Privacy, Computers & Search Warrants

The Supreme Court of Canada issued another privacy-related decision last week. Not only is it a significant refinement of search and seizure law it is also, with apologies to Pink Floyd, another “brick in the wall” with respect to building privacy rights in the context of computing devices.

In one sense R v. Vu  is “just another” drug offence decision involving electricity theft, grow house operations and marijuana production. There’s little in the way of sordid facts or egregious police conduct. The interesting “bit” revolves around the ITO that served as the basis for the issuance of the search warrant in this case.

To succinctly summarize Canadian search law, section 8 of the Charter of Rights and Freedoms provides to Canadians a right to be free of unreasonable searches and seizures. In addition, the law authorizing such a search must be reasonable as well. To meet these two requirements, those seeking to conduct a search (usually police officers in a criminal investigation) have to obtain judicial authorization for the search before they conduct it (i.e. a search warrant). Any authorized search must be conducted in a reasonable manner. The intent of this approach is to limit unjustified intrusions into the privacy of Canadians and, should they be necessary, limit any potential abuse of that authorization to search.

Within this framework, a warrant to search, for example, a house, allows police to look in “receptacles” without a specific, prior authorization. A “receptacle” would include filing cabinets. One can easily make the leap from files in a cabinet to files in a computer and in this case Mr. Justice Cromwell succinctly puts the question: “should our law of search and seizure treat a computer as if it were a filing cabinet or a cupboard?”

The answer is “no”. In distinguishing computing devices from traditional receptacles, the court continues to emphasize privacy interests:

“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.” 

Also of interest is the fact that the court indicated that any authorized search of a computer cannot be indiscriminate. Those conducting the search are:

“…bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.”

In terms of scope, Mr. Justice Cromwell noted:

“I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular phone is searched incident to arrest (learn more from here) or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized. As noted earlier, it is not necessary that the police present reasonable grounds that a computer will be found in order to obtain a warrant that includes authorization to search a computer found in the premises.”

In terms of process, if computing devices are discovered during a search, they can be seized. However, police have to obtain a separate search warrant before the contents of such devices can be accessed, copied and printed.

The practical effect of this decision may be limited but it nonetheless further cements an important concept in Canadian law. Computing devices — I use that term deliberately to be as “form factor” neutral as possible — have been recognized as gateways to information that we consider intimate and personal and where we have a high expectation of privacy. Some may consider this an obscure corner of privacy law but privacy advocates should be celebrating this decision.