R v Doonanco, 2016 ABQB 612

Court of Queen’s Bench of Alberta Citation: R v Doonanco, 2016 ABQB 612 Date: 20161102 Docket: 140579798Q1 Registry: St. Paul Between: Her Majesty the Queen - and - Deborah Doonanco Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice : Restriction on Publication ended on November 28, 2016. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.G. Crighton Voir Dire #4

s 8 Breach relative to the Search of Ms. Doonanco’s iPad _______________________________________________________ I. Introduction [ 1 ] Defence counsel seeks a declaration that Ms. Doonanco’s s 8 Charter rights were breached when police seized an iPad from her home on May 26, 2014, and subsequently searched that iPad over two years later pursuant to search warrants obtained on September 6, 2016 and September 19, 2016. Crown concedes that Ms. Doonanco has a privacy interest in the iPad. [ 2 ] Defence counsel argues there were four breaches of Ms. Doonanco’s s 8 Charter rights in this case:

a) searching the iPad on May 26, 2014 without prior legal authorization to do so;

b) the subsequent seizure of the iPad on May 26, 2014 without lawful authority;

c) failing to reveal to the issuing justice on September 6, 2016 that the initial search on May 26, 2014 was not authorized, which information would have led to refusal of the warrant; and

d) conducting a search of the iPad pursuant to the September 6, 2016 warrant that was overly broad. [ 3 ] Defence counsel argues those breaches should be remedied by the exclusion, pursuant to s 24(2), of any evidence obtained from that iPad. [ 4 ] The Defence must establish on a balance of probabilities that the searches of the iPad breached Ms. Doonanco’s Charter rights and that the evidence obtained therefrom ought to be excluded. II.

Law [ 5 ] There can be no doubt since the Supreme Court of Canada decided R v Vu , 2013 SCC 60 in November 2013, that a computer search requires a separate and distinct judicial authorization and no doubt as to the reasons why such authorization is required.

As noted by Cromwell J at paras 22 and 43: [22] …The prior authorization requirement ensures that, before the search is conducted, a judicial officer is satisfied that the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance the goals of law enforcement. …Second, an authorized search must be conducted in a reasonable manner. This ensures that the search is no more intrusive than is reasonably necessary to achieve its objectives.

In short, prior authorization prevents unjustified intrusions while the requirement that the search be conducted reasonably limits potential abuse of the authorization to search. [43] Computers ... compromise the ability of users to control the information that is available about them in two ways: they create information without the users’ knowledge and they retain information that users have tried to erase.

These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past. [ 6 ] Cromwell J at para 47 held that only a specific authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches. [ 7 ] Cromwell J stated at para 3 that if, in the course of a warranted search, police came across a computer that might contain material for which they were authorized to search but the warrant did not give them specific, prior authorization to search computers, they could seize the device but had to obtain the further specific authorization before it was searched. [ 8 ] In my view, an iPad such as the one in issue here, attracts the same expectation of privacy and concerns as does a personal computer as that term is used in Vu .

III. Background Information [ 9 ] On May 26, 2014, the RCMP entered Ms. Doonanco’s residence to execute a search warrant authorizing police to seize a firearm, spent shell casings, ammunition, bullet fragments, fire accelerants, and handwritten notes and diary . Constable MacDuff, a 9- year member of the RCMP, was assigned by the Edmonton major crimes unit to act as the scene manager.

Constable MacDuff had been with major crimes for 6 months and had been the Affiant for approximately 10 search warrants as at the date of the residence search. [ 10 ] During the residence search, Constable MacDuff was provided with an iPad that had been located in the master bedroom of the residence by another officer. The search warrant did not expressly authorize the seizure of the iPad or the search of its contents. Nevertheless, Constable MacDuff examined some of the contents of the iPad, specifically photos revealed within the “photos” icon on the iPad.

