Judge to rule on admissibility of cellphone photos

Crown prosecutors admit accused man’s rights were breached.

Crown prosecutors conceded the rights of a Red Deer man accused of second-degree murder were breached when photos were recovered from his cellphone.

Nathan Desharnais’ cellphone was seized when he was arrested in connection with an unrelated aggravated sexual assault investigation in June 2012, Red Deer Court of Queen’s Bench heard during a voir dire to test the admissibility of the photo evidence.

The phone was locked so police couldn’t see what was on it at first. The cellphone sat in an evidence locker for a year before new technology was used to crack it.

Deleted photos of a woman were later discovered that Crown prosecutors say are of Talia Meguinis, 27, the woman Desharnais is accused of killing in February 2012. He is also charged with interfering with human remains.

Meguinis’s body was found at a Red Deer recycling facility on Feb. 22, 2012. Desharnais, 28, was charged with her murder seven months later after an RCMP Mr. Big sting operation.

Crown prosecutor Bruce Ritter acknowledged the phone was searched without a warrant but argued that police believed they had the right to examine the phone through a warrant used to search Desharnais’ residence.

Police also saw the seizure of the phone as “incidental” to the arrest of Desharnais on the aggravated sexual assault charge as well as several other offences. In that context, officers believed they could search the phone given the laws at the time.

The Crown says photos from the phone have been matched to autopsy photos and will be used to corroborate that Meguinis was strangled.

The date they were taken is the same day that Meguinis was last seen alive.

Ritter said given the “very significant evidence” and the seriousness of the charges against Desharnais the cellphone photos should be allowed as evidence in the trial.

MacNaughton said police had plenty of time to get the appropriate warrant and the evidence from the cellphone should not be admissible.

“They didn’t bother to do it properly,” MacNaughton said of the search, which she called a “flagrant breach” of her client’s rights.

Red Deer Court of Queen’s Bench Justice Eldon Simpson is expected to rule Tuesday morning on whether the photos will be allowed as evidence.

pcowley@reddeeradvocate

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