Canada: "The Digital And Internet Age Meets The Law Of Search And Seizure" As The SCC Clarifies The Law On Search Warrants And Computers In R V. Vu

he Supreme Court of Canada recently released a unanimous judgment in R. v. Vu, 2013 SCC 60, in which it ruled that authorities must obtain specific authorization in a search warrant in order to search computers located on premises covered by the warrant. In this case, the police collected incriminating evidence against Mr. Thanh Long Vu from two laptops and a cellular phone on the basis of a search warrant that did not specify that the police had authority to search these devices.

Once the police obtain a warrant to search a location for evidence, it has long been settled law that they can look for that evidence in receptacles like cupboards or cabinets, where it might reasonably be located. Justice Cromwell, writing for the Court, asked whether Canada's law of search and seizure should treat a computer as if it were a receptacle and answered:

In my view, it should not. Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach. One cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers found within that place. This can only be assured if, as is my view, the computer search requires specific pre-authorization.

Since the warrant did not contain specific pre-authorization to search computers, the search of the laptops and cellular phone violated the accused's s. 8 Charter right. Nevertheless, the Court ruled that the evidence should not be excluded under s. 24 (2) of the Charter on a balancing of the relevant factors. The Court consequently dismissed the appeal and upheld the British Court of Appeal's decision setting aside the accused's acquittals from trial (where the evidence at issue had been excluded) and directing a new trial for Mr. Vu.

Background and Decisions Below

This case arose out of a RCMP investigation into a residence that appeared to be stealing electricity. The presiding Justice of the Peace accepted an Information To Obtain ("ITO") indicating that the police intended to attend seize any evidence supporting a theft of electricity charge, any written or computer generated notes related to theft of electricity, and any records and documentation relating to occupancy and control over the property. The police consequently obtained a search warrant authorizing them to seize a number of items including documentation identifying ownership and occupancy of the property. Upon searching the premises, the police found evidence of a marijuana growing operation, as well as two laptops and a cellular phone which yielded evidence linking the residence to the accused, Mr. Vu. The police obtained a detention order to retain the computers and cellular phone.

Mr. Vu was arrested and charged with production and possession of marijuana as well as theft of electricity.

At Mr. Vu's trial, the presiding judge ruled that the ITO was deficient in that it did not provide the authorizing justice reasonable grounds to believe that documents relating to ownership or occupation of the residence would be found in a search of the residence. The trial judge also found that the search warrant did not specifically authorize the search of the computers or laptop, and authorization to search such items could not be implicitly granted. The evidence from these devices was excluded at trial, and Mr. Vu was acquitted of his marijuana related charges. The Crown called no evidence respecting the theft of electricity charge and it was dismissed.

The British Columbia Court of Appeal allowed the Crown's appeal from the acquittals and ordered a new trial. It held that the trial judge had erred in her ruling that the ITO was deficient, and found that the laptops and cellular phone were akin to repositories with documentation identifying ownership and/or occupancy of the property, such that they could be searched pursuant to the warrant. The Court of Appeal ruled that electronic devices should not be treated differently from other receptacles such as cupboards or filing cabinets.

Decision

The Supreme Court decided three main issues on appeal:

  1. Did the search warrant properly permit a search for documentation identifying the owners and/or occupants of the residence?
  2. Did the warrant authorize the search of the computers and cellular phone?
  3. If the search was unlawful, should the evidence obtained be excluded?

Issue 1: Did the warrant permit a search for ownership/occupancy documentation?

On the first issue, the Supreme Court agreed with the Court of Appeal that the trial judge erred by re-weighing the grounds for the search from the ITO and substituting her view of the sufficiency of the evidence for that of the issuing Justice of the Peace. Justice Cromwell held that the authorizing justice could have reasonably drawn the inference that documents evidencing ownership or occupation of the residence would be found at the residence. The Court's position on this issue is encapsulated by Justice Cromwell's rhetorical question: "Where else would one expect to find such documents if not in the residence itself?"

Issue 2: Did the warrant authorize the search of the computers and phone?

Although Justice Cromwell agreed with the general proposition that a warrant authorizing a search of a location for evidence confers the authority to conduct a reasonable examination of anything at that location within which the evidence might be found, His Honour felt that a more nuanced analysis was needed to account for the unique nature of computers. Notably, His Honour ruled that he did "not distinguish, for the purposes of prior authorization, the computers from the cellular telephone in issue here." This is a significant recognition by the Court of the nature of present day cell phones, which "have capacities that are ... equivalent to those of computers."

In explaining why computers are different from other "receptacles", Justice Cromwell stated:

24 The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view.

The decision proceeds at length to describe the vast amounts of information computers store, and the ways in which computers create information without users' knowledge and retain information that users try to erase. The Court also pointed out that the physical presence of a receptacle, such as a cabinet, distinguishes it from electronic devices connected to the internet. While documents accessible by virtue of being inside a cabinet are always at the same location as the cabinet that holds them, if a computer is connected to the Internet it becomes a portal to almost infinite information shared between different users and stored on various servers around the world. The searches of the computer and phone were therefore found to be unlawful and breach s. 8 of the Charter.

Given that the privacy interests in computers were found to be markedly different from the privacy interests in other receptacles, the Court refused to accept that a Justice who has considered the privacy interests arising from a search of a location can automatically be assumed to have considered the interests at issue with a search of a computer. Justice Cromwell rejected the Crown's position that the reasonableness of a computer search can be assessed after-the-fact, since prior authorization is needed to ensure that the state's interest in conducting the search justifies the intrusion on the individual's privacy. As Justice Cromwell stated, "[o]nly a specific 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..." However, the Court did provide that if the police locate a computer during a search and lack specific authorization, they can seize the computer and seek a separate warrant to search it.

