Summary
37305
Clifford Roger Montgomery v. Her Majesty the Queen
(British Columbia) (Criminal) (By Leave)
Keywords
None.
Summary
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Criminal law – Search and seizure – Judicial prior authorisation – Search of cell phone incident to arrest – Co-conspirators’ exception to the hearsay rule – Requirement to name a known person in a wiretap application or authorization – Judge’s residual discretion to set aside warrants and wiretap orders on basis of subversion of the process of prior judicial authorization – Temporal limits on searches of cell phones seized incidental to arrest – Application of the co-conspirators’ exception to the hearsay rule to declaratory acts.
97 kilograms of cocaine was discovered at the border, inside a machine being imported from Argentina to Kelowna. Warrants were authorised to intercept the communications of the consignee of the shipment and all persons in the vicinity of the machine. A controlled delivery was made under police surveillance. Mr. Montgomery and two co-accused picked up the machine, transported it to a remote location, and dismantled it. Mr. Montgomery’s communications were intercepted. His residence was searched. His Blackberry was seized incident to his arrest. Data on the phone was retrieved without a warrant 16 months after arrest. The application for authorisation to intercept private communications did not disclose that cocaine had been found inside a shipment of machine spare parts being imported from Argentina to Kelowna or that, in a controlled shipment of that cocaine, Mr. Montgomery had been observed conducting what appeared to be counter-surveillance. Mr. Montgomery was not named in the authorisation. The consignee testified at trial that a friend, Mr. Diaz, asked for help arranging the importation of the machine. He described Mr. Diaz’s conduct and communications.
Lower Court Rulings
Supreme Court of British Columbia
73426, 2013 BCSC 1010
Supreme Court of British Columbia
734526, 2014 BCSC 1483
Court of Appeal for British Columbia (Vancouver)
CA42304, 2016 BCCA 379
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