Stuart O'Connell Criminal Law Blog

A person has a reasonable expectation of privacy in the contents of the USB key found in her/his pocket.             R. v. Balendra, 2019 ONCA 68 , at paras. 35, 38. In  Tuduce , Gillese J.A. considered the privacy interests implicated in USB keys found in a person’s possession: First, a USB key can store a significant amount of data. USB keys commonly hold anywhere from one to ten gigabytes of data, and USB keys with a storage capacity of over one terabyte exist. It seems likely that their storage capacities will only increase over time. Second, data can be left on a USB key without a user’s knowledge. This data includes information about the date and time a file was created or modified and information about the user who created or modified that file. Third, a user does not have complete control over which files an investigator will be able to find on a USB key. Data can be salvaged from a USB key through forensic analysis even after a ...

A trial judge has a residual discretion to set aside a properly issued search warrant or authorization. In order to bring him/herself within the sweep of this residual discretion, the Applicant must demonstrate that the police conduct was s o subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves. R. v. Paryniuk , 2017 ONCA 87 (CanLII) at para. 66, leave to appeal refused, [2017] S.C.C.A. No 81. Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process. Supra , at para. 74. Where the judge is satisfied that the conduct of the police has subverted the pre-authorization process through such egregious misconduct as the following:   deliberate non-disclosure,   bad faith, deliberate deception, fraudulent misrepresentation and the like. a trial judge has a residual discretion to set aside a properly issue search w...

Police entry into a shared residence is a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed. Police frequently attend residences to investigate suspected or ongoing criminal activity.  Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home.  If a resident cannot consent to police entry to a shared home without the consent of all the other residents, it undermines the dignity and autonomy of that resident — especially for a victim of a crime. Further, a rule, for instance, that the police may enter the common areas of a shared home only if they obtain consent from each and every person who lives there is unworkable.  That one resident can consent to have police enter the home does not displace the privacy expectations of the other residents, however. I n the case of joint residents, the question is not wheth...