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POWERS OF SEARCH AND SEIZURE - Search warrants - Validity

Monday, March 11, 2019 @ 9:42 AM  

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Application by the accused, charged with two counts of first degree murder, for a declaration his s. 8 Charter rights were breached in connection with the police search of his cell phone. The search warrant authorized the police to enter the accused’s residence to search for things including the accused’s cell phone. The affiant of the Information to Obtain (ITO) indicated his belief that the cell phone and the subsequent information located in the device could be used by investigators.

HELD: Application allowed. The warrant, which identified the cell phone as a thing to be seized, did not provide the police with the requisite specific pre-authorization required by R. v. Vu to conduct a search of the contents of the cell phone. While it appeared clear from a review of the ITO that the police sought authorization to search the data contained in the accused’s cell phone, that was not what was stated on the face of the warrant itself. The warrant could not be saved by reference to the contents of the ITO. The warrant was facially invalid. The search of the accused’s cell phone was done in breach of his s. 8 Charter rights.

R. v. Salehi, [2019] B.C.J. No. 136, British Columbia Supreme Court, M.M. Devlin J., January 25, 2019. Digest No. TLD-March112019002