On June 21, 2018, the Alberta Court of Appeal issued its decision in R v Villaroman (2018 ABCA 220), finding that Mr Villaroman’s section 8 Charter right to be secure against unreasonable search or seizure were violated by a computer search authorized under the general warrant provisions of the Criminal Code (Code). 

Villaroman’s laptop was seized on December 11, 2009 and remained in police custody until March 1, 2010 when the authorizing judge granted a general warrant permitting the police to conduct forensic imaging of the computer. Under the Code, peace officers are required to account for seized property in the course of an investigation “as soon as is practicable”.  The officer filed Form 5.2 to account for the property but only did so after the general warrant was granted.

Villaroman submitted that the police search of his laptop was unreasonable and sought the exclusion of the evidence obtained by arguing that the computer was not the proper subject of a general warrant, and the officer failed to comply with certain mandatory requirements under the Code. The Court agreed.  The Court found that the warrant was obtained under the wrong provision of the Code and thus  was not authorized by law.  A section 478 warrant should have been obtained instead.  Furthermore, the Court noted that the investigating officer had failed to file the required Form promptly after seizing Villaroman’s laptop.  This too amounted to a breach of Villaroman’s section 8 Charter rights.

Having established a breach of the appellant’s rights, the Court then considered whether the evidence obtained by the search should still be admitted under section 24(2) of the Charter, which requires that evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter be excluded if admission of it would bring the administration of justice into disrepute. The Court found that the breaches had “little practical impact” on Villaroman’s informational privacy rights and refused to exclude the evidence obtained by the search.

Summary By: Jae Morris

 

E-TIPS® ISSUE

18 07 11