R. v. Croft (J.C.), (2014) 608 A.R. 49 (QB)

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 31, 2014
• Citations: (2014), 608 A.R. 49 (QB);2014 ABQB 208

R. v. Croft (J.C.) (2014), 608 A.R. 49 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.097

Her Majesty the Queen v. Jason Clarke Croft

Her Majesty the Queen v. Jason Clarke Croft and Wassim Rahime

Her Majesty the Queen v. Jonathan Mark Rivera Aldaba, Jason Clarke Croft and Steven Daniel Whipple (accused)

(121085393Q1; 121085591Q1; 121086227Q1; 2014 ABQB 208)

Indexed As: R. v. Croft (J.C.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

March 31, 2014.

Summary:

The four accused were charged with drug offences. In this pretrial motion, the accused Croft, Aldaba and Whipple submitted that searches the police conducted of the contents of smart phones, computers and other computer-like devices which were seized were unauthorized and unreasonable, and that their Charter s. 8 rights were therefore violated. The issues to be determined were: (a) whether the police authority to search incidental to arrest extended to searches of the data contents of smart phones found at the time of the arrests; and (b) whether the police authority to search Croft's residence pursuant to a search warrant included authority to search the data contents of memory storage devices found in the search, on the basis that those devices did not have the character of a computer.

The Alberta Court of Queen's Bench held that: (a) the searches of the data contents of the smart phones seized at the time of the lawful arrests were not within the police common law authority to search incidental to arrest and were unreasonable. Each search constituted a breach of the Charter s. 8 rights of the accused; and (b) the search executed at Croft's residence did not authorize the data search of any of the computers, cell phones or memory storage devices seized from his residence. The data searches breached Croft's Charter s. 8 rights.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See both Civil Rights - Topic 1524 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cell phones or digital cameras) - Smart phones, computers and computer-like devices were seized when the accused Croft's residence was searched pursuant to search warrants - The data contents of those devices were searched - The Crown conceded, given the decision in R. v. Vu (2013) (S.C.C.), that Croft's Charter s. 8 rights were breached when the data contents of those devices were searched, but did not concede that Vu applied to the six computer memory storage devices (three "flash drives" and three "memory cards", one of which was inside a digital camera) - The Alberta Court of Queen's Bench held that the storage devices were within the exception recognized in Vu for computers - "[T]he extent of the differences between the memory storage devices and computers was not addressed in the evidence in any direct or clear manner. ... A flash drive or a memory card ... is the same for the purposes of this analysis as the internal hard drive of a laptop computer." - The search executed at Croft's residence did not authorize the data search of any of the computers, cell phones or memory storage devices seized - The data searches of those devices breached Croft's Charter s. 8 rights - See paragraphs 8 to 23.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cell phones or digital cameras) - Smart phones were seized from each of the three accused when they were arrested - The Crown took the position that when the data contents of those smart phones were later searched, it was pursuant to the common law authority to search incidental to arrest - The Alberta Court of Queen's Bench held that the data content searches of the smart phones were not within the police power to search incidental to arrest - Each search constituted a breach of the Charter s. 8 rights of the accused - "[A] search of the contents of the smart phone found in the place where the accused was arrested is not a search of the place where the accused was arrested. ... Here, the exigency element had long evaporated by the time the data searches were undertaken. ...The significance of the delay in conducting the searches is that it demonstrates that the search was disconnected from the arrest. ... There was no reason to deviate from the default reasonable search procedure - the obtaining of prior judicial authorization." - Further, the police capability to apply filters to limit the search to information most likely to have evidentiary value, had expanded significantly in the three years since the data searches - See paragraphs 24 to 50.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See both Civil Rights - Topic 1524 ].

Civil Rights - Topic 1655.2

Property - Search and seizure - Warrantless search and seizure - Computers - [See first Civil Rights - Topic 1524 ].

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - [See second Civil Rights - Topic 1524 ].

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See first Civil Rights - Topic 1524 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See second Civil Rights - Topic 1524 ].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See first Civil Rights - Topic 1524 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1524 ].

Cases Noticed:

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, appld. [para. 4].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, consd. [para. 31].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 2013 NSCA 48, consd. [para. 31].

R. v. Vye (D.E.), [2014] B.C.T.C. Uned. 93; 2014 BCSC 93, refd to. [para. 31].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 33].

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 33].

R. v. Morelli - see R. v. U.P.M.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 2].

Counsel:

Dennis Hrabcak and Dawn MacDonald, for the Crown;

Simon Renouf, Q.C., Julia Renouf and Adam Badari, for Steven Daniel Whipple;

Clayton Rice and Tara Hayes, for Jonathan Mark Rivera Aldaba;

Gregory Lazin, for Jason Clarke Croft;

Aleksandra Simiæ and Alexandra Seaman, for Wassim Rahime.

This pre-trial motion was heard on March 24-26, 2014, before Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following ruling, dated at Edmonton, Alberta, on March 31, 2014.