We were left, then, with a situation where the trial judge stopped what otherwise appears to have been a lawful prosecution from proceeding to its ordinary conclusion based on his disapproval of how the police sought to gather evidence during the investigation. It will be noted, again, that he made no finding of entrapment, nor any clear finding of police conduct so grievously oppressive and continuing that it was one of those rare and clear cases that even the conduct of the prosecution could not be tolerated. He was non-specific as to what made the proceedings unacceptable on any of the three bases of criticism mentioned above. It is also not clear what the trial judge felt was the “bad faith” of the officers. It is not bad faith for officers to seek to preserve evidence. Indeed, a sincere desire to preserve evidence has been regarded as a factor which may justify a search: see e.g. Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, 74 C.R. (3d) 316, 53 C.C.C. (3d) 257 at paras. 18 to 49, paras. 58 to 64. As for the officer misleading the wife, it must be noted that the hard drive was not accessed until a search warrant was obtained, so in that sense the seizure also had the objective of preservation of evidence.
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