The intervener B.C. Civil Liberties Association asked the Court to develop search protocols under which computer searches could be carried out, so that authorizing justices could properly govern the manner in which police carry out searches of computers and phones. The Court declined to impose any blanket search protocols for two reasons: Firstly, the manner of searches are generally reviewed after the fact, and an ex post review of the reasonableness of a computer search in a particular case can signal to the police how they should limit their searches in future cases (though the Court did note that parliamentary action could tackle these issues more comprehensively). Secondly, the Court was concerned with the practical difficulty that a blanket search protocol could create at the authorization stage, since the authorizing justice cannot predict the kinds of investigative techniques that police can and should employ in a given search. In support of his conclusion, Justice Cromwell pointed to U.S. cases where courts have struggled with predicting where relevant files might be found on a computer ahead of time.

Issue 3: Exclusion of Evidence

Having found a breach of the accused's s.8 rights, the Court engaged in a s.24 (2) analysis to determine whether the evidence from the computers and phone should be excluded. Justice Cromwell assessed whether the admission of the evidence would bring the administration of justice into disrepute having regard to the "Grant factors", namely (i) the seriousness of the Charter infringing conduct, (ii) the impact of the breach on the Charter-protected interests of the accused, and (iii) society's interest in the adjudication of the case on its merits.

Justice Cromwell held that the Charter-infringing conduct was not serious, given that the ITO referred to the officers' intention to search for computer-generated documents, the state of the law regarding searching computers was uncertain until this case, and the otherwise reasonable manner in which the search occurred. Regarding the impact on the accused, the Court acknowledged that the serious privacy interests that are at stake in computer searches and that the search conducted in this case was intrusive. However, the Court felt that the impact was attenuated by the modest objectives of the search as defined by the warrant, and because the police did not gain access to more information than was appropriate. On the third Grant factor, the Court held that the evidence was reliable, important to the Crown's case, and that there was a "clear societal interest in adjudicating on their merits charges of production and possession of marijuana for the purpose of trafficking." Based on this analysis, the Court ruled that the evidence should not be excluded.

Potential Significance

This case is an important development that affects criminal, Charter, and privacy law, and one which corporate entities and members of the business community will want to be aware of for the purpose of risk management and managing potential regulatory or criminal liability.

Firstly, the law is now clear that search warrants must specify that the police are authorized to search computers and phones. Consequently, if companies or individuals do find themselves subject to a search by the authorities, they will want to scrutinize the search warrant and ITO very carefully. For instance, if in the course of an investigation for criminal breaches of the Competition Act, authorities seize a number of laptops, hard drives, tablets, and phones, defence counsel should ensure that these items are listed in the search warrant, and that the ITO specifies reasonable grounds to believe that evidence of an offence would be found on these devices. Although in this particular case the evidence was admitted despite a Charter breach, it was partially because the law was uncertain in this area. In future instances, if the police do not take care to swear a proper ITO or obtain a sufficiently specific search warrant before searching a computer, the Court may be less inclined to admit evidence obtained from the search.

Secondly, companies should also be aware that even if the police do not obtain specific authorization to search computers, they may seize them and then seek subsequent authorization to search them. This decision also stated that justices have discretion to impose conditions on the way devices are searched depending on the particular facts of the case. In the future, justices may adopt Cromwell J.'s suggestion of a "two-stage" approach for computers, where the seizure of a computer is initially authorized, and the police then return for an additional authorization to search the sized device. There may consequently be a lag in between the seizure of computers and the authorities' attempt to search them – this may be an opportunity for defence counsel to make submissions to a justice of the peace as to why certain devices should not be searched, or why certain restrictions should be in place to account for issues such as privileged documents.

Thirdly, this case is also important in terms of the questions it leaves unanswered about the search and seizure of technological devices. Although the case tells us that devices such as phones and computers must be specifically listed as items the police are authorized to search, it does not elaborate on the degree of specificity which will be required in ITOs and search warrants to support such a search. Justice Cromwell did rule that it is not necessary for the police to present reasonable grounds that a computer will be found in order to obtain a warrant that authorizes the search of a computer if it is found on a premises. Does this mean, for instance, that a search warrant that simply said the police could seize any and all phones and computers they may find in a six story office because they may furnish evidence of a crime would survive judicial scrutiny? Or must the warrant be more specific as to which types of computers and phones can be seized? These questions becomes especially interesting in the context of white collar investigations, where authorities may want to seize devices that belong to the company, in addition to employees' personal devices found on site, such as their personal tablets or phones.

Fourthly, the Court notably declined to develop any search protocol or guidelines for justices who are issuing search warrants for computers because of how this could complicate the search warrant authorization process. Justice Cromwell opined that "as has occurred in other areas of search law, after-the-fact review may lead courts to set out specific rules according to which searches must be conducted." This could consequently open the door to a number of future challenges to police seizures and searches of computers, where even if the general search and seizure was authorized, the manner in which the search is conducted may be deemed unreasonable. The significant privacy interests engaged by computers, as recognized by the Court, would potentially lend weight to these challenges. It is conceivable that many computers and phones would contain privileged information, or have data stored in different ways under various applications – further jurisprudence may be required to ensure that the manner in which these devices are searched for evidence of a crime is reasonable.

My colleague has also written on the R. v. Vu case, which can be found here.

Case Information

R v. Vu, 2013 SCC 60

Court Docket: 34687

Date of Decision: November 7, 2013

To view original article, please click here.

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