R v M (2018)
- Clayton Rice, K.C.
The Calgary police had a warrant to search a cellphone seized from M during his arrest for a criminal organization offence. The warrant authorized the search for data including archived text messages, call records, photographs and the contact list. But the judge who granted the warrant failed to impose conditions on the search to protect M’s privacy including any communications with his lawyer. The police reviewed text messages on the cellphone between M and his lawyer, prepared a report on the contents and circulated the report to investigators. Mr Rice brought a pretrial exclusion motion arguing that the warrant was invalid because it was overly broad and unreasonable. The prosecutor conceded that the search was unreasonable and in breach of solicitor-client privilege under ss 7 and 8 of the Charter of Rights. The cellphone, its contents, evidence of ownership and possession, and the circumstances of its seizure by the police were excluded from evidence.