Cell phone admissibility still at centre of trial

Justice Eldon Simpson to deliver his decision regarding the issue on Tuesday

  • Jan. 30, 2017 10:47 p.m.

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Justice Eldon Simpson is deciding whether photos found on a cell phone can be admitted as evidence to a second degree murder trial taking place in Red Deer’s Court of Queen’s Bench.

Nathan Desharnais is charged with second degree murder and offering indignity to human remains after the body of Talia Nellie Meguinis, 27, was found at a recycling facility in the Riverside Industrial area on Feb. 22nd, 2012.

Desharnais was arrested and charged in September 2012 after an undercover operation, dubbed Mr. Big, was conducted.

Two days of the trial took place last October in which a voir dire was held. A voir dire is a hearing within a trial to determine the admissibility of evidence. Today’s evidence was also held under a voir dire.

Defense lawyer Patty MacNaughton has argued the evidence from the cell phone is not admissible to the trial as it was obtained through an unlawful search and seizure. The cell phone was seized during another unrelated investigation.

Last week, Don Lee, a civilian member of the RCMP and tech crimes analyst, testified he received the cell phone in question from the RCMP in June 2012 and was instructed to analyze it.

“I did not see a search warrant for this phone. The search was incidental to an arrest,” said Lee, adding he did not access it right away because it was password protected so it was placed into an exhibit locker.

Lee said in June 2013 he took the phone from the locker and was able to bypass the passcode and extract information. He said a report was completed regarding the analysis of the cell phone on July 2nd, 2013.

MacNaughton said a proper warrant was not obtained before the search of the cell phone more than one year after its seizure.

“The crown wants to put in this evidence to bolster the reliability of the alleged statements Mr. Desharnais made to undercover officers in the Mr. Big sting,” said MacNaughton. “Police did not have the photographic evidence when they arrested Mr. Desharnais on the murder charge. The arrest was based on the alleged statements that were made by Mr. Desharnais.

“This would have never made the light of day if it weren’t part of another investigation. They received it improperly in another investigation and now they are trying to use it. If it were weak or strong evidence, it all could have been done above board. They didn’t bother to do it properly.”

Crown Prosecutor Bruce Ritter said investigators appeared to have forgotten about the phone. “Mr. Lee learned about technological advances so he went to the phone.

“The seriousness of the breach is tempered or lessened by the police thinking they were acting by lawful means at the time. Other than the Mr. Big operation, the photos help us because the time of the photos puts the victim in the presence of the the accused.”

Simpson will deliver his verdict regarding the admissibility of this evidence at 10 a.m. Tuesday morning in Red Deer’s Court of Queen’s Bench. The trial is expected to run through to mid-February.

efawcett@reddeerexpress.com

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