R. v. Law

R. v. Law

The statutory scheme in ss.487, 489.1 and 490 does not, on its face, violate the Charter because it provides for judicial supervision of detained items; the defence identified police non‑compliance with s.490 rather than a legislative void. The police were not entitled to rely on s.490(2)(b) to indefinitely detain...

Source-derived case information.

Citation
2018 BCSC 12
Parties
Crown: Regina; Accused: Ying Ho Raymond Law
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
4 January 2018
Procedural Posture
Criminal / Ruling on Constitutional Question (pre Trial)
Outcome
Constitutional challenge dismissed; court finds police failed to follow s.490 procedures for unsearched digital devices and directs statutory remedies
Legal Topics
Section 7 Charter, Section 8 Charter, Section 24(2) Charter, Search Warrants, Digital Devices and Electronic Evidence, Section 487 Criminal Code, Section 489.1 Criminal Code, Section 490 Criminal Code, Judicial Oversight of Seized Items
Source Language
english
Criminal Law Constitutional Law Charter Law Privacy Law Search and Seizure Section 7 Charter Section 8 Charter Section 24(2) Charter +6 more

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Parties

Regina

Crown

Ying Ho Raymond Law

Accused

Procedural Posture

Criminal / Ruling on Constitutional Question (pre Trial)

Legal Issues

  1. 1 Whether ss. 487, 489.1 and 490 of the Criminal Code infringe s.7 and/or s.8 of the Charter by permitting ongoing seizure of digital devices without adequate judicial oversight
  2. 2 Whether a judicially enforceable 30‑day review or other ongoing oversight must be read into s.490 for digital devices
  3. 3 Whether evidence seized from detained but unsearched digital devices should be excluded under s.24(2) of the Charter

Ratio Decidendi

The statutory scheme in ss.487, 489.1 and 490 does not, on its face, violate the Charter because it provides for judicial supervision of detained items; the defence identified police non‑compliance with s.490 rather than a legislative void. The police were not entitled to rely on s.490(2)(b) to indefinitely detain unsearched devices once charges were laid; they should have applied under s.490(2)(a) before expiry of the initial three‑month period with notice to the accused. The constitutional challenge is dismissed; return of irrelevant devices is required and the defence may seek relief under s.490.

Court Disposition

Constitutional challenge dismissed; court finds police failed to follow s.490 procedures for unsearched digital devices and directs statutory remedies

Orders

  • Constitutional challenge dismissed.
  • Police to return the four hard drives found to be irrelevant.