Thursday, November 7, 2013

R v Vu 2013 SCC 60 - significant Supreme Court search decision

                    The traditional legal framework holds that once police obtain a warrant to search a place for certain things, they do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets.  The question in this case is whether this framework is appropriate for computer searches. Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach. 

                    The first issue that arises in this case is whether the search warrant properly permitted a search for documents identifying the owners and/or occupants. Although the trial judge found that the ITO did not contain a statement by its author that there were reasonable grounds to believe that such documents would be found in the residence, the ITO set out facts sufficient to allow the authorizing justice to reasonably draw that inference.  The search for such material, therefore, did not breach the appellant's rights under s. 8 of the Charter.

                    The second issue is whether the warrant authorized the search of the computers and cellular phone.  Section 8 of theCharter — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement.  This balance is generally achieved in two main ways.  First, the police must obtain judicial authorization for a search before they conduct it, usually in the form of a search warrant.  Second, an authorized search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives.  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 numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter.  The animating assumption of the traditional rule  that if the search of a place is justified, so is the search of receptacles found within it  simply cannot apply with respect to computer searches.

                    In effect, the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place.  Prior authorization of searches is a cornerstone of our search and seizure law.  The purpose of the prior authorization process is to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.  Only a specific, prior authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.  This means 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.  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, 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.   In this case, the authorizing justice was not required to impose a search protocol in advance with conditions limiting the manner of the search.  While such conditions may be appropriate in some cases, they are not, as a general rule, constitutionally required.

                    Having found that the search here was unlawful, the final issue is whether the evidence obtained should be excluded.  Section 24(2) of the Charter requires that evidence obtained in a manner that infringes the rights of an accused under the Charterbe excluded from the trial if it is established that "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute".  Here, the ITO did refer to the intention of the officers to search for computer‑generated documents and considering that the state of the law with respect to computer searches was uncertain when police carried out their investigation and the otherwise reasonable manner in which the search was conducted, the violation was not serious.  Further, there was a clear societal interest in adjudicating on their merits charges of production and possession of marijuana for the purpose of trafficking.  Balancing these factors, 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. 

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