He then seized the iPad. [ 11 ] At the time of the residence search, there was no evidence to indicate to whom the iPad belonged. [ 12 ] Thereafter, Constable Shima obtained a warrant to search the iPad pursuant to an informations to obtain (“ITO”) dated

September 6, 2016, in which he stated his reasonable grounds for believing that information stored in the iPad would afford evidence respecting the commission of the offences charged. [ 13 ] The warrant specifically authorized a search for incoming and outgoing messages, e-mails, photos and video .

This ITO was obtained, in part, based on the information Constable MacDuff obtained when he opened the iPad on May 26, 2014 and searched it for photos. [ 14 ] Constable Hoeksema executed the warrant authorizing the extraction of information from the iPad and allowing for the seizure of incoming and outgoing messages, emails, photos, and videos .

The warrant also authorized an analysis of the data contained on the iPad. [ 15 ] During execution of the September 6, 2016 warrant, Constable Hoeksema seized information from the cache folder that automatically stores images when a user is looking at internet webpages. [ 16 ] On September 19, 2016, Constable Shima obtained an additional warrant allowing him to search the iPad and specifically: user notes, Wireless Network Data, Web History, Web Bookmarks, downloaded and uploaded files and Searched Items.

Constable Shima relied on an ITO of the same date to obtain the warrant. [ 17 ] The basis for the September 19, 2016 warrant was in part the information resulting from execution of the September 6, 2016 warrant, which Defence counsel alleges was unlawfully obtained. IV. The Voir Dire Evidence [ 18 ] Crown conceded that Defence counsel ought to be allowed to cross examine the Affiant, Constable Shima, on his ITO. A. The May 26, 2014 Search [ 19 ] Constable MacDuff testified on the voir dire regarding his search and seizure of the iPad during the search of the residence on May 26, 2014.

Defence counsel urges this Court to reject Constable MacDuff’s evidence as being suspect at best and intentionally misleading at worst. [ 20 ] I do not agree with either characterization of Constable MacDuff’s evidence.

However, I do find that his recollections of his conversations more than two years later, independent of his written notes made at the time, are not entirely reliable as to the timing of specific discussions. [ 21 ] In considering the context of his evidence, it is important to understand that Constable MacDuff testified that he took his notes and spoke to various individuals on the telephone outside of the house because, while he was in the house, he was wearing protective clothing and a mask. Accordingly, it is reasonable to conclude that his notes were made after the events they record were completed.

He acknowledged that was the likely order. [ 22 ] Constable MacDuff testified that another officer gave him the iPad. He testified that he opened the iPad, swiped it, and searched in the photo icon for photos of the victim’s tattoo. He said he did this because during his conversation with Constable Halvorson about the body removal, Constable Halvorson advised him that there was still some doubt about the identity of the individual on the couch.

Constable MacDuff testified it was during this same call that he discussed the distinctive tattoo he had observed on the calf of the body found on the couch and the fact that it was not recorded in CPIC. He agreed he did not make a note of Constable Halvorson’s information that identity was uncertain and he did not record the discussion about there being no record of the tattoo in CPIC when he spoke to Constable Halvorson at 1:06 p.m.

However, he testified that he nevertheless had a recollection of the discussion independent of his handwritten notes. [ 23 ] While I have no difficulty accepting that Constable MacDuff had the discussions he said he did, the content and timing of certain notes suggest that he had those discussions after the body had been removed and he had already searched the iPad.

Moreover, the notes he took combined with the ITO and the activities undertaken at the scene suggest that if Constable Halvorson expressed any doubt about the deceased’s identity, it was not a significant concern that prompted any search activity relative to that issue. There is nothing on the face of the warrant to indicate identity was in issue and nothing was specified in the warrant relative to that issue. [ 24 ] It should be noted that Ms. Doonanco had been charged with murdering Kevin Feland by the time the residence was searched.

It is also significant that Constable MacDuff testified that when the body was removed, it was specifically tagged with the name “Kevin Feland”, and with Kevin Feland’s birthdate. The notes indicate that the body was removed sometime after Constable MacDuff’s 1:06 p.m. conversation with Constable Halvorson, but before they spoke at 4:54 p.m. [ 25 ] The note recorded at 1:06 p.m. about removal of the body and the tattoo on the left calf follows a discussion at 12:53 pm with the medical examiner who gave permission to remove the body and to contact a specific funeral home.

