Court File and Parties

COURT FILE NO.: CR-18-50000385-0000 DATE: 2019-06-13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRIZAQ YABAROW

Counsel: Paul Zambonini and Gus Kim, for the Crown Jennifer Penman and Tania Bariteau, for Abdirizaq Yabarow

HEARD: May 30, 2019

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. Dambrot J. :

[1] Abdirizaq Yabarow is charged with the second degree murder of Abdinasir Hussein. He is being tried for this offence by me, with a jury. During the afternoon and evening of October 3, 2017, Mr. Hussein was drinking alcohol in his apartment with a number of other men, including Mr. Yabarow. The following morning, Mr. Hussein was found dead on the floor of his apartment surrounded by blood and broken bottles. He had been struck numerous times with an edged weapon causing multiple cuts to his face and body. An autopsy was conducted and the cause of his death was determined to be multiple sharp force injuries.

[2] The accused brings an application for an order quashing a search warrant and production order issued in relation to the death of Mr. Hussein pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, and excluding evidence seized pursuant to those authorizations or derived from them at his trial pursuant to s. 24(2) of the Charter.

Background

[3] The Crown alleges that the accused murdered Mr. Hussein in Mr. Hussein’s home in the evening of October 3, 2017. On October 6, 2017, an acquaintance of the accused informed the police that the applicant told him that he had stabbed the deceased and planned to flee the country. The applicant was arrested later that day and transported to a police station. Upon his arrest the police seized his Samsung cell phone and his Lenovo tablet. These devices were placed in a locker at the Toronto Police Property Unit at 330 Progress Avenue in Toronto pending the obtaining of a search warrant.

[4] On October 26, 2017, Justice of the Peace Buchanan issued a search warrant pursuant to s. 487 of the Criminal Code allowing the police to seize the cell phone and tablet and analyze them. The same day, Justice of the Peace Agnew issued a production order pursuant to s. 487.01 of the Criminal Code allowing the police to obtain subscriber information and phone records for the accused and the victim’s phone numbers. The information to obtain the warrant and the information to obtain the production order were each sworn by Detective Constable Arcand of the Toronto Police Service (the “informant”).

[5] In the case of the warrant, the justice concluded that that there were reasonable grounds to believe that:

1. there were in the building at 330 Progress Avenue in Toronto;
2. certain things, namely a black Samsung phone and a white Lenovo tablet;
3. that were being sought as evidence in respect of the commission by Mr. Yabarow of the offences of: the second degree murder of Abdinasir Hussein; an assault on Mohamed Gafow using a weapon; and an assault on Mohamed Gafow causing bodily harm;

and accordingly he authorized the informant to enter the named place, search for and seize [1] the named things between 6:00 a.m. and 9:00 p.m. from October 20 to November 3, 2017.

[6] The warrant went on to establish terms and conditions for the examination and analysis of the phone and the tablet, and the extraction of data from them. Specifically, it permitted the examination and analysis of the two devices by a Certified Forensic Computer Examiner who is a member of the Toronto Police Service Technological Crime section using computer forensic software who could extract data falling into six categories relating to the listed offences.

[7] In the case of the production order, the justice was satisfied that there were reasonable grounds to believe that:

1. the same offences had been committed;
2. subscriber and authorized user information and phone records, including network activity records and call detail records of two specified phone numbers, as well as records of cellular tower sites utilized by those two phone numbers, all relating to the period from October 1, 2017 to October 6, 2017, and the same sort of records of a third number for the period from October 1, 2017 to October 4, 2017, were in the possession of or control of Rogers Communications Canada Inc. (“Rogers”); and
3. these records would afford evidence of the named offences;

and accordingly he ordered Rogers to produce copies of those records to Detective Constable Arcand within 30 days.

The Issues

[8] The accused raises three issues on this application. He challenges:

1. the facial validity of both the warrant and the production order primarily on the basis that the informations sworn in support of them do not disclose reasonable grounds to believe that the things sought will afford evidence of the offences. And also on the basis that they are too broad;
2. the subfacial validity of both the warrant and the production order on the basis that there was material non-disclosure in the informations; and
3. the execution of the warrant on the basis that it was executed outside of the time permitted for execution.

[9] I will consider each of these arguments in turn.

