Vanessa Arsenault

The accused were charged with importing approximately 30 kilograms of cocaine and possession for the purpose of trafficking.

They brought pre‑trial applications seeking exclusion of statements, cell phone evidence, and evidence obtained during a residential search, alleging multiple Charter breaches including violations of ss. 10(b) and 8.

The court found serious breaches including delays in implementing the right to counsel, police questioning prior to consultation with counsel, failure to ensure the accused understood their rights due to language barriers, and unlawful warrantless searches of a cell phone.

The unlawfully obtained phone evidence formed a central basis for a search warrant; once excised from the Information to Obtain, the warrant could not stand.

Applying the framework from R v Grant, the court excluded the accused’s statements and the cell phone evidence, resulting in exclusion of all derivative evidence from the residential search.

The accused, charged with importing cocaine, brought pre-trial motions challenging the admissibility of their statements to police, the lawfulness of a cell phone search incident to arrest, and the validity of a search warrant for a residence.

The court found multiple breaches of the accused's s. 10(b) right to counsel, including delays in facilitating access, eliciting evidence prior to access, and failing to ensure comprehension given language barriers.

The court also held that the warrantless search of the accused's cell phone contents incident to arrest violated s. 8 of the Charter, as cell phones attract a high expectation of privacy requiring prior judicial authorization absent exigent circumstances.

The determination of remedies under s. 24(2) was deferred.