R. v. Dorey

R. v. Dorey

The forensic full-content download of the accused's cellphone performed more than a month after arrest, without a warrant or exigent circumstances, exceeded the authority of a search incident to arrest and violated s.8 of the Charter; accordingly the contents were excluded under s.24(2).

Citation
2011 NSPC 85
Parties
Crown: Her Majesty the Queen; Defendant: Stephen Alan Dorey
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 November 2011
Procedural Posture
Criminal (controlled Drugs and Substances Act S.5(2)) / Pre Trial Charter Application to Exclude Evidence Under S.24(2)
Outcome
Contents of the cellphone excluded; s.8 Charter violation found; evidence excluded under s.24(2).
Legal Topics
Charter S.8 (unreasonable Search and Seizure), Charter S.24(2) (exclusion of Evidence), Search Incident to Arrest, Forensic Download of Mobile Device Data
Source Language
English
Constitutional Law Criminal Law Search and Seizure Evidence Charter S.8 (unreasonable Search and Seizure) Charter S.24(2) (exclusion of Evidence) Search Incident to Arrest Forensic Download of Mobile Device Data

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Parties

Her Majesty the Queen

Crown

Stephen Alan Dorey

Defendant

Procedural Posture

Criminal (controlled Drugs and Substances Act S.5(2)) / Pre Trial Charter Application to Exclude Evidence Under S.24(2)

Legal Issues

  1. 1 Whether police had authority to perform a complete forensic download of the accused's cellphone more than a month after arrest
  2. 2 Whether a warrant was required to extract cellphone contents absent exigent circumstances
  3. 3 Whether the download violated s.8 of the Charter

Ratio Decidendi

The forensic full-content download of the accused's cellphone performed more than a month after arrest, without a warrant or exigent circumstances, exceeded the authority of a search incident to arrest and violated s.8 of the Charter; accordingly the contents were excluded under s.24(2).

Court Disposition

Contents of the cellphone excluded; s.8 Charter violation found; evidence excluded under s.24(2).

Orders

  • Contents of the accused's cellphone excluded from evidence under s.24(2) of the Charter.