Reasonable and Probable Grounds

[10] The applicant argues that the informations sworn in support of the search warrant and production order do not disclose reasonable grounds to believe that the things sought will afford evidence of offences, or are otherwise facially invalid because they are too broad. I have noted that the information to obtain the warrant and the information to obtain the production order were each sworn by Detective Constable Arcand of the Toronto Police Service. The contents of the two informations were essentially identical. As a result, I will not differentiate between them in my analysis, and will simply refer to “the information”.

[11] Before I consider the sufficiency of the reasonable grounds for belief in the information, it is important to identify what is required in the context of a search of an electronic device, and what test should be applied.

[12] The examination of an electronic device such as a computer or a cell phone raises privacy issues that do not arise in most other contexts. In this context, there are usually two distinct intrusions into privacy, one entitling the authorities to search for and seize the device, and another to examine its content. Each must be authorized by law. As a result, it was established in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, that the general principle that authorization to search a place includes authorization to search places and receptacles within that place gives way, in the case of computers and cell phones, to the requirement for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization. Both the search for the electronic device itself, and the subsequent examination of its content, which is, itself, a search (see R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621), must be justified by showing reasonable grounds for the search. In the case of the content of the devices, an informant must satisfy the justice that the things sought are accessibly in the device and will afford evidence of the named offence.

[13] Before I examine the grounds in the information, I remind myself that I am not permitted to substitute my view of the sufficiency of the grounds for that of the authorizing justice. The issue for me is whether or not the authorizing justice could have granted the authorization (see R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421 at 1452). It is important to identify what this means in the context of a search of an electronic device.

[14] It is useful to begin my analysis with a summary of the informant’s grounds for belief that a production order and warrant should be issued. I do not propose to provide a detailed description of the grounds. I will simply list a few key items.

[15] I begin with the grounds for Detective Constable Arcand’s belief that the named offences were committed by Mr. Yabarow. I will say immediately that, in my view, the record before the authorizing justices unquestionably established reasonable grounds for this belief. The information includes the following:

(1) information from persons present at the deceased’s apartment on October 3, 2017, prior to his death, that Mr. Yabarow was also there; (2) information from persons present in the apartment, including Mr. Gafow, that Mr. Yabarow hit Mr. Gafow on the head with a bottle while at the apartment, which resulted in an injury to Mr. Gafow that was serious enough to cause him to go the hospital by ambulance to be treated; (3) information from Mr. Gafow that he returned to the deceased’s apartment briefly at 11:00 to get his gym bag and observed that the deceased, the applicant and a third man were still there; (4) information from police officers that at 1:22 a.m. on October 4, 2017, a TTC bus driver called for an ambulance for the applicant, who had cuts to his right eyebrow and left wrist, that the officers attended at Finch Avenue West and Weston Road and learned from the applicant that he had been punched in a fight and had punched the other person back and injured him, and that the applicant was then transported by ambulance to the Humber River Hospital; (5) information that the deceased was found lying on the floor of his apartment amidst blood and broken bottles with his apartment door ajar at 7:15 or 7:30 a.m. on October 4; (6) information that the deceased had cuts and lacerations on his face and body, and was pronounced dead by 10:00 a.m.; (7) information that an autopsy was performed on October 5, 2017, and the cause of death was determined to be multiple sharp force injuries; (8) information from Mohamed Khalinle that on October 6, 2017, Mr. Yabarow told him that he had stabbed a Somali friend of his with a knife and killed him; and (9) information that on October 6, after he had been arrested for these offences, when questioned about the death of the deceased on October 4, Mr. Yabarow told the police that he had been drinking with the deceased and that he attacked the deceased only after the deceased attacked him.

[16] Next, Detective Constable Arcand set out the grounds for his belief that the two devices sought would be found at 330 Progress Avenue. He then explained the grounds for his belief that the specific records and data he sought would be found in Roger’s phone records for Mr. Yabarow’s phones and in Mr. Yabarow’s cell phone and tablet. These grounds included the following:

(1) Mr. Yabarow was arrested in possession of a cell phone and tablet; (2) he was seen to place calls on his cell phone at the deceased’s apartment; (3) Mr. Yabarow told the police in his October 6 statement that before he arrived at the deceased’s apartment the deceased had sent him text messages telling him what type of alcohol to bring; and (4) information from Mohamed Khalinle that on October 6, when Mr. Yabarow told him that he had stabbed a Somali friend of his with a knife and killed him, he also told him that he needed a place to sleep that night and wanted to escape.

