Search and Seizure of Computers and Cellphones

The Supreme Court of Canada released its unanimous decision in R. v. Vu this week, dealing with s. 8 of the Charter and the search and seizure of electronic devices such as computers and cellphones.

The police were interested in the potential theft of electricity for a specific home and obtained a search warrant. The warrant in this case did not specify the search of the accused’s computer in their Information to Obtain a Search Warrant (“ITO”), although it did indicate “computer generated notes.” The search revealed marijuana plants, and the charges included production of marijuana, possession of marijuana for the purpose of trafficking, and theft of electricity.

The trial judge, Justice Bruce, acquitted the accused based on the exclusion of evidence found from the computer and cellphone. The Court of Appeal set aside the acquittal and ordered a new trial, indicating there was no breach of the accused’s s. 8 rights.

Although Justice Cromwell found that the warrant authorized the search for documents proving ownership or occupation of the property, he agreed with the appellant and stated that a computer searches require specific pre-authorization in the warrant. Justice Cromwell described the balance under s. 8 between the legitimate needs of law enforcement and the right to be free of state interference as follows:

  1. the police must obtain judicial authorization for a search before they conduct it
  2. an authorized search must be conducted in a reasonable manner

Justice Cromwell then set out to describe how searches of computers are different from other searches,

[39] …the general principle is that authorization to search a place includes authorization to search places and receptacles within that place… However, this assumption is not justified in relation to computers because computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization.

Computers are different for the purposes of searches for the following reasons (paras. 40-45):

  • searches of computers are enormously intrusive
  • computers store immense amounts of information which include the core biographical information of a person
  • computers contain information that is automatically generated, often without the owner knowing
  • computers retain files and data even after users think that they have destroyed them
  • computers serve as portals to an almost infinite amount of information

Justice Cromwell extended this rationale to modern cellphones as well,

[38] I do not distinguish, for the purposes of prior authorization, the computers from the cellular telephone in issue here. Although historically cellular phones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers. The trial judge found that the cell phone in this case, for example, had a “memory capacity akin to a computer”: voir dire decision, at para. 65. In these reasons, then, when I referred to “computers”, I include within that term the cellular telephone.

This analysis would be interesting to apply to the recent Ontario Court of Appeal decision in R. v. Fearon, but Justice Cromwell was very explicit about limiting the interpretation of this case to other circumstances,

[63] It is not my intention to create a regime that applies to all computers or cellular telephones that police come across in their investigations, regardless of context. As the respondent correctly points out, police may discover computers in a range of situations and it will not always be appropriate to require specific, prior judicial authorization before they can search those devices. For example, I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular phone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized. As noted earlier, it is not necessary that the police present reasonable grounds that a computer will be found in order to obtain a warrant that includes authorization to search a computer found in the premises.

Despite the violation of s. 8, Justice Cromwell conducted his own s. 24(2) analysis for the exclusion of the evidence and stated,

[74] …I am of the view that the evidence should not be excluded. The police believed on reasonable grounds that the search of the computer was authorized by the warrant. While every search of a personal or home computer is a significant invasion of privacy, the search here did not step outside the purposes for which the warrant had been issued and it did not include forensic examination. The evidence obtained was reliable, real evidence which was important to the adjudication of the charges on their merits.

 

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Comments

  1. Seeing as the Court picked up Fearon for this term, it will be quite interesting to read where they settle on the matter. Given that they went 9-0 here, it’s hard to imagine them changing views significantly.

  2. Ryan,
    The court didn’t explicitly mention Fearon, though I’m certain they were aware of it. Also, Justice Cromwell was very clear that this analysis did not apply to search incident to arrest. This case should only be used for search with a warrant.

    If we were to try to guess what the Court would say for search incident to arrest, we can only perhaps derive that searches of computers and cellphones are different from other “containers.” The Court of Appeal refused to carve out a special exception, and it’s no certainty that the Supreme Court of Canada would do so simply because this difference exists.