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Charter - s.8 Search and Seizure - Chattel Property. R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considers (and finds) that a breach of CCC 489.1 ['Restitution of thing or report'] constitutes a Charter s.8 'seizure' (not a 'search') violation:[2] Mr. Lambert also argues that s. 8 was violated by the failure of the police to file “as soon as [was] practicable” a return relating to the first seizure, as required by s. 489.1 of the Criminal Code.
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[8] Section 8 was violated relating to the first seizure by non-compliance with s. 489.1, since the first return to a justice was not filed “as soon as [was] practicable”. The trial judge did not recognize this breach because of his erroneous holding that s. 8 of the Charter was not engaged. I would not exclude the evidence obtained from the first seizure as a result of this Charter breach.
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B. DID THE TRIAL JUDGE ERR IN FAILING TO FIND A BREACH OF S. 8, ARISING FROM THE DELAY IN FILING A REPORT TO A JUSTICE BETWEEN THE HANDOVER OF COMPUTER 1 ON MAY 14, 2016, AND JULY 28, 2016, WHEN THE FIRST REPORT TO A JUSTICE WAS MADE?
[96] In explaining his conclusion that the Charter was not breached as the result of the delay in filing the first report to a justice, the trial judge said that no “warrantless search” had occurred to trigger s. 489.1. I am satisfied that when the trial judge said “search” he misspoke. He knew this was a seizure case, and s. 489.1 speaks of items being “seized” and does not use the term “search”. As I read the trial decision, he appears to have found that since, in his view, no seizure occurred within the meaning of s. 8, s. 489.1 did not have to be complied with to satisfy the demands of the Charter.
[97] I am persuaded that regardless of the precise line of reasoning the trial judge employed, his failure to find a Charter breach relating to the delay in filing the first report to a justice was an error. Section 489.1 applies to all seizures, including warrantless seizures: R. v. Backhouse, (2005) 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.). Where a peace officer seizes “anything” they must report to a justice “as soon as is practicable”. I have considered the explanations that PC Cunning offered for the delays that occurred, but I can see no basis for holding that it was not practicable to file the first report to a justice before July 28, 2016, a delay of approximately two months after Computer 1 was seized on May 14, 2016. The failure to comply with s. 489.1 is a Charter breach: Garcia-Machado. This is because a seizure is an ongoing event. During the delay that occurred before the report to a justice was filed relating to Computer 1, the ongoing retention of the computer, a continuing seizure, was not authorized by law and was therefore unreasonable, contrary to s. 8 of the Charter. . R. v. Lambert
In R. v. Lambert (Ont CA, 2023) the Court of Appeal considered (and reversed on this point, but not on the result) an appeal as to whether Charter s.8 ['search and seizure'] operated ('was engaged') when a wife turned over a shared computer to the police with evidence of child pornography:[1] The appellant, Richard Lambert, appeals his convictions on three counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code, R.S.C. 1985, c. C-46. He argues that the trial judge erred in finding that s. 8 of the Canadian Charter of Rights and Freedoms did not apply because it was not “engaged” when, on two occasions, Ms. Lecompte, the appellant’s wife at the time, turned family computers over to the police that contained evidence that he had been accessing child pornography. Mr. Lambert submits that, on both occasions, “seizures” occurred within the meaning of s. 8 that could not lawfully be undertaken by the police without a warrant.
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[4] During the Charter voir dire, the sole question that was litigated was whether s. 8 of the Charter applies if someone with a shared privacy interest in a computer, hands it over to the police of their own initiative. As indicated, the trial judge concluded that s. 8 was not “engaged” in these circumstances. He therefore dismissed the Charter challenges relating to the two computers. ...
[5] For the reasons that follow, I conclude that the trial judge erred in these determinations.
[6] As I will explain, s. 8 of the Charter is engaged for consideration if there has been a search or seizure within the meaning of s. 8. Where this has occurred and a Charter application has been brought, a trial judge must determine whether the search or seizure was reasonable. The trial judge did not inquire into the reasonableness of the seizures in this case because he erroneously determined that seizures had not occurred within the meaning of s. 8. In my view, seizures occurred within the meaning of s. 8 when the police took control over the computers in which Mr. Lambert had a reasonable expectation of privacy. The court extensively walks through it's Charter s.8 reasoning at paras 46-91.
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