[17] Based on the foregoing and other information, Detective Constable Arcand swore that the following information and data would be found in Mr. Yabarow’s Rogers phone records, and that these items, limited to the period from October 1 to October 6, 2017, would afford evidence in respect of the named offences:

• Subscriber information would confirm the “owner” of the phone numbers attributed to Mr. Yabarow
• Call and text logs would show contact between the deceased and Mr. Yabarow before the offence, and would corroborate information that they had met before the murder
• Cell tower information would show the location of Mr. Yabarow’s phone before, during and after the murder
• Phone records after the murder would show contact with family members or persons outside of the country corroborating the information that he intended to flee

[18] Also based on the foregoing and other information, Detective Constable Arcand swore that the following items would be found in Mr. Yabarow’s cell phone and would afford evidence in respect of the named offences:

• Call and text records before and after the murder would confirm that Mr. Yabarow was with the deceased, as well as Mr. Yabarow’s intent to flee
• Text messages would show that Mr. Yabarow’s contacts and plans around the time of the murder
• Because it is common to use other applications on a cell phone for messages and phone calls, those records and messages will also provide evidence
• Internet history will show post offence behaviour including queries regarding murder penalties in Canada and attempts at preparing to leave the country

[19] With respect to the tablet, Detective Constable Arcand swore that some of the same material that he listed with respect to the cell phone would be found in Mr. Yabarow’s tablet and would afford evidence in respect of the named offences for the same reasons.

[20] In the four pages of his information that immediately follow the descriptions of these items, Detective Constable Arcand elaborated in considerably greater detail the basis upon which he believed that the items would afford evidence of the named offences. In the course of this elaboration, he makes clear that the items he mentioned would include photographs, video collections, multimedia such as movies and music, personal e-mails and personal files.

[21] My task on this application is to determine whether, on the material before the authorizing justices who granted the search warrant and production order, there was any basis upon which they could have been satisfied that the pre-conditions for granting the particular order existed. If I conclude, based on the material before the authorizing justice, that he or she could have granted the authorization, then I cannot interfere.

[22] In this case, a responsible argument could not be made that based on the material before them, the authorizing justices could not have issued the production order and search warrant, and I did not understand counsel for the applicant to say otherwise. What she argued was that the search warrant in particular was too broad, included information and data that was not justified and amounted to a carte blanche to explore everything in the two electronic devices seized. In particular, she said that there was no basis for an internet search, or a search of music, videos, and emails and certain other things. She said that the mere fact that the police had a basis to believe that Mr. Yabarow used his cellphone to make phone calls and to send texts says nothing about sending emails. And she said that post offence conduct is not evidence of the offence. I simply cannot agree with any of this.

[23] In the circumstances of a case like this, where there is evidence that a person committed a murder, it is no leap of logic to conclude that there is a probability that his or her cell phone communications, photographs, videos and the like will contain evidence of the offence. Evidence of the person’s whereabouts, associations, and communications in the period immediately before and after the crime will invariably have evidentiary value in relation to the crime. Undoubtedly, in some respects, the proposed search here was wide, but it was very far from unlimited. The search was limited by time, subject matter and purpose. And the categories of evidence sought were logically connected to the offence. I do not see how I could say that the judicial officers in question could not have issued the production order and search warrant in issue. Having said this, I will go on to address some of the specific points made by the applicant.

[24] First, the applicant suggests that where the police have grounds to examine the content of a cell phone, and have specific information that an individual uses his or her cell phone to make phone calls and send texts, but no specific information that the individual has or uses an email application, then the police can obtain a warrant authorizing an examination of calls and texts, but not emails. I cannot accept this suggestion. A cell phone is a communications device. If there are grounds to examine communications on a cell phone, the police do not need more to examine each specific type of communications it contains. They do not need specific information about the use of specific communications tools or apps before they can search them. In addition, the informant justified the search of email files to show that the owner of the phone had access to the phone at the relevant time. I am of the view that this explanation was also sufficient to permit the authorizing justice to include emails in the search.

[25] Second, the applicant suggests that even if the police have grounds to examine the content of the cell phone of a person reasonably believed to have committed a murder, they need specific information that he or she uses the cell phone’s camera before they can look at pictures stored on the cell phone in the relevant period. I cannot accept this suggestion. The ubiquitous use of cell phones to take photographs of people and places may be taken into account by an authorizing justice. The informant explained this and more in detail in his information.

