DC Todd Morden

Following a judge-alone conviction for sexual assault, the applicant sought a mistrial based on late disclosure of the Information to Obtain for a warrant authorizing the search of seized electronic devices and on an alleged unconstitutional search of his iPhone.

The court held that prior defence counsel had not exercised due diligence in requesting that the sealed ITO be unsealed and disclosed, and further held that any alleged prejudice could be addressed by hearing the s. 8 application on its merits.

Applying the governing principles for computer and cell phone searches, the court found that the warrant authorized the impugned search, that the full extraction created a forensic container without itself intruding on privacy, and that the subsequent review of the extracted data was conducted reasonably and in good faith within the warrant's scope.

The court therefore dismissed the s. 8 application, found no s. 7 breach, and refused to declare a mistrial.

The Crown brought an application to admit similar fact evidence across multiple counts of robbery to prove the identity of the accused in a rotating group context.

The accused was charged with six robberies of banks and pharmacies.

The court applied the Handy and Perrier frameworks to assess the degree of similarity between the robberies and whether there was independent evidence linking the accused to each offence.

The court found sufficient similarities, including the use of a single firearm held in a pronated fashion, the use of stolen older model Honda Civics, and the roles of the suspects.

The court also found sufficient independent linkage evidence, such as cell phone data and the recovery of a modified rifle, for five of the six robberies.

The application was granted for all counts except those related to one bank robbery.