Case Report – NB judge grants Charter motion to exclude evidence on seized hard drive

11 Jul

On June 2nd, a New Brunswick Provincial Court judge excluded evidence on a hard drive obtained by the Canada Revenue Agency pursuant to a search warrant.

The dispute related to files that were stored on the hard drive but were also beyond the temporal scope of the search warrant and over which the accused consistently asserted an expectation of privacy. The motions judge found that the CRA did not act improperly by seizing the hard drive, but breached section 8 of the Charter because it did not immediately file an amended return before the issuing judge and undertake not to use the out-of-scope records. He found a second breach because the CRA, instead, used the out-of-scope records to file a second search warrant in another unrelated investigation. The judge cited Celanese after stressing the government’s duty to exercise caution in searching intermingled documents.

Given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant.

However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner.

The section 24(2) analysis turned on the seriousness of the breach, which the judge characterized as a “clear pattern of a continuous obtrusive breach.”

R. v. Daley, 2008 NBPC 29 (CanLII).

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