New & Notable: Old Mother Hubbard & the Police can go to the Cupboard but not the Computer

Police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation which would identify the owners or occupants of the residence. The Information to Obtain a Search Warrant (“ITO”) stated that police would be looking for, among other things, “computer generated notes” but it did not specifically reference computers nor did the warrant authorize the search of computers. While executing the search, police found marijuana, two computers and a cell phone. Police examined the computers and cell phone and found evidence that Thanh Long Vu was the occupant of the residence. He was charged with marijuana production, possession and trafficking as well as theft of electricity. Vu successfully argued at trial that his s. 8 Charter rights were violated and that the evidence should be excluded. He was acquitted. The British Columbia Court of Appeal found that there had been no s. 8 breach and overturned the acquittal. The Supreme Court of Canada agreed with the trial judge in her finding that there was a s. 8 breach when the police searched the computers and the cell phone but found that the evidence should not have been excluded pursuant to s. 24(2) of the Charter. The appeal was therefore dismissed and the Court of Appealʼs order for a new trial stands: 2013 SCC 60.

Issue #1: Whether the warrant authorizing a search for ownership or occupancy documentation was properly issued

Justice Cromwell, writing for a unanimous Court, gave relatively short shrift to the argument accepted by the trial judge that because the officer who swore the ITO didnʼt specifically state in the ITO that he had reasonable grounds to believe that documents evidencing ownership or occupancy would be found within the house, the ITO could not support a search warrant for such documentation. He found that the issuing justice was entitled to draw an inference that such reasonable grounds existed and that the informant on the ITO did not have to state the obvious. Accordingly, the warrant to search for such documentation was properly issued and the search for it did not violate s. 8 of the Charter.

Issue #2: Whether the warrant authorized the police to search the computers and cell phone for documentation relating to ownership or occupancy

In finding that specific prior authorization to search the computers and cell phone was required, the Supreme Court rejected the argument advanced by the Crown that searching a computer was akin to a search of a filing cabinet or a cupboard, for which specific authorization is not required. Justice Cromwell noted:

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 Court also makes it clear that for the purposes of this decision, no distinction is to be made between cellular phones and computers.

Justice Cromwell provided clear guidance as to the proper approach to be taken by police in seeking and executing search warrants as follows:

Specific prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, 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. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. ...

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.

It is important to note that Justice Cromwell goes on to make it clear that the scope of this decision is restricted to warranted searches and does not apply to searches incident to arrest or in exigent circumstances.

Issue #3 - The application of s. 24(2) of the Charter

The Court concludes, when considering the first branch of the Grant analysis, that the Charter infringing state conduct was not serious. This conclusion is based largely on the fact that although the warrant did not expressly authorize a search of the computers, the police had reasonable grounds to seek authorization for such a search. In addition, the informant indicated an intention to look for “computer generated” documentation. Lastly, the state of the law was unclear at the time of the search.

It is however, important to note that Justice Cromwell comments on two “somewhat disquieting” aspects relating to the search. The first was that the officer who searched the computer testified that he intentionally did not take notes during the search so that he could avoid testifying about it. The second is that the computer was searched after the detention order had expired. Justice Cromwell stresses the importance of notes in creating a clear record of what the police searched and found.

In considering the second branch of the Grant analysis, the Court agrees with the trial judgeʼs finding that the privacy interests at stake in computer searches of “of the highest order.” On the other hand, they considered that the police did not gain access to any more information than was appropriate and the computers were not forensically examined. Justice Cromwell concludes that “on balance, this factor favours exclusion, but not strongly so.”

On the third branch of the analysis, societyʼs interest in the adjudication of the case on its merits, the Court found that the evidence on the computer was real and reliable and was required to establish knowledge and control over the marijuana. Further, there is a clear societal interest in adjudicating serious drug charges.

The Courtʼs conclusions on the s. 24(2) issue are summarized as follows:

Balancing these factors, I am of the view that the evidence should not be excluded. The police believed on reasonable grounds that the search of the computer was authorized by the warrant. While every search of a personal or home computer is a significant invasion of privacy, the search here did not step outside the purposes for which the warrant had been issued and it did not include forensic examination. The evidence obtained was reliable, real evidence which was important to the adjudication of the charges on their merits.

In providing this clear and unanimous decision, the Supreme Court puts to rest an issue that has proven troublesome for police and courts to date.