Supreme Court Requires Warrant to Search Computer Content

Author(s): Jack Coop

Nov 11, 2013

The Supreme Court of Canada has ruled that warrants to search premises must expressly authorize the police to search computers found therein, in order to avoid infringement of s. 8 of the Canadian Charter of Rights and Freedoms – the right to be secure against unreasonable search or seizure.  The R. v. Vu, 2013 SCC 60ruling has broad application to all criminal and quasi-criminal investigations in which warrants could be used and the case will have important implications for all investigations conducted for the purpose of laying charges under public welfare legislation, such as environmental, health and safety or competition laws.

Background

In R. v. Vu, the property owner was criminally charged with production of marijuana, possession of marijuana for the purpose of trafficking and theft of electricity. The police had obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners and/or occupants of the residence. Even though the Information to Obtain (ITO) indicated that the police intended to search for “computer generated notes,” the warrant did not specifically refer to computers or authorize the search of computers. In the course of their search of the residence, police found marijuana, two computers and a cellular telephone. A search of the devices revealed evidence that the appellant was the occupant. At trial, he claimed that the searches had violated his s. 8 Charter rights.

The trial judge excluded most of the evidence found as a result of these searches and acquitted the appellant of the drug charges on these bases: 1) the ITO did not establish reasonable grounds to believe that documents identifying the owners and/or occupants would be found in the residence; and 2) the police were not authorized to search the personal computers and cellular telephone because those devices were not specifically mentioned in the warrant.

The Court of Appeal set aside the acquittals and ordered a new trial on the grounds that the warrant had properly authorized the searches and that there had been no breach of the appellant’s s. 8 Charter rights.

On appeal to the Supreme Court, interveners included the Attorneys General of Alberta and Ontario, the British Columbia and Canadian Civil Liberties Associations, and the Criminal Lawyers’ Association (Ontario).

A link to the reasons of the Court may be found here.

Supreme Court decision

The Supreme Court had little difficulty dispensing with the first issue – whether there were reasonable grounds to issue the search warrant at all.  On the basis of all the facts, including the advice of B.C. Hydro to the police that electricity was being diverted and used without being recorded for billing purposes, the Court concluded that there was reliable evidence in the ITO that might reasonably be believed by the authorizing justice in order to issue the search warrant.

It was the second issue – whether prior authorization is required to search computers – which occupied most of the Court’s reasons. 

The Court noted that while there exists a well-established general principle that authorization to search a place includes authorization to search places and receptacles within that place, this general principle cannot apply to computers. That is because computers are not similar to other receptacles that may be found in a place of search.

Reaffirming the principle expressed in the Court’s prior decision in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, that computer searches are among the most invasive of privacy interests under s. 8 of the Charter, the Court provided four compelling reasons why computer searches represent an unprecedented and intrusive invasion of privacy that must be treated differently from other searches:

  1. Computers store immense amounts of information, some of which, in the case of personal computers, will touch the “biographical core of personal information.” In light of this massive storage capacity, there is a significant distinction between the search of a computer and the search of a briefcase found in the same location.  A computer can be “a repository for an almost unlimited universe of information.”
  2. Computers contain information that is automatically generated, often unbeknownst to the user.  This information includes temporary files and internet user histories.  Searching a computer therefore enables investigators to access intimate details about a user’s interests, habits, and identity, drawing on a record that the user has created unwittingly. There is no analogue in the physical world of “receptacles.”
  3. A computer retains files and data even after users think that they have destroyed them.  Deleting files does not destroy them. Thus, computers not only create information without the users’ knowledge; they also retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.
  4. A computer connected to the Internet or a network will give the searcher access to information and documents that are not in any meaningful sense at the location for which the search is authorized.  As a result, limiting the location of a search to “a building, receptacle or place” is not a meaningful limitation with respect to computer searches.

The Court concluded that these striking differences between computers and traditional “receptacles” call for distinctive treatment under s. 8 of the Charter.

