R. v. David M. DALEY, 2008 NBPC 29 (CanLII)

  • June 02, 2008

Date: 2008-06-02 Judge Alfred H. Brien. | Link

Motion to exclude evidence stored on a hard disk seized by CRA in the course of an investigation of tax evasion. The hard disk included information related to another company that would subsequently be investigated by CRA under a separate warrant (Pine Crest), as well as that covered under the original warrant (Nautica). In granting the motion, the court observed that "the CRA did not take the necessary precautions, after reviewing and determining that they had seized documents to which they were not entitled , to return the documents and protect them from misuse. In this case the CRA agents actually copied and used the documents there after, constituting another breach." (para 46) "In all there was a clear violation of the Accused's section 8 Charter Rights." (para 47) The court acknowledged that "given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant." (para 31) "However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner." (para 32) Dan Michaluk has a nice summary here.