R. v. Fardy

R. v. Fardy

The ITO provided a credibly‑based probability that the accused’s iPhone would afford evidence in the form of messages (SMS/MMS), call logs and social media application messages between the accused, complainants, witnesses and friends, therefore the warrant was valid to authorize seizure and search for those items; however, the ITO did not support a reasonable inference to search for or seize emails, photos or videos (nor internet history, conceded by Crown), and seizure of those items exceeded the authorization and violated s.8; the police’s failure to keep detailed notes did not amount to a Charter breach on these facts.

Citation
2023 NSSC 28
Parties
Crown: His Majesty the King; Accused: Jakob M. Fardy
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 January 2023
Procedural Posture
Criminal / Section 8 Charter Voir Dire (pre Trial S.8 Application)
Outcome
ITO and warrant upheld in part and set aside in part: warrant valid for messages, call logs and social media messages; search/seizure of photos, videos, emails and internet history violated s.8
Legal Topics
Search Warrant Validity, Overbroad Search, Mobile Phone Searches, Electronic Evidence and Authentication, Reasonable Grounds, Section 8 Charter, Section 24(2) Remedy, Police Note‑taking Requirements
Source Language
English
Criminal Law Constitutional Law Evidence Privacy Law Search and Seizure Digital Forensics Search Warrant Validity Overbroad Search +6 more

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Parties

His Majesty the King

Crown

Jakob M. Fardy

Accused

Procedural Posture

Criminal / Section 8 Charter Voir Dire (pre Trial S.8 Application)

Legal Issues

  1. 1 Whether the Information to Obtain (ITO) established reasonable grounds for a warrant to search the accused’s iPhone
  2. 2 Whether the police search exceeded the scope of the warrant (overbroad search/seizure)
  3. 3 Whether failure to keep detailed notes of the electronic search violated s.8

Ratio Decidendi

The ITO provided a credibly‑based probability that the accused’s iPhone would afford evidence in the form of messages (SMS/MMS), call logs and social media application messages between the accused, complainants, witnesses and friends, therefore the warrant was valid to authorize seizure and search for those items; however, the ITO did not support a reasonable inference to search for or seize emails, photos or videos (nor internet history, conceded by Crown), and seizure of those items exceeded the authorization and violated s.8; the police’s failure to keep detailed notes did not amount to a Charter breach on these facts.

Court Disposition

ITO and warrant upheld in part and set aside in part: warrant valid for messages, call logs and social media messages; search/seizure of photos, videos, emails and internet history violated s.8

Orders

  • Warrant upheld to authorize search and seizure of messages (SMS, MMS, etc.), call logs and social media application messages between the accused and complainants, witnesses and related acquaintances.
  • Search and seizure of photos, videos, emails and internet history exceeded the authorization and were seized in violation of s.8 of the Charter.