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GARY BOTTING

604-817-7428

garybotting@shaw.ca

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Acquittal in death justified when the Crown violates the Charter

published May 5, 2021

The Canadian Broadcasting Corporation (CBC) recently published an alarming headline: “B.C. murder cases in jeopardy as accused killer walks free, police slammed for ignoring law.”

The article was referring to an alleged road rage incident that left one man dead and his wife seriously injured from gunshot wounds.  

The primary evidence that the Crown intended to use against the accused was his own alleged cellphone video recording of a bumper-thumper incident and the subsequent escalation when the victims got out of their car to confront him.  

The police had seized his cellphone from his residence pursuant to a search warrant. As required by s. 490 (1) of the Criminal Code, they reported their find to a justice, satisfying the court that they needed to detain the phone for their continued investigation and eventual trial. Thus, they initially complied with s. 8 of the Canadian Charter of Rights and Freedoms, which states, simply, “Everyone has the right to be secure against unreasonable search and seizure.”

They got their order. All well and good. At that point, they did not have to inform the accused of the evidence they had found on his phone.

Three-month limit on evidence seizure

However, there was a catch. Section 490 (2) puts a three-month time limit on such a seizure, following which the police or prosecutor would have to give three days’ notice to the accused of their application for an extension of time to detain the cellphone beyond the statutory three months.

That posed a problem for the police. Three months in, they did not want to tip off the accused or his lawyer of their find. To do so would allow him to raise defences that might jeopardize the successful prosecution of the case. After all, s. 603 of the Code specifies that an accused is entitled to inspect the evidence and exhibits only “after he has been ordered to stand trial.”

“Full disclosure” implies that the police and Crown must disclose everything touching the case in their possession, whether they think it relevant or not. Where the evidence has been seized and detained, the Criminal Code could not be clearer that the Crown is not allowed to cherry-pick disclosure of seized evidence it eventually intends to use in court.

Where, as here, the evidence was likely to be central to the case, it is all the more imperative for the prosecution to follow the directives of the Code to the letter.

Section 490 (3) limits the period of seizure to one year, after which the Crown must either seek the consent of the owner or apply to a higher court of criminal justice for a further extension of time, again with three days’ clear notice. The rightful owner of the seized cellphone was the accused.

Prosecution reluctant to tip its hand

Just as the prosecution had been reluctant to tip its hand and did not apply to a justice for an extension after three months, so once the year was up was it still reluctant give the required notice to the accused that it intended to apply for an extension—this time to a judge

By then, the continued detention of the cellphone had already become unreasonable, given the clear guidance in s. 490 of the Code, which presumptively is drafted to maintain compliance with the Charter.

Section 490 (9.1) provided the Crown with a loophole which on its face seemed to justify not giving notice to the accused. Under the heading “Exception,” that subsection states that “if the periods of detention … in respect of a thing seized have expired but proceedings have not been instituted,” a judge may order that the thing can “continue to be detained for such period as the judge or justice considers necessary.” 

That provision, however, is predicated on the accused having been informed of the existence and nature of the evidence in the first place, in compliance with the rest of s. 490.

With respect to CBC’s alarmist headline about “B.C. murder cases in jeopardy,” the Commentaries of William Blackstone come to mind: “It is better that ten guilty persons escape than one innocent suffer.” That principle is at the heart of the legal rights enunciated in the Canadian Charter of Rights and Freedoms – the left ventricle of Canada’s constitution.