Even without the improperly obtained information, the remaining evidence justified the warrant
The Court of King's Bench of Alberta ruled that police violated an accused person's section 8 Charter rights by searching a lost cellphone for ownership details without a warrant.
However, the court upheld the search warrant that led to charges of possession and access of child pornography.
In August 2023, a member of the public found a ZTE cellphone at a bus stop. After charging and unlocking the phone, they discovered videos of child pornography stored in the device's gallery. The individual reported the discovery to the police and handed over the phone but refused to provide a statement or participate further in the investigation.
Officers briefly viewed the videos to confirm their content when they received the phone. They also photographed specific identifying information, including a government-issued identification card, a birth certificate, and a social media profile. Officers logged the phone into the Calgary Police Service (CPS) Evidence and Property Unit before transferring it to the Southern Alberta Internet Child Exploitation (SAICE) Unit for forensic analysis.
In October 2023, an officer with the SAICE Unit obtained a search warrant to conduct a forensic examination of the phone. The analysis, completed the following month, linked the accused to possession and access of child pornography over several days in July 2023.
The accused challenged the police conduct, arguing that officers violated s. 8 Charter rights when they viewed the videos, searched for ownership information, recorded the phone's serial number, and delayed filing a Report to Justice under s. 489.1 of the Criminal Code.
The court ruled that police did not breach Charter rights by viewing the child pornography videos. It relied on a 2021 decision by the Alberta Court of Appeal, which established that when police examine evidence voluntarily provided by a citizen, s. 8 is not engaged. The court determined that police had a duty to investigate once they received the phone and were permitted to confirm the presence of illegal material.
However, the court found that the accused retained a reasonable expectation of privacy in the phone's contents, even though it had been found in a public place. The search for ownership details was unlawful because, by then, police had already determined the phone contained evidence of a criminal offence. Since officers had no intention of returning the phone to its owner, the search for ownership information amounted to an investigative step rather than an effort to return lost property. The court ruled that this was a warrantless search and a breach of Charter rights.
Despite the Charter breach, the court upheld the search warrant, concluding that the remaining evidence provided a sufficient basis for the warrant's issuance even if the ownership details were removed.
The accused also claimed that police breached s. 8 rights by failing to file a "Report to Justice" promptly. The Criminal Code requires police to report seized property to ensure judicial oversight. The court ruled that no violation occurred, finding that the legal obligation to file a report only arose once police confirmed the phone's owner. The court considered the delay reasonable since officers did not immediately know who owned the phone.
While the court upheld the search warrant, it left open the question of a possible s. 24 Charter remedy for the privacy breach. The court will address this issue in a future hearing.
