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
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
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
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.
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.
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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