In its recent decision of R. v. Vu, 2013 SCC 60 the Supreme Court of Canada put distinct limits on the ability of police to search computers when a warrant provides for search of premises but does not specifically mention computers. The understanding has been that once police obtain a warrant to search a place for certain things, they do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. However, this case raised the question of whether the traditional framework is appropriate for computer or cell phone searches. These searches give rise to unique privacy concerns. The Court found that the privacy interests at stake when computers and similar devices are searched require that, to a certain extent, such devices be treated as separate places from the physical place being searched under the warrant. The upshot?
Only a specific, prior authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search. This means 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. If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer, and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.
In this case, however, even though the search of the computer was found to be unlawful, the Court declined to exclude the evidence under s. 24(2) of the Charter. The Information To Obtain the warrant referred to the intention to search for computer-generated documents. Considering that the state of the law with respect to computer searches was uncertain when the investigation was being carried out and considering that the search was conducted in a reasonable manner, the violation was not serious. There was a clear societal interest in adjudicating on their merits charges of production and possession of marijuana for the purpose of trafficking (the offence in this case). Balancing these factors, the Court concluded that the evidence should not be excluded. The police believed at the time, and on reasonable grounds, that the search of the computer was authorized by the warrant.
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