The court found Charter violations regarding a warrantless brute force search of the accused’s cellphone and failures to submit required reports for extracted data and seized devices.
In R. v. Simmons, 2024 ABKB 397, the accused faced two child pornography charges and two luring offences involving a 14-year-old Complainant. The Crown sought to rely on evidence extracted from the Complainant’s and the accused’s cellphones. The accused made several applications challenging various police actions and inactions, primarily concerning potential violations of his Section 8, 9, and 10 Charter rights related to the cellphone searches and seizures.
The court found that the accused had a reasonable expectation of privacy regarding communications he sent to the Complainant. However, the Complainant, through her father, voluntarily provided consent to search her cellphone and disclosed its password to the Constable. Because the disclosure was voluntary, no warrant was required for the police to access the communications on the Complainant’s cellphone, and thus, no Charter violation occurred concerning this access.
A Constable seized the accused’s cellphone under a valid search warrant. The court determined that the Constable’s question to the accused about the phone was not a search and that the accused was not detained at his residence when his cellphone was seized. Furthermore, the Constable’s observation that the cellphone was passcode protected, as part of the intake process, was not considered a search. The subsequent Report to Justice concerning the cellphone’s seizure, submitted 15 days later, was found to be submitted “as soon as was practicable”.
The court identified several Section 8 Charter violations regarding the extraction of data from the accused’s cellphone. A “brute force operation” aimed at determining the cellphone’s passcode continued after the expiration of the Second Warrant and before the Third Warrant, constituting a warrantless ongoing search . Additionally, the police failed to submit Reports to Justice for the information extracted under the Second Warrant, as explicitly required by its terms. Similar failures to report on the “thing” (Cellphone/USB device) as required by the express terms of the Third and Fourth Warrants also constituted Charter violations. The court clarified that, generally, Section 489.1 of the Criminal Code applies to the physical item (“thing”) seized, not the extracted data itself, but the specific wording of these warrants created reporting obligations for the data and devices. No non-disclosure issue was found regarding the Third Warrant’s ITO.
