Supreme Court of Canada Rules That Specific, Prior Judicial Authorization Is Required To Search Computers And Cellular Phones

In R v Vu, 2013 SCC 60, the Supreme Court of Canada (Court) declared that a warrant authorizing a search of a place does not include computers or cellular phones located in that place. The Court’s ruling departs from the principle that once police have obtained a warrant to search a place for certain things, they do not require specific, prior authorization to search in receptacles of that place, such as cupboards and filing cabinets. Mr Vu was charged with possession of marijuana for the purpose of trafficking and theft of electricity. The police obtained a warrant authorizing the search of a residence for documentation identifying the occupants. In obtaining the warrant, the police stated they intended to identify the occupant of the residence by finding, among other things, “computer generated notes”. The police searched the residence and found marijuana growing in the basement, and three devices - two computers and a cellular telephone. The police searched the devices, and evidence obtained from the devices showed that Vu was the occupant. At trial, Vu asked the judge to exclude the evidence on the basis the search violated his right to be free of unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms (Charter). The judge excluded the evidence and went on to acquit on the basis there were no reasonable grounds that the documentation sought was located in the residence, and any authority to search the residence did not extend to the devices. On appeal, the British Columbia Court of Appeal set aside the acquittal and ordered a new trial on the basis that the warrant had properly authorized the searches and did not violate Vu’s section 8 Charter rights. On further appeal, the appeal was dismissed. The Court ruled that the search breached Vu’s section 8 Charter rights on the basis the warrant did not specifically authorize a search of the devices. However, the Court went on to allow the evidence on the basis that the societal interest in prosecuting illicit drug production and trafficking outweighed the adverse impact of the search on the accused’s privacy interests. In its analysis, the Court noted that the evidence was highly probative and necessary to establish knowledge of and control over the marijuana growing in the basement of the residence and that the search was not more intrusive than necessary to achieve its objectives. In the reasons for judgment, Justice Cromwell, writing for the Court, identified that the nature of the privacy interests engaged by searches of computers and cellular phones demand increased protection:

The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer. Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase and which may not be, in any meaningful sense, located in the place of search.

The Court’s ruling appears to be consistent with modern, everyday use of information and heightened expectations of privacy in respect of computers and cellular phones. However, it remains to be seen how Canadian courts will strike a balance between individual privacy rights and the public interest in future cases involving investigations in the quasi-criminal or non-criminal context. Summary by: Darren Hall