[26] Third, the applicant suggests that evidence of after the fact conduct is not evidence of an offence and that it cannot be sought in a search warrant. I do not accept this argument. A search warrant can authorize the search for and seizure of things that are not directly proof of an offence. It is sufficient if the things sought have potential relevance or some evidentiary nexus with the offence. After the fact conduct, while not directly evidence of an offence, generally tends to support an inference of guilt. Importantly, s. 487 is not limited to evidence establishing an element of the alleged offence, or of the Crown’s case. This was recognized by the Supreme Court in CanadianOxy Chemicals Ltd. v. Canada (A.G.), 1999 SCC 680, [1999] 1 S.C.R. 743, at para. 17, where it was stated:

We can assume that Parliament chose not to limit s. 487(1) to evidence establishing an element of the Crown’s prima facie case. To conclude otherwise would effectively delete the phrase “with respect to” from the section. While s. 487(1) is broad enough to authorize the search in question even absent this phrase, the inclusion of these words plainly supports the validity of these warrants.

[27] Fourth, the applicant suggests that there was no basis for the warrant to authorize an examination of the applicant’s internet searches. I do not agree. Given that Mr. Yabarow had expressed a desire to flee, an examination of his internet searches in the relevant time frame would logically reveal information about the places he was considering fleeing to and the means by which he was considering his flight. Flight is after the fact conduct that tends to support an inference of guilt.

[28] Fifth, the applicant argues that whatever might be said of the examination of the applicant’s cell phone, there was no basis to examine his tablet. Again, I do not agree. The informant swore that an examination of the tablet would yield records and messages from applications used for messaging and phone calls, and internet history which will show post-arrest conduct. It is common knowledge that information of this sort that will be found on a person’s cell phone will also be found on their tablet. Since there was a basis for the justice to examine the cell phone for these things, there can be no doubt that there was a basis for an examination of the tablet. The justice could properly permit the tablet to be examined for the same purpose.

[29] Sixth, the applicant suggests that there was no basis for the production order to require production of cell phone tower locations for the applicant’s phone for the period from October 1 to October 6, 2017. I do not agree. The information makes clear that cell tower locations will show the locations of the applicant’s phone before, during and after the murder. The relevance of this information is self-evident. While the police had compelling evidence that the applicant was in the deceased’s apartment on October 3, 2017, the cell phone tower locations would help pinpoint the time that the applicant arrived at the apartment and, more importantly, the time he left. Both of these facts were unknown to the police at the time, and could help establish whether or not the applicant had the opportunity to commit the murder.

[30] Seventh, the applicant argues that there was no basis to examine multimedia, such as movies and music, in the applicant’s cell phone. I acknowledge that the justification in the information for this aspect of the search is not strong. But assuming without deciding that the authorizing justice could not have included this aspect of the search in the warrant, the error would be harmless. The Crown does not seek to tender anything falling into this category. Warrants are severable. Where there is a clear dividing line between the good and bad parts of a search warrant, the bad part of the warrant can be severed from the good, and the good part stands (see Regina v. Paterson, Ackworth and Kovach (1985), 1985 ONCA 167, 18 C.C.C. (3d) 137 (Ont. C.A.) aff’d 1987 SCC 22; Grabowski v. The Queen, 1985 SCC 13, [1985] 2 S.C.R. 434; R. v. Lachance, 1990 SCC 53, [1990] 2 S.C.R. 1490).

[31] The applicant raised a number of other small concerns about the facial validity of the warrant and order in his factum, but did not press them in oral argument. None of them give me any concern.

[32] Accordingly, I am satisfied that the information sworn in support of both the warrant and the production order discloses reasonable grounds to believe that the things sought will afford evidence of offences and are not otherwise facially invalid. I reject this ground of attack.

Material Non-disclosure

[33] The applicant challenges the subfacial validity of both the warrant and the production order on the basis that there was material non-disclosure in the information. The non-disclosure relates to the grounds to believe that the applicant murdered the deceased. I remind myself that the existence of non-disclosure in the information sworn in support of a search warrant only vitiates the search warrant if, having regard to the material that was not disclosed, there is no longer any basis for the decision of the authorizing justice (see Garofoli at 1452).

