R. v. Montgomery
On the facts the manner of the search was reasonable: the officer had and produced the warrant to the accused and showed it to the occupant (telewarrant facsimile requirement breached but not in bad faith), the late filing of Form 5.2 was a technical/administrative error that did not frustrate the purposes of the...
Source-derived case information.
- Citation
- 2013 BCSC 1008
- Parties
- Crown: Regina; Accused: Clifford Roger Montgomery; Accused: Tariq Mohammed Aslam; Accused: Salvador Ascencio-Chavez
- Court
- Supreme Court of British Columbia
- Jurisdiction
- Canada
- Judgment Date
- 6 May 2013
- Procedural Posture
- Criminal Search Warrant/charter Voir Dire / Oral Ruling on Voir Dire Re Manner of Search
- Outcome
- Application dismissed on all s.8 grounds; manner of search found reasonable and no Charter breach; evidence from searches not excluded on this voir dire
- Legal Topics
- Search Warrant Execution, Telewarrant Requirements, S.8 Charter (unreasonable Search and Seizure), Form 5.2/returns, Detention Orders, Search Incidental to Arrest, Electronic Device Data Extraction, Scope of Seizure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Regina
Crown
Clifford Roger Montgomery
Accused
Tariq Mohammed Aslam
Accused
Salvador Ascencio-Chavez
Accused
Procedural Posture
Criminal Search Warrant/charter Voir Dire / Oral Ruling on Voir Dire Re Manner of Search
Legal Issues
- 1 Whether the presenting of the warrant complied with statutory requirements and s.8
- 2 Whether failure to leave a copy of the warrant with the occupant breached s.8
- 3 Whether the late filing of Form 5.2 rendered the search unlawful
Ratio Decidendi
On the facts the manner of the search was reasonable: the officer had and produced the warrant to the accused and showed it to the occupant (telewarrant facsimile requirement breached but not in bad faith), the late filing of Form 5.2 was a technical/administrative error that did not frustrate the purposes of the statutory return and did not render the search unlawful, seized items were within the scope of the warrant (and seizure lawful), and examination/data extraction from seized electronic devices was lawful under existing British Columbia authority as an incident of arrest and lawful detention orders; therefore no s.8 Charter breach occurred.
Court Disposition
Application dismissed on all s.8 grounds; manner of search found reasonable and no Charter breach; evidence from searches not excluded on this voir dire
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