On November 7, 2013, the Supreme Court rendered an important decision regarding the scope of warrants granted for the search of computers and cell phones. Although issued in the context of criminal charges filed under the Controlled Drugs and Substances Act and the Criminal Code, the Supreme Court's remarks are of great use to determine the extent of searches and seizures conducted under the Competition Act.
In R. v Vu,1 British Columbia police officers had obtained a warrant authorizing the search of the accused's residence to seek evidence confirming the identity of Mr. Vu. The mandate issued in 2007 was obtained for the search of "computer generated notes" without specifically authorizing a search of the accused's computers and cell phone.
At trial, Mr. Vu was acquitted due to the rejection of the evidence obtained following the search of his residence, as the court ruled, inter alia, that the mandate should have explicitly authorized the search of devices found in Mr. Vu's residence. On appeal, a new trial was ordered by the Court of Appeal for British Columbia, which found that no unreasonable search had been committed in violation of Article 8 of the Canadian Charter.
The country's highest tribunal concluded that the search was unlawful, since it did not expressly authorize the search of computers found within the premises. The Supreme Court nonetheless upheld the Court of Appeal's decision, holding that the violation was not serious enough to warrant the rejection of the evidence obtained following the unlawful search.
The Supreme Court first noted that "it is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer," adding that it made no distinction between a personal computer and any other type of computer, as any computer is capable of containing personal data. Thus, court authorization is imperative to carry out the search of computers found in premises searched. Interestingly, the Supreme Court made no distinction between the search of computers and cell phones, holding that nowadays, such devices include a storage capacity similar to that permitted by computers.2
The general principle is that where a warrant is issued for the search of premises, the search of receptacles found therein, such as drawers or a closet, is implicitly allowed. However, the Supreme Court held that this rule is not justified for computer searches, as computers generate "information without the users' knowledge and [...] retain information that users have tried to erase". In addition, the judges ruled that since a computer or a cell phone may be connected to a network, data that is not part of the premises searched may be accessed, which again justifies that an exemption be made to the general rule.
Therefore, the search of computers found within a premises requires prior court authorization. Investigators are, however, not required to demonstrate that there are grounds to believe that a computer will be found in the premises. In the absence of a specific authorization included in the search warrant, where the police discover computers during a search, they are justified to seize the devices if there are reasonable grounds to believe that they contain information relevant to the investigation or for the establishment of another offense. However, a separate search warrant must be obtained before the data may be accessed. The warrant can also provide for the reproduction and printing of the data, as is allowed under the Criminal Code and the Competition Act.
In any event, in any case, the need for express authorization does not allow the police to conduct a search indiscriminately. Only files and programs that are reasonably likely to contain information relevant for the establishment of offenses may be searched and copied.
In addition, the Supreme Court held that a search protocol is not always necessary at the stage of prior authorization, for such a procedure would be extremely complex and would create practical difficulties. However, an after the fact review of the search is always possible, during which the accused and prosecution may make submissions as to the lawfulness of the protocol used by the police.3 The Court noted that it will be primarily through such ex-post reviews that courts will be able to determine and clarify the rules regarding how the search and seizure of computers should be carried out.
Finally, although the specific facts of this case did not warrant that the conditions had to be determined in advance to conduct the search, the Supreme Court noted that under certain circumstances and at the court's discretion, a protocol determined before the search may be justified. For example, the Court noted that a protocol may be appropriate in the presence of "confidential intellectual property or potentially privileged information."
Impacts of the decision
In short, the Supreme Court confirmed the need for investigators to obtain specific permission from the court before accessing data found in a computer or cell phone. A protocol and specific conditions are generally not constitutionally required before the search. This does not grant a carte blanche to investigators; the search may in no case be unreasonably conducted or carried out as to affect data integrity.
In terms of economic crimes, where seized devices may contain confidential information such as trade secrets, a protocol established in advance may be justified. So far, the Competition Bureau has showed caution when obtaining search warrants. In general, the Bureau has requested specific permission to search computers found on a premises, and has described in detail how searches are to be conducted.
Computers seized by the Competition Bureau are scrutinized very thoroughly by experts in computer technology. However, search warrants obtained by the Bureau currently provide that the electronic evidence officer in charge of the search must ensure that irrelevant data which cannot be used to establish an offense may not be accessed by investigators or anyone else, in order to protect personal data or other confidential information.
The abandonment of such a strict search protocol could lead to challenges at trial. Evidence could be excluded, which could ultimately result in an acquittal in some cases. All resources spent for the investigation and efforts carried out for the prosecution would then have been made in vain. The Competition Bureau will need to exercise caution and determine whether it should continue to include detailed search protocols in its warrants, despite their heaviness and complexity.
1 2013 SCC 60.
2 Although no specific mention was made by the Supreme Court, the latter probably refers to "smart" phones which allow data input and functions comparable to those of computers, such as web browsing, emails and pictures.
3 AS opposed to the procedure for obtaining a search warrant, which is argued in the absence of the person concerned by the search.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2013 McMillan LLP