Ontario Criminal


Charter of Rights

SEARCH AND SEIZURE
Exigent circumstances justified warrantless seizure

Application by Crown to retain seized hard drive of laptop computer, pursuant to s. 490(3) of Criminal Code. Accused sought return of hard drive on basis that seizure was warrantless and it breached s. 8 of Canadian Charter of Rights and Freedoms. Police were informed that child pornography images were uploaded into internet account and seven people, who were all from accused’s family, lived at address associated with account. Search warrant was obtained for that home, to permit seizure of all electronic devices found there. Prior to executing warrant, police saw accused leave carrying backpack and they arrested him and seized his backpack, which contained laptop, thumb drive and his iPhone. Addendum to warrant was obtained to permit search of devices seized from accused. Several computers were seized when warrant was executed but they were returned, as were accused’s thumb drive and iPhone, since they contained no child pornography. Accused refused to provide password for hard drive and police retained it as they attempted to crack 26-digit alpha-numeric password, which was very secure. Password was not yet cracked and police were unable to conclude their investigation. Application allowed. Warrant was insufficient to allow accused to be searched and seizure was warrantless. Accused’s arrest was not lawful. However, search was not rendered unlawful merely because it was search incidental to unlawful arrest. Police had reasonable and probable grounds to believe that laptop might contain evidence based on grounds used to obtain original warrant. They knew that laptop had been in home. Police were concerned that if they delayed seizure of laptop while they obtained additional warrant, there was risk that other inhabitants of home would alert accused and he would delete evidence from his hard drive. Once laptop was seized police did not go further until they obtained addendum. There were exigent circumstances that justified warrantless seizure and s. 8 was not violated. Even if s. 8 was violated hard drive would not have been returned. Section 490(3) was satisfied for investigation was complex and retention of hard drive was warranted. Extension of 12 months was granted.

R. v. Seguin (Mar. 24, 2015, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 15-13189) 120 W.C.B. (2d) 234.

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