Christopher Nowlin -High Profile Lawyer,
Law Professor
In a recent letter to BC Legal Aid, high profile lawyer Christopher Nowlin stated "it is reasonable to expect that the BC Court of Appeal would agree that VPD personnel searched Mr. Fox’s phone contrary to s.8 of the Charter, but I am not confident that the Court would do this."
In other words, what Mr. Nowlin is saying is that he believes the Court of Appeal would agree that my Charter rights were violated by the illegal search and that any evidence resulting from that search should be excluded; but that regardless, the Court of Appeal would ignore the law on the matter and uphold the conviction.
Christopher Nowlin is a very highly regarded, very accomplished lawyer. In additon to practicing law, he is a Professor of Law at Langara College, and has published numerous books.
Mr. Nowlin was contracted by Legal Aid to review the appeal of my most recent conviction. In conducting that review of the trial record, Mr. Nowlin found that the trial judge (Jennifer Oulton) erred in ruling the search of my phone was legal. In short, the warrant for the search was only valid from 2022-07-15 through 2022-07-28, however the VPD's Digital Forensics Unit (DFU) did not extract the data from the phone until 2022-08-18.
The Trial Proceedings
Prior to the trial, prosecutor Elliot Poll stated in court that they were not going to be relying on any information from my phone. Based on that, I did not pay much attention to anything in the disclosure material relating to my phone. I believe the reason Poll decided not to use anything from the phone was because he knew the search was illegal and I would challenge it.
But then, on the first day of the trial, prosecutor Tara Laker announced that they intended to call an expert witness regarding information found on my phone. Oulton pointed out they were required to provide at least 30 days notice of their intention to call an expert witness. I believe the prosecution was using that as a tactic to delay the end of the trial by at least 30 days. Oulton allowed the prosecution to provide me the notice at that time, thereby ensuring the trial would drag on for at least another 30 days (it was scheduled to be a 3 day trial).
I did not become aware of the late search of the phone until after the prosecution called their expert witness, Sgt. Robin Shook of the Vancouver Police, to testify about information he claimed to have found on the phone. Interestingly, the DFU report, which had been provided to me as part of disclosure, did not make any mention of when the data was extracted. That was, of course, very suspicious to me because that's a critical piece of information which, historically, has always been included in their report.
Following Shook's testimony, I discovered by chance, in one of Detective Amber McElroy's narratives, that the data had not been extracted from the phone until 2022-08-18 – three weeks after the time authorized by the warrant. I promptly notified the prosecutor, Tara Laker, that I would be applying to exclude any evidence from the phone, including Shook's testimony, based on the search being illegal.
At the subsequent hearing, for the application, I argued that the warrant had expired by the time the data was extracted. Laker argued that the time frame on the warrant was to allow the police to obtain the phone from their secure evidence locker and to bring it to the DFU; that as long as it was delivered to the DFU before 2022-07-28 then it didn't matter when the data was extracted or searched. Oulton asked Laker if she had any authorities (case law) to support that. Laker said, No. Ultimately, Oulton ruled that the wording of the warrant applied only to the VPD taking the phone from the locker and delivering it to the DFU. Oulton also did not provide any authorities to support that decision, nor did she provide any explanation or analysis.
So, back to Nowlin's letter to Legal Aid: In the letter, Nowlin discusses the legality of the search at length, providing numerous cases to support the position that by making the warrant valid for two weeks, the issuing judge's intention was that that would include the time required to search (or, more technically, to extract) the data from it. Nowlin pointed out that if the judge's intention was only to cover the time to take the phone from the evidence locker to the DFU, then it would have been for, maybe, a single day - not for two weeks. And again, he provides case law to support that.
Nowlin states in his letter:
However, it appears as if Fox’s phone was not actually analyzed until August 18, 2022, by Sgt. Shook. This was about a month later than the search period facially authorized by the warrant.
However, it is important to note that the actual search of the phone was way, way later than that. The data was extracted from the phone, onto VPD's system, on 2022-08-18, but according to Shook's report, he didn't begin searching it until 2023-01-12 – six months after the time authorized on the warrant!
So, there you have it: A highly respected and accomplished member of the Vancouver justice system openly acknowleding that the BC Court of Appeal does not concern itself with things like the law when making it's rulings.
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