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When can ministry investigators seize documents outside the scope of a search warrant?

During the execution of a warrant, Ministry of the Environment investigators seized approximately 100 documents that clearly lay outside the scope of the warrant. They showed one set of documents to the company, who consented to the seizure of that particular set of documents. The investigators contended that this consent allowed them to seize other documents, including those not discovered until after the “consent” was given. The investigators did not seek or obtain any written consent to the seizure of the documents, nor did they provide a list of the documents that they wished to seize. Company representatives testified that they were not asked to consent to the seizure of any additional documents, and did not do so.

In a voir dire on the admissibility of the seized documents, Justice Mackey ruled that they were not admissible.  The Crown had the onus of proving that the company had given a clear, informed, and unequivocal consent to the seizure of the documents. In this case, the Crown was unable to prove that the defendants were aware of the identity of the documents that the investigators wished to seize under the purported consent. R. v. Lacombe, Ottawa Court of Justice,  June 7, 2010.

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