R. v. Hiscoe (J.S.), 2013 NSCA 48

Judge:Oland, Hamilton and Beveridge, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:April 23, 2013
Jurisdiction:Nova Scotia
Citations:2013 NSCA 48;(2013), 328 N.S.R.(2d) 381 (CA)
 
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R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381 (CA);

    1039 A.P.R. 381

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Temp. Cite: [2013] N.S.R.(2d) TBEd. AP.028

Her Majesty the Queen (Public Prosecution Service of Canada) (appellant) v. Jamie Scott Hiscoe (respondent)

(CAC 386719; 2013 NSCA 48)

Indexed As: R. v. Hiscoe (J.S.)

Nova Scotia Court of Appeal

Oland, Hamilton and Beveridge, JJ.A.

April 23, 2013.

Summary:

The accused was arrested for possession of cocaine for the purpose of trafficking. The police seized his "smart" phone and looked at his recent text messages, which an officer later copied in writing. One month later, without obtaining a warrant, the entire content of the phone was downloaded (data dump) by the R.C.M.P. Crime Lab. The accused sought exclusion of all information obtained from his phone (Charter, s. 24(2)), alleging that the warrantless search constituted an unreasonable search and seizure (s. 8).

The Nova Scotia Provincial Court, in a judgment reported (2011), 310 N.S.R.(2d) 142; 983 A.P.R. 142, held that the search of recent text messages at the arrest scene constituted a lawful search incidental to arrest. Section 8 was not violated and the evidence of what the police saw and transcribed, was admissible. However, the subsequent data dump fell outside the lawful authority to search incidental to arrest and constituted an unreasonable search and seizure. The evidence obtained in the data dump was excluded under s. 24(2).

The Nova Scotia Provincial Court, in a judgment reported 2012 NSPC 21, found that accused not guilty of possession of cocaine for the purpose of trafficking, but guilty of the included offence of possession of cocaine. The Crown appealed, arguing that the trial judge erred in finding that the data dump without warrant violated s. 8 of the Charter. The Crown was precluded from arguing the evidence should not have been excluded under s. 24(2), as it deliberately chose not to raise this argument at trial.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The accused was lawfully arrested for a drug offence - The police seized his "smart" phone and cursorily examined his recent text messages, later transcribing them - One month later, without first obtaining a warrant, the entire contents of the phone were downloaded (data dump) by the R.C.M.P. Crime Lab - The trial judge held that the cursory search of recent text messages at the arrest scene was a lawful search incidental to arrest for the purpose of discovering and preserving evidence respecting the offence for which the accused was arrested (e.g., score sheets, contact names and other drug trade information that could be deleted, including remotely) - Section 8 of the Charter was not violated and the evidence of what the police saw and transcribed, was admissible - However, the subsequent downloading of the entire contents of the phone, without warrant, constituted an unreasonable search and seizure and the evidence obtained was excluded - That search was not incidental to arrest - The judge noted that "smart" phones had the capacity to store vast amounts of sensitive and personal information, including emails, text messages, contact lists, diaries, medical information, personal photographs and internet browsing histories - The accused had a reasonable expectation of privacy - It was irrelevant that the phone was not password protected - A full download search was too broad - There was no attempt to restrict the search to locations where the prospects of locating evidence respecting the offence was reasonable - The judge stated that "police should not be able to search beyond a cursory review of the cell phone contents without a search warrant" - The Nova Scotia Court of Appeal affirmed that the data dump without warrant was an unreasonable search and seizure - There was no error in finding that the one month delay between the arrest and the data dump "significantly eroded any connection with the arrest" or in finding a heightened expectation of privacy in a "smart" phone containing a person's "entire persona information library" - The data dump was not part of the valid search incidental to the arrest - The court opined that whether the information was password or otherwise protected was "not substantively helpful in determining the privacy interests of the accused in the contents of his cell phone" - See paragraphs 22 to 81.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1655.3 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Right of appeal - By Crown - At a trial voir dire, the Crown opposed the accused's argument that certain evidence was obtained pursuant to an unreasonable search and seizure (Charter, s. 8) - The Crown deliberately chose not to oppose exclusion of such evidence under s. 24(2) - The Crown advised that it was "prepared to let that evidence be ruled inadmissible" - The Crown, on appeal, argued not only that the evidence was not obtained in violation of s. 8 but that, in any event, it should not have been excluded under s. 24(2) - The Nova Scotia Court of Appeal struck the s. 24(2) ground of appeal - The court stated that "the Crown cannot raise arguments on appeal that it chose not to advance at trial ... the Crown must live with its strategic decisions both at trial and on appeal. The liberty of an accused should not be jeopardized by permitting the Crown to advance an issue for the first time on appeal." - See paragraphs 14 to 17.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1655.3 ].

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 11].

R. v. Varga (E.) (1994), 72 O.A.C. 141 (C.A.), refd to. [para. 17].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 20].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 21].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 30].

R. v. Tessling (W.) (2004), 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 31].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 32].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 32].

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. 34].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 34].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 37].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 37].

R. v. Golden (I.V.) (2001), 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 37].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 40].

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

R. v. Cole (R.) et al. (2012), 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 41].

R. v. Liew (S.F.) et al., [2012] O.T.C. Uned. 1826; 2012 ONSC 1826, refd to. [para. 44].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 45].

R. v. Otchere-Badu (F.), [2010] O.T.C. Uned. 1059; 2010 ONSC 1059, refd to. [para. 45].

R. v. Cater (K.) (2012), 312 N.S.R.(2d) 242; 987 A.P.R. 242; 2012 NSPC 2, refd to. [para. 45].

R. v. Polius (K.), [2009] O.T.C. Uned. H39 (Sup. Ct.), refd to. [para. 48].

R. v. Manley (M.) (2011), 275 O.A.C. 81; 2011 ONCA 128, refd to. [para. 48].

R. v. Fearon (K.) (2013), 302 O.A.C. 284; 2013 ONCA 106, refd to. [para. 48].

R. v. Dyment (1988), 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244 (S.C.C.), refd to. [para. 50].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 50].

R. v. Little, [2009] O.J. No. 3278, refd to. [para. 51].

R. v. Finnikin (C.) et al., [2009] O.T.C. Uned. X47 (Sup. Ct.), refd to. [para. 51].

R. v. D'Annunzio, [2010] O.J. No. 4333, refd to. [para. 51].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 64].

R. v. TELUS Communications Co. (2013), 442 N.R. 1; 304 O.A.C. 1; 2013 SCC 16, refd to. [para. 71].

R. v. Araujo (A.) et al. (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 72].

Counsel:

David Schermbrucker and Suhanya P. Edwards, for the appellant;

Kenneth C. Greer, for the respondent.

This appeal was heard on October 10, 2012, at Halifax, N.S., before Oland, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On April 23, 2013, Oland, J.A., delivered the following judgment for the Court of Appeal.

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