I need advice on what codes have been breached during a search and seizure as well as on a late notice of application to

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Customer: I need advice on what codes have been breached during a search and seizure as well as on a late notice of application to the courts for detention of items seized
JA: Have any charges been filed? If so, when is the next court date?
Customer: No charges have been laid, the notice of application court date is June 10th 2021
JA: In what state did this occur?
Customer: Canada yukon
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Yes, the officer who filed his affidavit states he was unfamiliar with the proper procedure and that is why he is late on apply for an extension of things seized and a warrant to search cellphone
Answered by LawyerGreg in 9 hours 1 year ago
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LawyerGreg
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LawyerGreg
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LawyerGreg, Expert

Hello, my name is ***** ***** JustAnswer and I'm here to help.

Can you tell me about what took place during the search and seizure, so I can help identify which, if any, Charter breaches took place?

Customer
File attached (S6QZ41M)
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LawyerGreg, Expert

Is there another page coming, or is it just the two pages?

Customer
File attached (5S36ZZS)
Customer
Hello the 3 pages I have sent is my story of what happened. These next 4 pages are describing what I believe they did was wrong I just don't know of the codes they have breached
Customer
File attached (2M7QLTS)
Customer
File attached (ZLZLTPM)
Customer
Sorry there should be 6 pages all together
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LawyerGreg, Expert

Thank you for sharing. Give me a few moments.

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LawyerGreg, Expert

Ok. There's a lot to unpack here, so it'll take me a little bit to get through.

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LawyerGreg, Expert

Are you able to upload a copy of the search warrant as well?

Customer
File attached (SQZP1TM)
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LawyerGreg, Expert

OK. Thank you for sharing further.

Customer
I can also upload Cst. Nick Arthur's affidavit as well
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LawyerGreg, Expert

Thats OK, I don't need that.

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LawyerGreg, Expert

Was Carmen Stewart arrested, or just pulled over?

Customer
She was arrested and in custody for 24 hrs
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LawyerGreg, Expert

OK. In relation to the cell phone seizure:

In R. v. Fearon (2014), the Supreme Court of Canada maintained that there is a lower expectation of privacy during times of lawful arrest. Accordingly, the Court found that a police officer may search a cell-phone incidental to an arrest where:


  • The arrest was lawful;

  • [T]he police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

    • Protecting the police, the accused, or the public;

    • Preserving evidence; or

    • Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest;



  • The nature and the extent of the search are tailored to the purpose of the search; and

  • The police take detailed notes of what they have examined on the device and how it was searched.

In v. Hiscock (2016), the court suggested that although a police officer may seize one’s cell-phone incidental to arrest, the accused is not required to reveal the passcode and any detail about the password ***** be obtained voluntarily and consensually.

If the police seized the property as evidence, it will likely be held until the conclusion of the criminal case.  Depending on the particulars of your case, this process can take weeks, months or even years. In this particular case, charges may not have even been laid yet, meaning that the phone may have been seized as a result of an ongoing criminal investigation.  If the police initially seized property as “evidence” and it is later determined not to be relevant to the case, your defense attorney could speak with the prosecutor in an attempt to arrange a return prior to the conclusion of the case.  However, as noted above those arrangements are the exception and not the rule.

Carmen should start by calling the police department that seized the cell phone, and ask for it to be returned. Alternatively, under s. 490 of the Criminal Code, they can make an application to the judge for an order for the goods to be returned.

I will turn to the second point you made next.

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LawyerGreg, Expert

Second, regarding the second list of things you think may have been code breaches.

While conducting the search of the home, anything that the police believe to be illegal can be seized if they are in plain view, or are found during the search. The police may only search in places where they might reasonably expect to find the goods. For example, if the search warrant specifies a stolen refrigerator and the police find a small bag of marijuana in a dresser drawer, the search may not be reasonable, since the police could not reasonably have expected to find a refrigerator in a small drawer. The search warrant also specifies what goods may be searched for, but evidence in the plain view of a police officer during a search can be seized even though it does not relate to the offence. For example, where police have a warrant to search your home for stolen electronic merchandise and they find 20 marijuana plants during the search, the plants can be seized even thought they are not mentioned in the warrant.

The marijuana being seized is odd to me, and stands out as being unreasonable. I am unclear under what authority the marijuana was seized. It should not have been based on the warrant.

In regards ***** ***** gunsafe; as noted above, the police can reasonably search within things they believe may contain the items in question, such as in the locked gunsafe. While they should/could have asked for the lock code, they are not obligated to. You could potentially pursue a lawsuit against the police department for damage caused to the gunsafe, and the damage from bringing the gunsafe outside, which you mentioned at some point.

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LawyerGreg, Expert

Turning to the third point, regarding the cellphone seized.

S. 490(2)(a) of the Criminal Code allows for an application to extend the period of time held. It is here:

(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or

They can apply for the extension, but they will have to convince a justice to grant the extension. It sounds like you are very well prepared to fight the application, and your reasons seem convincing to me. A judge may see things the same way, and I hope they do!

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LawyerGreg, Expert

Turning to the fourth point, regarding Cst. Nick Arthur's affidavit.

I think this is a great point, and something you should bring up. Not necessarily the issue regarding 'what else does he not have time to properly do', but definitely the issue regarding his claimed lack of knowledge regarding proper procedure. If he claims to work alongside those who are familiar with the proper procedure, then he should not have a reason for the continued detention, and ignorance of the proper procedures. I think this is an excellent point, and certainly one you should raise.

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LawyerGreg, Expert

Turning to your fifth point, regarding family members being pulled over.

This is a tough one. The police may still have an active investigation regarding Josh, meaning that they could, theoretically, reasonably be pulling over family members. I suspect that the police either have an ongoing investigation regarding the possibility of Josh selling/trafficking drugs, and the police are within their rights to conduct the investigation.

That being said, it sounds like perhaps they are going too far. You may wish to consider filing a complaint with https://www.crcc-ccetp.gc.ca/,  The Commission For Public Complaints Against The RCMP. They have succesfully helped with situations like this in the past, looking into police behaviour, and making public condemnations of the activities. They may be able to assist with this particular problem.

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LawyerGreg, Expert

Turning to your 6th point, it seems to be a well thought out summation of your points made during the entire document, and further points regarding how these items should no longer be held. I agree with your points, and suspect a court may see things the same way.

The 7th point again, seems to be a summation of what was previously stated, which is good. A judge would read that as a helpful summation.

I have also just realized that under your 8th point, you've already complained about the police behaviour, which is excellent. Continue along that route as well.

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LawyerGreg, Expert

I suspect, and hope, that I have touched on all of your points.

Do you have follow-up questions I can help with?

Customer
Another question I have is, the force the rcmp used while executing the search warrant, as well as it was served at 9:54 PM was it lawful to use such force as they did
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LawyerGreg, Expert

Serving at 9:54 pm is ok, as long as they’re within the timeframe (dates and times) mentioned in the search warrant. In terms of reasonable force, that’s a question that’s been debated in courts of law for decades. There are judges and lawyers who would say that due to the severity of the crimes alleged that the force they employed was reasonable, especially given the knowledge of firearms or possibility of firearms in place. Alternatively, lots of judges and lawyers would say the force was unreasonable and the officers should be punished, or at least reprimanded. Your best course of action there would be the complaint to the commission, and possibly a civil suit.

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