Reference is then made to the name “Kelly Turzanski” and Northern Lights Funeral Home. This was not addressed with Constable MacDuff but it is logical to infer from the notes that follow that Turzanski was the contact at that funeral home. Constable MacDuff testified that he and Constables Smith and Shardlow assisted the funeral home to load and remove the body, which they did by placing it in a body bag and tagging that bag with Kevin Feland’s name and birthdate. His notes indicate this occurred at 2:55 p.m.

I infer from the note at 2:55 p.m. that the funeral home to whom the body was to be released was not yet on scene when Constable MacDuff discussed the tattoo with Constable Halvorson at 1:06 p.m. This means it was still accessible to the forensic identification team that was on scene.

I infer from that information that even if Constable MacDuff and Constable Halvorson had discussed the fact that the deceased had not been positively identified, if there had been any real concern regarding the deceased’s identity, one would have expected Constable MacDuff to have noted this in his notes at 1:06 p.m. and to have ensured that such an important piece of identifying information was photographed for use

in any subsequent identification process. That did not happen. [ 26 ] The next conversation with Constable Halvorson that Constable MacDuff records in his notes was at 4:54 p.m. In that note, it is clear that Constable MacDuff has already searched the iPad. He states in his notes that he did so to determine the identity of the male on the couch, but it is unclear how a photo on an iPad would assist Constable MacDuff in that task. He also notes that he advised Constable Halvorson of the search and decided to seize the iPad to obtain a search warrant.

I accept that Constable MacDuff searched the iPad for a photo of someone with that tattoo, but the discussion about it not being recorded on CPIC arose after he had already searched it. It is more likely from the notes that Constable Halvorson confirmed the tattoo they had earlier discussed was not in CPIC and Constable MacDuff reported the results of his search leading to the decision to seize the iPad.

If identity had been an issue at all, I would have expected the earlier note to have recorded that fact and I would have expected the forensic identification team to have been directed to document the tattoo for identification purposes. [ 27 ] Constable MacDuff acknowledged the warrant did not authorize him to search the iPad or to seize it. [ 28 ] The Crown argues that Constable MacDuff was justified in seizing the iPad in any event pursuant to s 489 of the Criminal Code on the basis of his reasonable grounds to believe that it would afford evidence of the offences.

While it is true that Constable MacDuff observed a red notification in the email and text message icons indicating to him there were unread messages, he testified he did not know who the iPad belonged to and he had no suspicions in that regard.

Therefore, notwithstanding Constable MacDuff was aware he could seize something that was not specified in the warrant where he had reasonable grounds for believing the iPad would afford evidence relevant to the commission of the offences charged, the evidence on the voir dire does not support the conclusion that he in fact formed those grounds. [ 29 ] I find that Constable MacDuff’s conduct in first searching the iPad and subsequently in seizing it was therefore unlawful and in breach of Ms. Doonanco’s s 8 Charter rights.

The information obtained during that unlawful search and seizure should therefore be deleted from the September 6, 2016 ITO in support of the September 6, 2016 warrant to search the iPad. B. The September 6, 2016 ITO and Search Warrant [ 30 ] The Crown submits that the September 6, 2016 search was prima facie reasonable given that it was done with a warrant.

The Crown further submits that after amplification, Defence counsel has not shown that search to have been unreasonable. [ 31 ] I understand the Defence to argue that Constable Shima failed to disclose to the issuing justice that the earlier search of the iPad was warrantless when that warrantless search was the very foundation for the September 6, 2016 warrant. Moreover, the Defence argues that Constable Hoeksema understood that Constable Shima was looking for the photos that Constable MacDuff had looked at by accessing the photo icon on the iPad. However, he went beyond that search to search Ms.