[34] I have already summarized the grounds included in the information for the informant’s belief that the applicant murdered the deceased, and that the murder took place between 11:00 p.m. on October 3, 2017 and 1:22 a.m. on October 4, 2017. This included a virtual confession to Mohamed Khalinle.

[35] The informant also recited information from Pithamber Ojha, a neighbour of the deceased, that he saw several Somalian men in the deceased’s apartment on October 3, 2017 at around 8:30 or 9:00 p.m., and that at around 3:00 a.m. on October 4, he was awoken by banging noise, swearing and three or four people speaking what sounded to him like Somalian. As a result, the justices who authorized the warrant and production order were aware of information that was capable of suggesting that the murder was not committed by the applicant, assuming the time suggested by Ojha was accurate. Undoubtedly, the applicant left the apartment before 1:22 a.m., and taken to hospital sometime after that. Other men might have returned to the apartment after the applicant left, and committed the murder.

[36] Of course, the fact that there was evidence that “favoured” the applicant did not preclude the issuance of the orders. There unquestionably remained reasonable ground to believe that the applicant committed the offence. Simply put, a search warrant application is not a trial. What, then, was the material non-disclosure?

[37] The applicant points to the following: (1) the informant omitted from the affidavit that he had also interviewed Mr. Kyei, another neighbour of the deceased, who said that between 2:00 and 3:00 a.m. he heard arguing, screaming and the sound of broken bottles in the hallway, and the deceased’s voice saying “get out, get the fuck off me”; (2) the affiant did not ascertain from the paramedics that the applicant’s phone was “dead” when they arrived at the hospital; (3) the affiant failed to investigate the quality of the translation of the applicant’s statement to the police on October 4, 2017; and (4) the affiant did not ascertain that the wounds to the deceased were more likely caused by broken glass than a knife.

[38] In my view, the second, third and fourth points mentioned by the applicant are without significance. They simply amount to a suggestion that the police are required to do a complete investigation before they apply for a search warrant or production order. The law does not require the police to do so. Even a wiretap authorization, with its prerequisite of investigative necessity, is not a technique of last resort (see R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 118). Far less is a search warrant, which has no investigative necessity prerequisite, an investigative tool of last resort. The police do not need to exhaust every investigative procedure that defence counsel can conjure up before they are entitled to apply for a search warrant.

[39] With respect to the first point, undoubtedly the omission of the information provided by Mr. Kyei is of greater concern. As a result, I permitted the accused to undertake a narrow and focussed cross-examination of the informant to ascertain how it was that he omitted reference to the statement made by Mr. Kyei. He candidly agreed that it ought to have been included, and said that it was an oversight on his part to have omitted it. I accept his evidence on this point. He also expressed the view that had it been included it would have not precluded the issuance of the warrant. While that is a determination for me to make, I agree with him. The fact that two neighbours rather than just one were awakened by noise and Somalian voices in the deceased’s apartment, and both of them believed that this occurred after the applicant had left undoubtedly strengthened the possibility that the applicant was not the murderer, but it hardly defeated the reasonable grounds for belief that he was. The authorizing justices could, and undoubtedly would, have issued the warrant and order even if they were aware of Mr. Kyei’s information.

Execution of the Search Warrant

[40] The applicant argues that the forensic examination of the cell phone violated s. 8 of the Charter because it took place outside of the period authorized by the warrant. The warrant, on its face, authorized and required “the Peace Officers in the Toronto Region” “to enter into the premises and to search for the above things” between the hours of 6:00 a.m. and 9:00 p.m. from October 20, 2017 to November 3, 2017. The premises are defined as “the Building at 330 Progress Avenue, Toronto.” The things are set out in Appendix B.

[41] Appendix B is entitled “ DESCRIPTION OF THINGS TO BE SEARCHED FOR ”, and continues:

1. The following items are being sought in this warrant: a. Black Samsung Phone identified with property tag P384449 b. White Lenovo Tablet identified with property tag P384449

[42] Appendix B then proceeds to set out the terms and conditions of the search. The terms and conditions permit the examination and analysis of the devices in relation to the listed offences, by a member of the Toronto Police Service Technological Crime Section who is a Certified Forensic Computer Examiner using forensic computer software, without modifying, destroying or damaging the data. The terms and conditions then set out the categories of data that may be extracted.

