Il peut arriver, dans certaines circonstances, que le défaut des policiers de prendre des notes de la fouille d'un ordinateur peut amener la Cour à tirer l'inférence que la fouille a été effectuée abusivement

R v Villaroman, 2018 ABCA 220

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[17]           Nor can we conclude that any failure to take detailed notes of the manner in which the search was conducted constitutes a section 8 breach in these circumstances. The appellant relies on guidance about the importance of note-taking which the Supreme Court provided in Vu and R v Fearon, 2014 SCC 77, [2014] 3 SCR 621. In Vu, Cromwell J noted that the officer’s failure to take notes was “disquieting” and directed that “notes of how a search is conducted should […] be kept, absent unusual or exigent circumstances”. But he also noted this requirement was not a “constitutional prerequisite”: para 70. Later, in Fearon, Cromwell J elevated the requirement to take notes to a constitutional requirement in cases where a police officer searches an electronic device incident to arrest: para 82. Note-taking became mandatory in Fearon because the common law power to search incident to arrest is an “extraordinary search power that requires neither a warrant nor reasonable and probable grounds.” Accordingly, there is a heightened need for police to take detailed notes, allowing courts to engage in after-the-fact review to determine whether a search was lawful and conducted reasonably. Even when police obtain a warrant based on reasonable and probable grounds, there may be some cases where the failure to take notes of a computer search could give rise to an inference that the police conducted the search unreasonably. On this record, however, we cannot draw such an inference. The forensic examiner testified at length about how he conducted the search. The failure to take detailed notes does not appear to have undermined the appellant’s ability to meaningfully challenge the reasonableness of the search.