Doonanco’s cache folder and then provided the entirety of that search to Constable Halvorson without restriction. [ 32 ] The Defence concedes that Constable Shima was frank and fair in his testimony on the voir dire , but urges this Court to reject Constable Hoeksema’s testimony as insincere and troubling. [ 33 ] I do not accept Constable Hoeksema’s evidence was insincere, but parts of it were troubling in the context of the limited language he provided to Constable Shima whom he knew was interested in the photos that had earlier been viewed by Constable MacDuff. [ 34 ] Based on the evidence of Constable Shima and Constable Hoeksema, it is likely there was a disconnect between Constable Hoeksema, who is well versed in the area of technological vocabulary, and Constable Shima, who is not so well versed, especially as that vocabulary relates to the nature and scope of the forensic search tools and how they are employed.

I do not find anything nefarious in the conduct of either officer, having heard their evidence in this voir dire, but greater care ought to have been taken to explain the scope of the search that would result from Constable Shima’s interest in the photos within the photo icon on the iPad . [ 35 ] Ignoring the information that was provided by Constable MacDuff after he unlawfully searched the iPad on May 26, 2014, the question must be asked whether the issuing authority could have granted the warrant based on the information that remained.

In my view, the issuing justice could not have done so. [ 36 ] I agree with the Crown that the issuing justice could have inferred that Constable MacDuff did not have a warrant when he searched the iPad, but in any event, the search was unlawful and accordingly, on a review of the September 6, 2016 warrant, information obtained from that unlawful search must be ignored. If one ignores that information, I find there was no other evidence that could have justified a search of the iPad. [ 37 ] It is clear from the ITO that Constable Shima had information that Ms.

Doonanco had taken photos on her cell phone of a torch that she showed to others. Further, he had information that she told at least one person that the deceased had threatened to burn the house down with the torch and then to kill her. It is clear that Constable Shima had information that Ms. Doonanco had engaged in text messaging and phone conversations with an individual in the month prior to the deceased’s death. [ 38 ] The issuing authority knew from the disclosure in the ITO that a warrant for Ms.

Doonanco’s cell phone was initially refused, but subsequently granted, and could have inferred that the iPad was in the possession of police without having first obtained a warrant to seize it. [ 39 ] It is clear from the ITO that a search of the iPhone revealed no recovered activity between Doonanco’s phone number and the individual whom she was texting and phoning, but there were some deleted messages that referenced the relationship between the deceased and the accused.

It could not be determined through the search what number sent them or received them. [ 40 ] Constable Shima testified that the iPhone and the iPad were made by the same company and where the accounts are linked,

email and messages on the phone will be duplicated on the iPhone. However, there is no evidence in the ITO that the accounts are linked in any way and it is clear from the reference in the ITO to the cell phone number that they had the number and had searched the phone. That account information should therefore have been available and disclosed. [ 41 ] Constable Shima also testified in the voir dire that in his experience people chronicle their lives on devices such as the iPad and it was therefore reasonable to expect that there might be photos relevant to the offences and to Ms.

Doonanco’s claim that she acted in self-defence. In the ITO itself, he states the following: 60. Constable MacDuff located one image of Feland on the device. He didn’t know when the picture was taken. Further Doonanco told witnesses she had taken photos of Feland’s torch using her cell phone. I find it reasonable to believe she was also taking photos relevant to her circumstances in the relationship with the iPad. I believe the device was used to take photos and record images of Kevin Feland.

Additionally, I believe the photos and recorded images will provide insight into what was going on in the residence and between Feland and Doonanco. 61. A potential motive for the murder was self-defense or self-preservation.

I reasonably believe there are photographs, messages and emails relating to Doonanco and Feland’s relationship stored on the iPad ... and that those items will afford evidence respecting the commission of the offences. [ 42 ] In my view, absent any information linking the two devices, the issuing justice could not have inferred that what was on the iPhone might reasonably be stored on the iPad. Without the linkage, the only evidence that remained was the belief, not grounded in any specific evidence related to the iPad, that there might be something on the iPad relevant to the commission of the offences.

