Prior to searching a given location, police officers must obtain authorization to do so from a judge through a search warrant. Once the search has been authorized, police officers may, as a general principle, search all containers found on the premises provided for in the search warrant – such as filing cabinets, boxes, briefcases and cupboards – in order to find evidence linked to an offence.

Does this general search power, however, allow police officers to search computers or electronic devices, such as smartphones, found on the premises? According to the Supreme Court of Canada's recent decision R. v. Vu, 2013 SCC 60, the answer is no. Rather, computer searches must be specifically authorized.

Facts and Decision

At issue in Vu was the police examination of two computers and a cellular phone that were found by police officers inside a residence in the course of their search of the premises. A search of these devices allowed police to identify the occupant of the residence and to press criminal charges against him. At trial, the accused asked the judge to exclude the evidence found by the search of the devices as the warrant did not specifically authorize the police to search the computer and the cellular phone.

In a unanimous decision, the Supreme Court of Canada held that the search of computers and smartphones is different from that of cupboards or filing cabinets. To comply with the accused's fundamental rights, computers and smartphones must be specifically authorized in the search warrant. The Court nonetheless refused to exclude the evidence obtained in the illegal search, satisfied that the admission of the evidence would not bring the administration of justice into disrepute1.

Computers Are Distinct Locations

The decision in Vu excludes computers from the general principle, as computer searches give rise to particular privacy concerns. Indeed, computers:

  • store immense amounts of information, including personal information;
  • hold information on a user's interests, habits, and identity, without the knowledge of the user;
  • retain files and data even after the users think that they have destroyed them; and
  • give access to information and documents that are not in any meaningful sense at the location for which a search is authorized.

Given their numerous and striking differences, the Court held that computers must be treated as distinct locations. If police wish to search any computers found on the premises they are searching, "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 they fail to obtain prior authorization, the police may nonetheless seize the computers and, then once authorized to do so, they may search the computers.

Search Protocols Are Not, as a General Rule, Required for Computer Searches

Vu also states that specific search protocols are not, as a general rule, required for computer searches. The Court recognizes, however, that "these conditions may be appropriate in some cases", notably when computers store information covered by intellectual property rights or by a privilege.

In any event, police must conduct an authorized search in a reasonable manner. As such, they must cease their electronic search when it proves to no longer be relevant.

Comments

Vu is the first Supreme Court decision to clearly recognize the difference between traditional storage spaces and that which is offered by computers. The decision sets the foundation for future debates that will arise over the methods in which searches are to be conducted in the virtual domain. It will be interesting to see how the guidelines established in Vu will be developed in the context of a more complex business environment where business information is mixed with clients' and employees' personal information.

Footnote

1 In Canada, when evidence is obtained in a manner that infringes the rights of an accused under the Canadian Charter of Rights and Freedoms, a court must exclude it from trial if it is established that the admission of the evidence in the proceedings would bring the administration of justice into disrepute (section 24(2) of the Charter).

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