R. v. Millard and Smich, 2016 ONSC 348
[98] The Supreme Court’s remarks in Vu are helpful on this issue. In that case the court observed that evidence of ownership and use is not easily predicted from the outside of a computer. That is, until police look, they have no way of knowing precisely where and in what form evidence of ownership may be located.
[99] I agree with the Crown in that a computer with an account in, say, Millard’s name, is some evidence of ownership and of usage. But it does not conclusively prove he used a device or computer a particular time or did a specific act. The persuasive force of the contents of the computer, for example, emails or photos, provide more compelling evidence of user and ownership. There is no legal basis to suggest police are to be limited to the worse evidence when better evidence is at their fingertips. More to the point, it was open to the jurist to permit police to secure the best evidence.
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