If all that is required to secure a search warrant for an electronic device is an unsubstantiated believe the device may be connected to another device that was searched and that it may have been used to email, text, and take photos because the other device was used for that same purpose, then obtaining a search warrant would be no more than a pro forma exercise.

That is inconsistent with the high expectation of privacy in personal computers and the rationale expressed in Vu for requiring a separate authorization for those devices. [ 43 ] Regarding Defence counsel’s arguments that the search conducted pursuant to the September 6, 2016 warrant was overly broad, I agree that it was, but I also find that Constable Shima fairly disclosed what he was looking for and limited the warrant to that which he reasonably believed would reveal evidence relevant to the commission of the offences. [ 44 ] The search pursuant to the warrant was overly broad because of the tool that police use to search for photos as specified in the warrant.

That information was within Constable Hoeksema’s knowledge when he provided the more limiting language and he did not adequately or accurately inform Constable Shima, whose obligation it was to make a fair, full, and frank disclosure to the issuing authority. I will consider this in the context of s 24(2) later in these reasons, but given my conclusion that the issuing authority could not have issued the September 6, 2016 warrant, it is not necessary to consider the impact of the search having been over broad.

The search was unlawful. [ 45 ] Constable Hoeksema agreed that in searching for photos, the search tool used searches for anything the operating system stores as images or photos. While he testified that he uses the terms “images” and “photos” interchangeably, it is clear from the evidence he gave during the voir dire that there is a distinction, even if he could not articulate it. I infer from the evidence he gave that “photos” would be included within the broader category of “images”.

In other words, I infer from his evidence that all photos are images, but not all images are photos; at least as a lay person would understand the meaning of the term “photo”. He also testified that the tool that is used would not be able to differentiate between the photos created by the operating system and those created by the user.

In that sense, the search permitted was broader than that specifically intended by Constable Shima, but not to his knowledge when he swore the ITO. [ 46 ] In conclusion, the September 6, 2016 warrant to search for incoming and outgoing emails, text messages, photos, and videos could not have been granted on the information remaining in the ITO and the information that ought to have been disclosed that was not. The search of the iPad was also broader than that intended by Constable Shima in his ITO for the warrant that was granted. The search of the iPad was therefore warrantless and breached Ms.

Doonanco’s s 8 Charter rights. C.

The September 19, 2016 ITO and Warrant [ 47 ] The September 19, 2016 warrant relied on information that was obtained from the unlawful September 6, 2016 warrant and therefore, unless there is some evidence independent of that upon which the broader warrant of the iPad could have issued, it too was unlawful. [ 48 ] By the time of the September 19, 2016 warrant, it was known that there were two users associated with the iPad. [ 49 ] Based on my review of the September 19, 2016 ITO, there is no evidence independent of the earlier search that could have permitted the issuing authority to issue the September 19, 2016 warrant.

The ITO repeats much of the earlier information from the September 6, 2016 ITO, but goes on to extensively review the process used to extract information from the iPad and to justify, based on the recovered information, an even broader search of the iPad. Ignoring the unlawfully obtained information, nothing remains that could have justified the search of the iPad’s entire operating system. [ 50 ] Accordingly, the September 19, 2016 warrant was unlawful as well. V. Section 24(2) Analysis [ 51 ] Having established on a balance of probabilities that police breached Ms.

Doonanco’s s 8 Charter rights, the Defence must also prove that the admission of the resulting evidence would bring the administration of justice into disrepute. [ 52 ] Section 24(2) of the Charter requires the Court to consider the seriousness of the infringing state conduct, the impact of the

breach on the accused’s Charter protected interests, and finally, society’s interest in the adjudication of the case on its merits. A. Seriousness of the Breach [ 53 ] There were a number of breaches of Ms. Doonanco’s Charter rights arising from police conduct respecting the iPad. [ 54 ] The search on May 26, 2014 was pursuant to a warrant authorizing the police to seize a firearm, spent shell casings, ammunition, bullet fragments, fire accelerants, and handwritten notes and diary .

