R. v. Didechko (K.)

• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Schutz, J.
• Citation: [2015] A.R. TBEd. OC.063,2015 ABQB 642
• Date: 13 October 2015

R. v. Didechko (K.), [2015] A.R. TBEd. OC.063

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Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. OC.063

Her Majesty the Queen (respondent/Crown) v. Kenneth Didechko (applicant/accused)

(130836984Q1; 2015 ABQB 642)

Indexed As: R. v. Didechko (K.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schutz, J.

October 13, 2015.

Summary:

The accused was allegedly involved in a hit and run accident, whereby a person was struck and killed. The accused was charged with giving a false statement (Criminal Code, s. 139(2)), unlawfully causing bodily harm (s. 269), failing to stop at a scene of an accident resulting in death (s. 252(1.3)), and dangerous operation of a motor vehicle causing death (s. 249(4)). The accused applied under s. 24(2) of the Charter to have some of the evidence excluded on the basis that his rights under s. 8 of the Charter were infringed by the police in the process of obtaining the challenged evidence. In particular, the accused challenged searches and seizures relating to a vehicle, a Dodge Charger, the search of a GPS navigation system in the vehicle, the sufficiency of the Informations To Obtain for production orders relating to cell phone records and the police acquisition of stored text messages. The Dodge Charger was a demonstrator vehicle belonging to the accused's employer, a car dealership.

The Alberta Court of Queen's Bench held that the accused had no standing to challenge any of the impugned searches or seizures respecting the Charger or the GPS navigation system in the Charger because he did not have a reasonable expectation of privacy in the vehicle or the GPS. In any event, even if there were Charter breaches, admission of the evidence found would not bring the administration of justice into disrepute. As to the production order for the accused's cell phone records, the court held that there existed sufficient grounds on the face of the Information To Obtain for the issuance of the production order. Therefore, there was no s. 8 breach, and the accused's application to exclude from trial the evidence obtained as a result of the production order was dismissed. With respect to the other production orders under s. 487.102 of the Code for recorded records (incl. text messages), the court held that acquisition of text messages by the police did not constitute an interception of private communications. Production orders under s. 487.012 of the Criminal Code were different than intercept orders under Part VI of the Code. The court concluded that as to the production orders for records from a third party's phone that included the content of text messages, the accused did not have a privacy interest in text messages he sent to the third party. Therefore, the accused had no standing to challenge those production orders under s. 8 of the Charter.

Civil Rights - Topic 1508

Property - Expectation of privacy - See paragraphs 77 to 93, 111 to 138, 161 to 165, and 292 to 303.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones, social media messages or digital cameras) - See paragraphs 223 to 303.

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - See paragraphs 223 to 303.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - See paragraphs 35 to 110.

Civil Rights - Topic 1651.1

Property - Search and seizure - Warrantless search and seizure - GPS navigation system - See paragraphs 144 to 169.

Civil Rights - Topic 1657.1

Property - Search and seizure - Search with warrant - Motor vehicles - See paragraphs 111 to 143.

Civil Rights - Topic 1657.2

Property - Search and seizure - Search with warrant - GPS navigation system - See paragraphs 169 to 191.

Criminal Law - Topic 3012

Special powers - Third party production orders - When available - See paragraphs 251 to 279.

Criminal Law - Topic 3042.1

Special powers - Search warrants - When available - See paragraphs 131 to 138.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 103 to 109, 139 to 143, 166 to 169, 187 to 191, 246 to 250, and 275 to 279.

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - See paragraphs 32 to 34, 77 to 93, 111 to 138, 161 to 165, and 292 to 303.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - See paragraphs 32 to 34, 77 to 93, 111 to 138, 161 to 165, and 292 to 303.

Counsel:

Chady F. Moustarah and Raj S. Gill (Moustarah & Company), for the applicant/accused;

James E. Stewart (Specialized Prosecution Branch), for the respondent/Crown.

This voir dire was held on from June 22 to 26, 2015, before Schutz, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision on October 13, 2015.