, 2013 SCC 60; R. v. Reilly, 2020 BCCA 369).

Had the trial judge applied the correct standard of review, he could have concluded that the use of a VPN was capable of supporting the inference that the child exploitation material had been uploaded from the residence to which the search warrant applied. This reasonable inference would, in turn, provide a basis to believe that Guenter kept and used electronic devices at his residence.

Having established an error in law, the Appeal Court set aside the trial judge’s order excluding the evidence that led to the acquittal. A new trial was ordered.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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