R. v. Zahrebelny

R. v. Zahrebelny

The seized cell phones were lawfully seized under s.489(1)(c) Criminal Code on reasonable grounds that their contents would afford evidence of trafficking; the scope of the search of a phone seized under s.489(1)(c) is limited to examination connected to those reasonable grounds, and in this case the examination of texts in a secure lab was within that scope and reasonable, so there was no s.8 breach and the exclusion motion fails.

Citation
2010 NSPC 91
Parties
Crown: Her Majesty the Queen; Accused: Tony Zahrebelny
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
13 September 2010
Procedural Posture
Criminal Controlled Drugs and Substances Act (possession for Purpose of Trafficking) / Voir Dire (application to Exclude Evidence)
Outcome
Application to exclude evidence dismissed; no Charter s.8 violation found.
Legal Topics
Section 8 Charter (unreasonable Search and Seizure), Section 24 Charter (exclusion of Evidence), Criminal Code S.489(1)(c) (seizure for Evidence), Search Incident to Arrest, Cell Phone Data Extraction, Warrantless Search
Source Language
English
Criminal Law Search and Seizure Constitutional Law Evidence Controlled Drugs and Substances Act Section 8 Charter (unreasonable Search and Seizure) Section 24 Charter (exclusion of Evidence) Criminal Code S.489(1)(c) (seizure for Evidence) +3 more

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Parties

Her Majesty the Queen

Crown

Tony Zahrebelny

Accused

Procedural Posture

Criminal Controlled Drugs and Substances Act (possession for Purpose of Trafficking) / Voir Dire (application to Exclude Evidence)

Legal Issues

  1. 1 Whether the warrant authorized search of the contents of seized cell phones
  2. 2 Whether seizure of cell phones under s.489(1)(c) Criminal Code was lawful
  3. 3 Scope of authority to search contents of a cell phone lawfully seized under s.489(1)(c) or incident to arrest

Ratio Decidendi

The seized cell phones were lawfully seized under s.489(1)(c) Criminal Code on reasonable grounds that their contents would afford evidence of trafficking; the scope of the search of a phone seized under s.489(1)(c) is limited to examination connected to those reasonable grounds, and in this case the examination of texts in a secure lab was within that scope and reasonable, so there was no s.8 breach and the exclusion motion fails.

Court Disposition

Application to exclude evidence dismissed; no Charter s.8 violation found.

Orders

  • The motion to exclude the information found in the accused’s cell phones is rejected.