[43] This argument does not appear in the applicant’s factum, but was made orally in argument. Counsel for the applicant advised me, and Crown counsel did not suggest otherwise, that the phone and tablet were seized from the police property unit at 330 Progress Avenue in Toronto on November 1, 2017, within the period mentioned in the warrant, that the forensic examination of the phone took place on December 6, 2017, and the forensic examination of the tablet took place on December 8, 2017, both dates after the expiration of the search period.

[44] The applicant argues that the warrant required the examination of the phone and tablet to be completed within the period stipulated for the search and seizure of the devices and, accordingly, the execution of the warrant continued outside of the authorized period, resulting in a violation of s. 8 of the Charter.

[45] In my view, this argument must fail. It seems to me to be plain on the face of the warrant that the police were obliged to search for the devices in the building of 330 Progress Avenue and seize them within the period from October 20 to November 3, 2017, between 6:00 a.m. and 9:00 p.m., but did not have to conduct the forensic examination of the devices within that time period. In particular, the limitation that the search be conducted in daylight hours may make some sense when considering a search of a place, but makes no sense whatever with respect to the forensic examination. Importantly, the absence of a time limit on the forensic examination of devices does not result in the police having carte blanche to begin the examination of the devices at whatever time they chose. On the contrary, sections 489.1 and 490 of the Criminal Code regulate the length of time after an item is seized that it may be kept for examination, including forensic analysis.

[46] Pursuant to s. 489.1, where a peace officer wants to detain an item seized pursuant to a search warrant, the officer must bring it before a justice, or make a report of the seizure to the justice. If the justice is satisfied that the thing seized should be detained for the purpose of an investigation, the justice shall order the thing detained pursuant to s. 490(1). The length of the detention for investigation is then governed by s. 490(2) and (3). As a result, there was no reason for the justice issuing the search warrant to set a time limit on the subsequent examination of the item seized, and no reason to interpret this warrant as doing so.

[47] Counsel for the applicant referred me to three judgments of trial courts in which the time for the search for and seizure of an electronic device was interpreted to also set a time limit for the forensic examination of the device (see R. v. Little, 2009 ONSC 41212, [2009] O.J. No. 3278, R. v. D’Souza, 2016 ONSC 5855, and R. v. Salmon, 2018 ONSC 5670). Each of these cases can be distinguished on their facts, either because of the duration of the time period for search and seizure in the warrant or because of specific assertions in the information. To the extent that these decisions are advanced as establishing any principle, I would not follow them. None of the decisions include a careful analysis of the issue. I prefer the decisions of Paciocco J., as he then was, in R. v. Barwell, [2013] O.J. No. 3743 (C.J.) of Coroza J. in R. v. Nurse and Plummer, 2014 ONSC 1779 and of McCombs J. in United States of America v. Viscomi, 2016 ONSC 5423.

[48] In Barwell, Paciocco J. noted, at para. 17, that in many instances, such as a search in a dwelling house for a computer, keeping the search period relatively brief protects privacy interests. On the other hand, forensic examinations take time, and it would be counter-productive to privacy interests to extend search and seizure periods for long periods of time in order to accommodate forensic examinations. I agree. It is desirable that authorizing justices focus on the appropriate time period for a search and seizure, and the time permitted for a forensic examination of things seized be left to the reporting and detention regime in the Code.

[49] I note as well that Nurse and Plummer were ultimately convicted, and an appeal from the convictions was taken to the Court of Appeal: R. v. Nurse, 2019 ONCA 260. On appeal, however, the appellants did not renew this argument. The Court noted at para. 131 that the appellants did not challenge the trial judge’s determination that “the analysis of the data on the devices did not need to take place within any particular time frame, and certainly not within time range set out for the execution of the warrant.”

Disposition

[50] I will not give effect to any of the arguments raised by the applicant. There was no breach of s. 8 of the Charter in the issuance or execution of the search warrant and production order, and no basis for a remedy pursuant to s. 24 of the Charter. The application is dismissed.

M. DAMBROT J.

RELEASED: June 13, 2019

Footnote:

[1] Consistent with the language in Form 1 of the Criminal Code, the warrant does not explicitly authorize a seizure of the things searched for, but this is implicit because the warrant requires the peace officers to bring the things searched for before a justice pursuant to s. 489.1 of the Code, and also because of the language of s. 487(1)(d) of the Code.