But couldn’t Person A’s testimony be enough to get a search warrant for person B (not arrest them) which could find backup media, other laptops with the material that would be enough to arrest them.
I’m having a hard time imagining a reason for someone to confess to burglary to get back at someone they probably don’t know.
BTW I know of one case where an IT repair business got a computer for repair with such images, and the owner was indeed arrested.
That’s a lot easier for law enforcement to pursue a case since the laptop was legitimately come by, and the repair shop’s records could back up the chain of custody.
Sure, but the shop was clearly not worried about being charge with possession. And they had no reason not to report it, while the hypothetical burglars had a very good reason to just destroy the laptop and the evidence.
So I think this is confusing two things. The state has a duty to show chain of custody once it takes custody of evidence. If they break that (it say a cop takes the laptop home to play Fortnite with his buddies) then the evidence can be deemed admissible. No matter how compelling the evidence is, the jury aren’t seeing it.
But that only applies once the state has taken custody of the evidence, there is no duty to show chain of custody before the state took custody that’s an oxymoron. The paper trail from the IT guy will definitely help (as it shows it is the accused’s laptop, you don’t have to take someone’s word for it). But not having that would not make it inadmissible, it would just make it less compelling evidence
This summary is not correct. The issue under s 24(2) is not the seriousness of the offence. The issue is the seriousness of the Charter breach, and the impact of the breach on the accused’s rights, such as the fairness of the trial.
The Supreme Court has held that the seriousness of the offence is generally only considered if those two factors aren’t determinative.
Plus, seriousness of the offence cuts both ways. Yes, society has an interest in having serious cases determined on the merits of the evidence, but society also has an interest in ensuring that a person is not convicted of a serious offence if there has been a serious Charter breach.
And contrary to your suggestion, the Supreme Court has excluded evidence in murder cases due to Charter breaches, even though that would make conviction unlikely in a retrial. See for example R v Burlingham, 1995] 2 S.C.R. 206:
Yes, that’s what I meant… Was the search so egregiously wrong that the evidence must be excluded, no matter how compelling?
But I suspect it comes down to the seriousness of the breach vs. seriousness of the crime. Allowing the police to ignore a refusal to search a car too often will in fact bring the administration of justice into disrepute, so there must be consequences for such an action. I seriously doubt the level of crime is not a consideration in that case.
Canada relies on the judge in the case to balance these two choices.
But to get back to the OP -
The Hunter Biden laptop case is a simple example of the sort of case (although no CP). Since it was “turned in” through a highly dubious chain of custody, it is impossible to say for certain what on it is real and original and what is not. (IIRC in a recent documentary, Lev Parnas says the laptop was stolen in Ukraine by Russian “Intelligence”)
In the OP’s scenario, the problem would be for the prosecution to prove the content is from the original owner. Creation and last updated dates can be faked. Perhaps an analysis of the disk layout could determine possible creation time sequence, but nowadays many laptops use SSD drives which deliberately randomly arrange data to avoid overwriting one area of the disk. The event log may tell when the laptop was turned on, and then off - but removing the disk and connecting it to a different PC would eliminate that as a possibility. (Was the warranty seal broken?) you can see the details get very technical very quickly.
Particularly if the thieves drop it off anonymously, how can the prosecution verify who had it and when? Even if they say “we never did anything except turn it on once” - how can anyone be sure? It also depends how long they had it before turning it in. Another data point would be whether the owner would go to the police and say “please find my stolen laptop”? Do the thieves have a friend who was smart with computers? Did they concoct this because the police were closing in on them, to miigate being prosecuted for burglary?
I guess once again, it comes down to a jury and whom they believe. (And how good the defense lawyer is)
Yes. Absolutely. That was the first part my initial post. It should result in a search warrant, not an arrest. An arrest would come as a result of the search warrant and/or follow up investigation(s).
I missed that, perhaps because the rest of the discussion was assuming the cops would arrest the original owner with no further evidence. So, I agree.
As I understand it (IANAL), it’d be valid evidence at trial, provided that the thief could be persuaded to take the stand and to say under oath “Yes, I found the laptop in Mr. Scumbag’s bedroom, and I turned it on once and saw what it contained, and then immediately turned it in to the police”. And you’d probably also need testimony from the police cyber guys about chain of custody, analysis of the data, and so on. As a practical matter, it might be weak evidence, because a jury might not believe the word of a felon, and so the prosecutors would probably want a bunch of other pieces of evidence, but it would still be one of the pieces of evidence used to build the case.