The Ontario Court of Appeal has ordered a criminal trial to proceed with evidence the RCMP gathered illegally from a man’s home computer.

Police were searching Ronald Jones’ computer six years ago for evidence of an alleged fraud relating to his purchase of a motorcycle when they stumbled upon 57 images and 31 videos of child pornography.

Since their search warrant authorized officers to look through Jones’ computer only for evidence of fraud, the question became whether the pictures and videos uncovered in the search could be used to prosecute Jones for possession of child pornography.

Last year, a trial judge said no. Justice Mary Nolan threw out the evidence, calling a veteran Crown attorney “reckless” for advising an RCMP sergeant who ran across the images to continue searching for further evidence of pornography.

But in a 3-0 judgment Tuesday, the appeal court set aside Nolan’s ruling and ordered Jones to proceed to trial, even though it agreed some of the evidence uncovered in the search — the 31 videos — was gathered in breach of his Charter right to be free from unreasonable search and seizure.

That prompted one prominent criminal lawyer to question whether decisions such as this one amount to incentives to police to break the law.

“If the message from the courts is that we will reward you for errors, whether minor or significant, because the fruit of your mistake is valuable to the prosecution,” said defence lawyer Frank Addario, “it puts a premium on ignoring the minimum standards (the Charter) creates.”

Justice Robert Blair, who wrote Tuesday’s judgment, said people have every right to expect the highly private information they store on their computers will be free from the eyes of the state.

Although police were not authorized by a warrant to search Jones’ computer for evidence of child pornography, Blair said they were entitled to seize the 57 still images because they had “fallen into plain view” during their examination.

The same could not be said for the video evidence, he acknowledged.

The court found it was gathered in violation of Jones’ rights, but declined to exercise its discretion and exclude the evidence, offering three reasons.

The police and Crown who advised the RCMP during the search acted in good faith, despite Nolan’s contrary finding. The video evidence is important and reliable, and society has a “very high” interest, Blair said, in having serious charges such as those involving child pornography go to trial.