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The Court of Appeal dismissed the Crownâs appeal, upholding exclusion of cellphone and surveillance evidence after unlawful seizure and prolonged detention breaches under the Charter.
The court excluded evidence from an iPhone, two BlackBerrys, and SVAT footage after finding serious s. 8 breaches from over-seizure and prolonged over-holding.
The court found an over-seizure when police seized nine cell phones and a SVAT system not listed in the warrant, breaching s. 8 of the Charter.
Mr. Edwardsenâs conviction appeal was dismissed. The court held he validly waived attendance for the evidence tendered in his absence, and no voir dire was required on the renewed Charter issues.
A Garofoli voir dire partly succeeded. The court excised one unclear ITO statement, upheld the warrant, found some over-seizure, but admitted the evidence under s. 24(2).
Section 15 confers a discretionary power to order that seized records be sent to the requesting state even where the warrant was overbroad or there was overseizure, provided the reviewing judge rigorously scrutinizes execution, declines to send where there was a significant failure to execute according to terms, and balances factors including the seriousness of the defect, conduct of authorities and Canadaâs international obligations; an item-by-item review may be appropriate in some cases.
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The Court dismissed the Crown's appeal and upheld the motions judge: the affidavits supporting the three search warrants failed to provide full, frank and fair disclosure and contained misleading/irrelevant material; the warrants were overbroad and exceeded the authority in s.487(1)(b); and s.9(1)(c) of the Radiocommunication Act is ambiguous and, when interpreted in favour of the accused, did not establish a known offence for the respondents' conduct, justifying quashing the warrants and ordering return of seized property.
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