Nothing in the evidence suggested police were looking for handwritten notes or a diary in the iPad. [ 55 ] Section 489(1) of the Criminal Code authorizes police executing a warrant to seize, in addition to the things mentioned in the warrant, anything that s/he believes on reasonable grounds has been used in the commission of an offence against this or any other Act of Parliament; or will afford evidence in respect of an offence against this or any other Act of Parliament.

There was nothing in the evidence which would suggest that the police had reasonable grounds on May 26, 2014 to seize the iPad, much less search it. [ 56 ] Further, the police should have been aware of the law as enunciated in Vu to the effect that if they came across a computer device that might contain material for which they were authorized to search but the warrant did not give them specific, prior authorization to search such devices, they could seize the device but had to obtain further authorization before it was searched.

The search of the iPad on May 26, 2014 was a serious breach, amounting to an unauthorized fishing expedition. [ 57 ] Reliance upon information that resulted from the initial unlawful search and seizure to ground two subsequent searches compounded that unlawful conduct notwithstanding police believed they were subsequently acting in accordance with validly issued search warrants. [ 58 ] In terms of the lack of a link between the iPhone and the iPad, the police had searched the cellphone and had the telephone number before the first warrant.

There is no evidence that there was an attempt to obtain subscriber information for the iPad which might have enabled them to establish a link between Ms. Doonanco’s cellphone and the iPad. [ 59 ] The ultimate searches of the iPad were far reaching and went beyond what was intended.

This heightens the seriousness of the breach in this case. [ 60 ] In Vu , the Court rejected the necessity of requiring a search protocol in advance of searching an electronic device because the ex post review of the reasonableness of the search in a particular case can signal to police how they should limit their searches in future cases.

It is in this context that the Defence arguments regarding the overbreadth of the September 6, 2106 search are relevant. [ 61 ] In this case, it was clear from Constable Shima’s evidence that he was interested in the photos one would see if one opened the device and pressed on the photo icon visible on the screen as Constable MacDuff testified he had done. Constable Shima testified he made clear to Constable Hoeksema that he was looking for the photos that Constable MacDuff had earlier accessed.

Constable Shima testified and Constable Hoeksema confirmed that Constable Hoeksema provided the language used in the warrant. That is, that he wanted to search incoming and outgoing messages, e-mails, photos, and videos. [ 62 ] Constable Hoeksema testified that he uses the words “images” and “photos” interchangeably, but his answer to specific questions does not support that evidence. When asked if the certain information that Constable Shima highlighted in the September 19, 2016 ITO that was saved in a jpeg format was an image or a photo, he indicated it was an image.

I inferred from his evidence that all photos are images, but not all images are photos. In other words, photographs are a subset of the broader image category that he searched. He testified that he searched for images because photos and videos that were specified in the warrant are often included in the images file. [ 63 ] Constable Hoeksema did not advise Constable Shima of this information until Constable Shima questioned how police had extracted images that were effectively from an internet history given the items that were specified in the September 6, 2016 warrant.

Even though Constable Hoeksema knew on September 6, 2016 that the search tool he would use may yield information beyond that specifically sought by Constable Shima, he did not reveal that information to Constable Shima when he provided the search terms that should be included in the warrant. [ 64 ] I accept this gap in information may have resulted from the differing levels of technological knowledge that each officer possessed, but the failure to provide complete information to an Affiant who was attempting to limit his search to a specific category of photos he reasonably considered might afford evidence of the offences charged, suggests a disregard for the markedly different privacy interests that arise in the context of a personal computer like an iPad.