Applying these distinctive facts to the test for issuing a search warrant in Hunter v. Southam Inc.,1 the Court ruled that “if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for.”  As a result, the search warrant must expressly authorize the search of any such computers.

If police or investigators come across a computer in the course of a search and their warrant does not provide specific authorization permitting them to search them, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data.  But if they wish to search the data, they must obtain a separate warrant in order to do so.

The Court expressly rejected the argument of public interest interveners that the manner of searching a computer (the “search protocol”) must be established in advance by the authorizing justice prior, as conditions in a search warrant. At the same time, the Court rejected the notion that even armed with a warrant authorizing search of computers; the police “had a licence to scour the devices indiscriminately.”  They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable.

Despite ruling that the search of computers in this case was not properly warranted and therefore violated the appellant’s right to be free of unreasonable search and seizure under s. 8 of the Charter, the Court allowed the information so obtained to be admitted as evidence.  Under s. 24(2) of the Charter, evidence will only be excluded if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”  On the facts of this case, the Court determined that the admission of evidence would not bring the administration of justice into disrepute.  In the result, the Court upheld the Court of Appeal decision, set aside the acquittals and directed a new trial.

Implications

The decision has important implications for criminal and quasi-criminal prosecutions, and best business practices:

  1. Using warrants in investigations: In the future, police and other quasi-criminal investigators intending to seize and search computers found at either a home or place of business, will need to seek express judicial authorization of same.  This will require them to present reasonable grounds to the authorizing justice in the ITO that evidence relevant to the commission of the offence will be found on any computers found on the premises.
  2. Seize first, obtain warrant to search later: Unfortunately, the Supreme Court appears to have authorized the unfortunate practice of using a general search warrant (one that does not authorize computer searches), to seize and take away entire computers found on the premises, and to subsequently obtain a warrant to search those computers.  The Court failed to address the very serious impact such seizures may have on the ability of individuals and companies to continue operating otherwise entirely legal and legitimate businesses.
  3. No need for search protocols as a component of a warrant: The Court has not required conditions of search establishing a “search protocol” for computer searches, relying on the fact that the manner of search may be reviewed by a court after the fact as to whether it was “reasonable.” Therefore, despite this caution to investigators, the decision is likely to spawn many more cases in which computer searches, even those authorized by warrant, are challenged as unreasonably intrusive.
  4. The need for businesses to be pro-active in this area: Businesses which from time to time may be exposed to criminal or quasi-criminal investigation should take precautions to ensure that, inter alia, when investigators come to search computers pursuant to a warrant:  

 

        
  1. the warrant expressly authorizes computer searches and if not, the warrant is legally challenged;
  2. cooperative options are provided to investigators in order to avoid the seizure of computers, minimize the disclosure of collateral evidence, and minimize the unnecessary disruption of business;
  3. claims are asserted in a timely manner over solicitor-client privileged and confidential intellectual property, so that investigators are required to not view any such information until expressly authorized to do so by the court,2
  4. a clear evidentiary record is established that the proposed seizure of computers is unnecessary and therefore unreasonable, and the proposed search is not sufficiently discriminating and therefore unreasonable, in order to maximize the ability of legal counsel to challenge any charges arising from the search; and,
  5. the Crown is put on notice that it may be held civilly responsible for business damages occasioned by indiscriminate and unreasonable searches, whether at common law or by virtue of s. 24 Charter damages. 

1 [1984] 2 S.C.R. 145. In Hunter, the Court requires that the authorizing justice must undertake a specific assessment of “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

2  In Ontario, under the Provincial Offences Act, s. 160, where solicitor-client privilege is claimed in respect of a document, the document must be sealed and placed in the custody of the court, and client claiming the privilege may bring a motion for an order sustaining the privilege and for the return of the document. 

 

Authored by Jack Coop, Graham Reynolds Q.C.

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