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Criminal - Warrantless Searches. R. v. Neill
In R. v. Neill (Ont CA, 2023) the Court of Appeal considered 'exigent circumstances' as the basis for a warrantless search:[4] The appellant argues that the application judge erred in finding that exigent circumstances existed to seize the Blackberry without a warrant and in rejecting the appellant’s contention that the police “created” exigent circumstances in the sense which concerned this court in R. v. Phoummasak, 2016 ONCA 46, 346 OAC 9, at para. 14. We disagree. We agree with the application judge that this was not a situation in which it can be said that the police had grounds to obtain a search warrant, and chose not to obtain one, but instead chose to pursue other investigative steps for the purpose of creating exigent circumstances.
[5] The application judge made factual findings that amply supported his conclusion that there were exigent circumstances that authorized the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code. ...
[6] The application judge correctly turned his mind to the legal test for a warrantless search based on exigent circumstances, referring to R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 27, and Phoummasak, at para. 12 (see also the subsequent decision of this court in R. v. Hobeika, 2020 ONCA 750, 153 OR (3d) 350, at para. 34-36, 42-43 and 54-55).
[7] The appellant does not contest that the officers had reasonable and probable grounds to seize the Blackberry, but argues that the application judge erred in finding that exigent circumstances existed. We disagree. The findings made by the application judge were open to him based on the record which was before him. This court has recognized that substantial deference must be paid to a trial judge’s findings about whether there was an imminent risk that evidence could be destroyed: Hobeika, at para. 45. In light of the application judge’s factual findings, we see no error in his conclusion that exigent circumstances existed to justify the warrantless seizure of the Blackberry, pursuant to s. 487.11 of the Criminal Code, or with his finding that this case did not involve a situation where police created exigent circumstances.
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