During the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, when evidence of an unrelated criminal offence was discovered, a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence

R. v. K.Z. 2014 ABQB 235 – during the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, evidence of an unrelated criminal offence was discovered. The Crown took the position that a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence. see R. v. Vu, 2013 SCC 60, [2013] 3 SCR 657; R. v. Jones, 2011 ONCA 632, 278 CCC (3d) 157. That was not the issue; at issue was should it be a search warrant or a general warrant?

On September 14, 2012, the Edmonton Police Service began an attempted murder investigation. In the weeks following, the police obtained and executed three search warrants. A laptop computer and memory storage device were seized during the execution of the second warrant, and the suspect’s cell phone was seized during the execution of the third. During the forensic examination of the computer in the attempted murder investigation, an officer discovered a folder that contained a picture believed to be child pornography. This officer terminated his search of the folder and contacted a police officer assigned to the Northern Alberta Integrated Child Exploitation Unit, who advised the officer to seek a search warrant for the laptop, digital storage device and cell phone, in order to investigate the offences of accessing and possessing child pornography.

On June 17, 2013, the officer sought a general warrant to conduct “… a complete and thorough forensic examination of all data, images and video” on the seized laptop, digital storage device, and cell phone “… by using established procedures and software written specifically for the purpose of extricating information and data from computer systems and storage media” with respect to the offences of accessing and possessing child pornography. The general warrant was not granted by the reviewing Provincial Court Judge because a s. 487.01 general warrant was inappropriate (this can be authorized by a s. 487 warrant).

The Crown took the position that a second search warrant was not legally available to authorize the forensic examination of a computer already in the possession of the police by virtue of a first search warrant. In summary, the Crown argued:

When the police are already in lawful possession of a computer pursuant to a seizure in one of the above mentioned scenarios, they do not require authorization to search a place or to seize the computer already lawfully seized. Therefore, it is the position of the Applicant that a s. 487 Search Warrant is not available.

In the scenarios described above, the police only require authorization to analyze the data on the computer. They therefore require authorization to use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search. It is the position of the Applicant that a s. 487.01 General Warrant is the appropriate authorization for the analysis of the computer’s content.

The use of a s. 487 Search Warrant in either of the above scenarios, for the sole purpose of analyzing the data, is not only wrong in law, but leads to many practical difficulties. One of those difficulties is the initial question of whether a computer is a “thing”, a “place” or a “receptacle”.

The Crown submits that a computer is a “thing”; not a “place” or a “receptacle”.

The Honourable Justice E.A. Hughes J. said, according to the SCC in Vu:

1. An authorization to search a place gives to those executing the warrant authorization to search places and receptacles in that place: para 39.

2. Computers are not like other receptacles that may be found in a place during a search, and are, to a certain extent, a separate place [emphasis added]: paras 51, 54, 39.

3. Computers are different from other receptacles because:

a. A search of a computer is one of the most intrusive invasions of privacy: para 40.

b. A computer may store immense amounts of information so that the comparison between a computer and traditional storage receptacles is unrealistic: para 41.

c. Further, a computer contains information that is automatically generated, often unbeknownst to the user. “This kind of information has no analogue in the physical world in which other types of receptacles are found”: para 42.

d. In addition, a computer retains files and data even after users believe they have destroyed them. “Computers … compromise the ability of users to control the information that is available about them in two ways: they create information without the users’ knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past”: para 43.

4. Due to the “numerous and striking differences” between computers and traditional receptacles, a prior authorization is required for the search of a computer seized in a place: paras 45, 47.

5. If police locate a computer during a search and the warrant does not give them the prior authorization to search the computer, the police may seize the computer and then obtain a separate warrant to search the data on the computer: para 49.

6. A search warrant does not give the police “licence to scour indiscriminately”. Rather, police are obligated “to adhere to the rule that the manner of a search must be reasonable” in a search of a computer: para 61.

The Judge said it is clear from the authorities that a search warrant is usually the proper form of authorization for the seizure of a computer found within a place, aside from searches incident to arrest or where exigent circumstances justify a warrantless search, and a General Warrant can only be issued when no other form of warrant or order is sufficient to accomplish what is sought to be done. The Crown submitted “the idea of ‘searching’ for specific types of data as ‘things’ is not an accurate reflection of what a forensic technician does when analyzing the contents of a computer. What the examiner is actually doing is analyzing the data using a ‘procedure’ or ‘technique’.”

Justice E.A. Hughes J. said during the forensic examination of a computer seized by a search warrant issued in an attempted murder investigation, when evidence of an unrelated criminal offence was discovered, a second judicial authorization must be obtained to search the computer for evidence relating to the unrelated offence and it must be a search warrant, not a general warrant:

“I find a general warrant is not the proper authorization for a search on the facts before me. My analysis rests upon the characterization in Vu of a computer being treated “to a certain extent, as a separate place”: para 51. Thus, if evidence of a second offence is located during the search of the computer for the first offence, s. 487 of the Criminal Code provides for the search of a “place” if there are reasonable grounds to believe that the search will “afford evidence with respect to the commission of an offence”. This situation is no different than the example provided by the EPS, or the situation where during a search of a house, evidence of another offence is discovered which requires the police to hold the house and obtain a second search warrant before the search is conducted for evidence of the second offence.

This analysis does away with the Crown’s submission that a general warrant is the proper form of authorization because a search warrant will cause the police to “search their own premises” and seize the “thing” they already have lawfully seized. Rather, in the case of a second warrant to search a computer for evidence of other offences, the computer is the place to be searched because it is, in essence, the crime scene.”

The EPS made one additional submission: the issuing judge exceeded his jurisdiction in making the direction that “in the case of a s. 487 warrant, naming an officer is a statutory requirement.” The ABQB ruled that a s. 487 search warrant need not name a peace officer to whom it is directed.

“… [T]he naming requirement does not apply to a peace officer, but only to a person other than a peace officer who may be authorized to conduct a search. …”

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