R. v. Bottomley

R. v. Bottomley

The court held that forensic extraction of data from seized electronic devices constitutes a 'seizure' and therefore falls within the reporting requirements of s.489.1(1) of the Criminal Code; the police's failure to file Form 5.2 reports for extracted data breached the applicants' s.8 Charter rights and, given the facts and binding authority in R. v. Craig and R. v. T., also amounted to an abuse of process contrary to s.7; remedy was reserved for further submissions.

Citation
2022 BCSC 2192
Parties
Crown/prosecution: Rex; Accused: Jordan Robert James Bottomley; Accused: Munroop Singh Hayer; Accused: Jagpal Singh Hothi; Accused (not Participating): Jasman Basran
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
14 December 2022
Procedural Posture
Criminal (first Degree Murder; Charter Applications) / Voir Dire and Reasons for Judgment on Search of Electronic Devices and Compliance With S.489.1 (remedy Reserved)
Outcome
Application granted in part: breaches found (s.8 and s.7) relating to extraction of data and failure to file Form 5.2s; remedy to be determined after submissions
Legal Topics
S.489.1 Criminal Code (form 5.2 Reporting), S.490 Criminal Code, S.8 Charter (unreasonable Search and Seizure), S.7 Charter (abuse of Process), Electronic Device Searches and Data Extraction, Horizontal Stare Decisis (sullivan)
Source Language
English
Criminal Law Constitutional Law Procedural Law Evidence Law S.489.1 Criminal Code (form 5.2 Reporting) S.490 Criminal Code S.8 Charter (unreasonable Search and Seizure) S.7 Charter (abuse of Process) +2 more

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Parties

Rex

Crown/prosecution

Jordan Robert James Bottomley

Accused

Munroop Singh Hayer

Accused

Jagpal Singh Hothi

Accused

Jasman Basran

Accused (not Participating)

Procedural Posture

Criminal (first Degree Murder; Charter Applications) / Voir Dire and Reasons for Judgment on Search of Electronic Devices and Compliance With S.489.1 (remedy Reserved)

Legal Issues

  1. 1 Whether extraction of data from seized electronic devices constitutes a 'seizure'
  2. 2 Whether s.489.1(1) Criminal Code reporting (Form 5.2) applies to extracted data
  3. 3 Whether failure to file Form 5.2s for extracted data breaches s.8 of the Charter

Ratio Decidendi

The court held that forensic extraction of data from seized electronic devices constitutes a 'seizure' and therefore falls within the reporting requirements of s.489.1(1) of the Criminal Code; the police's failure to file Form 5.2 reports for extracted data breached the applicants' s.8 Charter rights and, given the facts and binding authority in R. v. Craig and R. v. T., also amounted to an abuse of process contrary to s.7; remedy was reserved for further submissions.

Court Disposition

Application granted in part: breaches found (s.8 and s.7) relating to extraction of data and failure to file Form 5.2s; remedy to be determined after submissions

Orders

  • Remedy and any exclusionary relief to be determined following submissions by counsel
  • Publication ban under s.486.5 Criminal Code applies indefinitely with respect to witness identified as A.B.