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CONSTITUTIONAL ISSUES - Legal rights - Protection against unreasonable search and seizure

Monday, August 30, 2021 @ 9:28 AM  

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Appeal by the accused from conviction for possessing child pornography. The appellant’s wife secretly accessed the appellant’s electronic devices and found images she believed to be child pornography. She photographed some of the images she saw and then transferred the photographs onto a USB flash drive and took the flash drive to police. The police examined the contents of the USB flash drive and then used the information the wife provided them, as well as the contents of the USB flash drive, to obtain two search warrants for the appellant’s house, truck and electronic devices. The searches uncovered other child pornography images, and the appellant was charged. The trial judge found that the police’s viewing of the contents of the USB flash drive was an infringement of the appellant’s privacy rights, warrantless and not authorized by law, making it an unreasonable search. When the contents of the USB flash drive were removed from the Informations to Obtain, there was insufficient evidence to support the search warrants, which were accordingly invalid, making the searches unreasonable. The trial judge concluded, however, that the evidence should not be excluded. The appellant argued the trial judge erred in not excluding the evidence.  

HELD: Appeal dismissed. The trial judge’s conclusion that the police’s knowledge of the contents of the USB flash drive was obtained through an unreasonable warrantless search could not stand. When the appellant’s wife attended at the police station and brought them the USB flash drive as evidence of what she had reason to believe was a crime, the police did not engage in an unreasonable warrantless search by examining the evidence provided. Examining such evidence did not turn the wife’s private action in obtaining the images into state action or turn a normal police investigation into a search. Examining such information was clearly authorized by law, as the investigation of possible crimes was one of the core duties of the police service. The examination of the USB flash drive by the police was not an examination of any thing or place that belonged to or that was under the control of the appellant. The police were not required to inquire into how the appellant’s wife obtained the images, because regardless of how she obtained them, her private activities would not be a state Charter breach.

R. v. King, [2021] A.J. No. 1027, Alberta Court of Appeal, F.F. Slatter, B.K. O'Ferrall and E.A. Hughes JJ.A., July 28, 2021. Digest No. TLD-August302021002