More care should be taken to ensure that intended search parameters are not unwittingly exceeded. [ 65 ] Constable MacDuff’s conduct in searching the iPad for the reasons he did was intentional and knowingly done without a warrant authorizing that search. [ 66 ] I find, however, that Constable Shima acted throughout in good faith in pursuing the warrants that were issued. [ 67 ] I disagree with Defence counsel that Constable Hoeksema engaged in conduct that was intentionally designed to obfuscate his knowledge that a broader search would result, but the failure to advise Constable Shima of the limitations associated with the search tool he used resulted in a much broader search than Constable Shima ever intended. [ 68 ] I conclude that the gaps in Constable Shima’s understanding did not result from intentional obfuscation, but rather they resulted from the different levels of understanding possessed by both officers regarding technology generally and the search tool that would actually be used to access the photos that Constable Shima was interested in specifically. [ 69 ] Constable Hoeksema’s failure to consider the accused’s distinct privacy interests in the iPad that police wanted to search

meant that he did not fully consider that Constable Shima may need to be aware that Constable Hoeksema’s search tool would generate information that would necessarily exceed what Constable Shima reasonably believed would afford evidence. That is especially so given both officers’ evidence that Constable Shima identified what he was interested in and relied on Constable Hoeksema to provide him with language that would affect that intention. For all of those reasons, this factor favours excluding the evidence. B.

Impact of the breach on the accused’s Charter protected interests [ 70 ] The Crown conceded that if the Court were to conclude there was a breach, the impact of the breach would be serious. I agree. [ 71 ] As the majority stated in R v Morelli , 2010 SCC 8 at para 2 , it is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer. Ms. Doonanco had a high expectation of privacy in her iPad. The search executed pursuant to the first warrant resulted in seizure of 15,243 images and the second, 15,167.

The breaches had a very significant impact on Ms. Doonanco’s Charter protected interests. Accordingly, the second part of the test favours exclusion. C. Society's interest in the adjudication of the case on its merits [ 72 ] Ms. Doonanco faces very serious charges. There are few charges in the Criminal Code that are more serious. Society has an interest in the adjudication on the merits of the murder and related charges against her.

The Court must consider whether the truth- seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. [ 73 ] The Crown argues the evidence is real and reliable presumably because it existed irrespective of the Charter infringing conduct. The Crown also argues that it will be valuable evidence for the trier of fact relative to Ms.

Doonanco’s state of mind and to their ability to consider the weight they might give to the expert’s evidence about her state of mind. [ 74 ] The information that arose from the search is information that existed prior to the Charter infringing action. It is real in the sense that it is created automatically by the device’s operating system from user activity, but that is as far as the evidence goes in my view. [ 75 ] As noted, the evidence on the voir dire reveals there are two users associated with the iPad: dldranch@gmail.com and feelandkevin@yahoo.ca .

There is no information to say who accessed the information in question. [ 76 ] I disagree with the level of importance the Crown ascribes to this evidence. The evidence in question consists of Google searches, browser history, information from the cache folder, and like material. There is some information Ms. Doonanco told police she did not plan the deceased’s death, and if she had, it would have been a poisoning or a drowning as he could not swim. There is also reference in the internet history to websites about poison, but the deceased was shot.

In any event, there is no evidence in the materials generated by the search to indicate which of the identified users accessed the information and it is clear from Constable MacDuff’s evidence that the iPad was not password protected, suggesting that it could have been easily accessed by anyone in the same way he accessed it. There is also evidence in the ITO that Feland may have suggested to Ms. Doonanco there would be a murder suicide and that his behavior was unpredictable and volatile in the time preceding his death.

In the context of a domestic homicide, where self-defence against an abusive partner is advanced, with two possible users of a device and no evidence of attribution to a specific user, this circumstantial evidence has diminished probative value. [ 77 ] I conclude that the third part of the Grant analysis also favours exclusion. [ 78 ] In conclusion, after balancing all three factors in the Grant analysis, I am satisfied that Defence counsel has demonstrated on a balance of probabilities that admission of the fruits of these unlawful searches into evidence would bring the administration of justice into disrepute.

VI. Conclusion [ 79 ] The Defence application is granted and the evidence derived from the September 6 and September 19, 2016 searches is excluded. Heard on October 25 th , 26 th and 28 th , 2016. Dated at the Town of St. Paul, Alberta this 2 nd day of November, 2016. M.G. Crighton J.C.Q.B.A.

Appearances: S. Niblock & D. Sopko Alberta Justice, Edmonton Rural & Regional Response Office for the Crown B. Beresh, QC & R. LaValley Liberty Law for the Accused