The SCC has ruled that a computer search requires a specific pre-authorization in a search warrant before it can be searched

R. v. Vu 2013 SCC 60 – back in September of 2007, police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners or occupants of the residence. In the course of their search of the residence, police found marihuana and they also discovered two computers and a cellular telephone. A search of these devices led to evidence that Vu was the occupant of the residence. Vu was charged with production of marihuana, possession of marihuana for the purpose of trafficking, and theft of electricity.

As some background, a Justice of the Peace in British Columbia issued a search warrant authorizing seizure of “[a]ll equipment and parts utilized to divert electricity, including meter bases, electrical meters, electrical wires, hydro bypass connections [as well as] [d]ocumentation identifying ownership and/or occupancy of the property …” relevant to an investigation of the offence. A cursory search led to the discovery of marihuana growing in the basement. The officers also found two computers and a cellular telephone in the living room. An officer searched the first computer, which was connected to a security system that monitored the front of the residence by means of a video camera. Examining the footage stored in the computer, he located images of a black Honda CRV in the driveway of the residence. The police database confirmed that the accused was the registered owner of a 2007 black Honda CRV, that he had a B.C. driver’s licence, and that he had a registered address in B.C.. The officer then searched the second computer which was running an online chat program called MSN. The last user was still signed in and by activating the MSN icon and bringing up the open file, the officer was able to see that the user was signed in with the email address A Facebook account in the name of Raymond Vu was also open. The officer searched the computer’s database for photographs by using the “Start” menu and the “Search” function which permits a search for any photographs or video files. He also searched for any relevant documents on MS Dos or WordPerfect. The search turned up the resume of Raymond Vu, of which a second officer took a photograph. The first officer did not take many notes during his search and could not recall the steps he took in the process.  The officer also searched the Sony Ericsson model cellular telephone found in the living room. Stored in the phone’s database, he discovered a photo of an Asian male, whom the officer identified as the accused.

The SCC made an interesting connection in this decision. Although historically cellular phones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers. The trial judge found that the cell phone in this case, for example, had a “memory capacity akin to a computer”. In these reasons, then, when the SCC referred to “computers”, the SCC included within that term the cellular telephone.

The ITO, according to the SCC, set out facts sufficient to allow the authorizing justice to reasonably draw the inference that there were reasonable grounds to believe that documents evidencing ownership or occupation would be found in the residence and thereby concluded that the authorizing justice could lawfully issue the warrant to search for documents evidencing ownership or occupation of the property. The search for such material did not breach the accused’s rights under s. 8 of the Charter.

The SCC said the traditional legal framework holds that once police obtain a warrant to search a place for certain things, they can look for those things anywhere in the place where they might reasonably be; the police do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. The numerous and striking differences between computers and traditional “receptacles” called for distinctive treatment under s. 8 of the Charter. Computers differed in important ways from the receptacles governed by the traditional framework and computer searches gave rise to particular privacy concerns that were not sufficiently addressed by that approach. One could not assume, said the SCC, that a justice who authorized the search of a place had taken into account the privacy interests that might be compromised by the search of any computers found within that place. This could only be assured if the computer search required specific pre-authorization. In practical terms, the requirement of specific, prior authorization meant that if police intended to search computers found within a place with respect to which they sought a warrant, they had to satisfy the authorizing justice that they had reasonable grounds to believe that any computers they discovered would contain the things they were looking for.  In the case at hand, the SCC found the searches of those devices were not authorized by law and violated Vu’s right to be free of unreasonable search and seizure under s. 8 of the Charter, but given the uncertainty in the law at the time and the otherwise reasonable manner in which the search was carried out, the violation was not serious. Further, there was a clear societal interest in adjudicating on their merits charges of production and possession of marihuana for the purpose of trafficking. Balancing those factors, the evidence was not excluded in this case.

Of course with this decision, the SCC has made it clear that moving forward, 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 (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), 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. According to the SCC, this case should serve to clarify the law on this point and prevent this kind of confusion in the future.

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