R. v. Herritt

R. v. Herritt

Court held the Crown may use the forensic analysis of the seized smartphone subject to protection for any solicitor-client privileged items identified by defence counsel after a supervised review; ordering the accused's counsel to review Exhibit A to identify and redact privileged material, with the court maintaining supervisory review, is an appropriate and proportionate procedure in these circumstances.

Citation
2018 NSSC 229
Parties
Crown/prosecution: Her Majesty the Queen; Accused/defendant: Anthony Robert Herritt
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
13 September 2018
Procedural Posture
Criminal / Pre Trial Ruling on Admissibility of Forensic Analysis of Seized Smartphone (evidence Motion)
Outcome
Crown's application granted: forensic analysis admissible subject to identification and redaction of solicitor-client privileged items and judicial supervision.
Legal Topics
Solicitor Client Privilege, Lavallee Framework, Search Incident to Arrest, Forensic Analysis of Mobile Devices, Judicial Supervision of Privilege Review
Source Language
English
Criminal Law Evidence Professional Privilege Search and Seizure Digital Forensics Solicitor Client Privilege Lavallee Framework Search Incident to Arrest +2 more

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Parties

Her Majesty the Queen

Crown/prosecution

Anthony Robert Herritt

Accused/defendant

Procedural Posture

Criminal / Pre Trial Ruling on Admissibility of Forensic Analysis of Seized Smartphone (evidence Motion)

Legal Issues

  1. 1 Whether the Crown may use forensic analysis of a smartphone seized at arrest in evidence
  2. 2 How to protect solicitor-client privileged material discovered in a phone search
  3. 3 Whether defence counsel can be directed to review seized material to identify privileged items and return redactions to the court

Ratio Decidendi

Court held the Crown may use the forensic analysis of the seized smartphone subject to protection for any solicitor-client privileged items identified by defence counsel after a supervised review; ordering the accused's counsel to review Exhibit A to identify and redact privileged material, with the court maintaining supervisory review, is an appropriate and proportionate procedure in these circumstances.

Court Disposition

Crown's application granted: forensic analysis admissible subject to identification and redaction of solicitor-client privileged items and judicial supervision.

Orders

  • Defence counsel Dr. Joshua Nodelman shall receive the original copy of Exhibit A to the Castellarin affidavit and review it to determine whether any contents are protected by solicitor-client privilege.
  • After review, Dr. Joshua Nodelman shall return the original of Exhibit A to the Court.