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How long can police keep items seized in criminal investigation?

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Readers are likely well aware of the importance of evidence when it comes to proving or disproving a criminal allegation. Depending on what someone is accused of the evidence will take different forms. When it comes to child pornography offences the use of a computer is often involved. Accordingly, the files found on the computer will be relevant. Of course to determine what files are on computer one must be able to access those files. If they are password protected this can be difficult.

Police in Ontario are currently having difficulty in obtaining the files of a computer they seized as part of a child pornography investigation prompted by information from Microsoft regarding almost 90 images of child pornography that were uploaded to a storage service that is cloud based. The account was tracked to the home where the computer was found. Despite having had the computer since Feb. 2014, multiple computers working around the clock have yet to crack the hard drive’s alleged 26 character password. Other storage devices seized in the course of the arrest did not have any images that constituted child pornography.

Generally, under the Criminal Code anything seized in the course of an ongoing investigation cannot be kept by police for longer than a year. There is an exception to that rule if a Superior Court judge deems an extension to be legitimate, which a judge in this case recently did.

An extension of this nature is not common. The policy manual for federal prosecutors indicates that generally it is applicable in situations where informants need to be protected or care needs to be taken to prevent the defence from obtaining early access to police files in complex investigations. The judge determined that the process of decrypting the hard drive was complex enough to warrant the exception. The prosecution was provided a 12-month extension.

So far no charges have been filed in this case. If police are unable to obtain proof of the images on the hard drive it is difficult to see how a criminal case could be made against the man. With the extension the police now have another year to try to do this.

Regardless of the outcome of the search it is likely the man has a criminal defence lawyer helping to guide him through the process.

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