A Computer is Not A Cupboard: The SCC Grapples With Computer Searches

The Supreme Court of Canada recently formulated new rules for computer searches by police, acknowledging that the traditional legal framework was inadequate to protect the privacy rights of individuals in their digital life. In R. v. Vu, 2013 SCC 60, the Court said that a police search of a computer now requires prior authorization in the form of a specific warrant.

Facts

The police had been tipped about electricity theft at a residence suspected of being used to cultivate marijuana. They obtained a warrant to search the residence for evidence of such theft, including information identifying the owners and/or occupants of the residence. The information to obtain the warrant indicated the police intended to search for "computer-generated notes" but did not specifically refer to computers or authorize a search of computers.

In their search, the police found marijuana, two computers and a cellphone; a search of the computers provided evidence which identified Mr. Vu as the occupant. At trial, Mr. Vu claimed that a search of the computers and cell phone violated his section 8 Charter rights to be free from unreasonable search and seizure.

The trial judge found that the police were not authorized to search the computers or the cell phone because, inter alia, those devices were not specifically mentioned in the warrant. The acquittal was set aside by the BC Court of Appeal, which concluded that the warrant authorized a search for "documents", a term that included electronic documents which might be found on a computer. The Supreme Court, however, overturned the appeal court, and in the process, declared that a computer found in a location for which a search warrant has been issued can only be searched if the warrant specifically authorizes that search.

The Law

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 located in that place, such as cupboards and filing cabinets.

The Court noted, however, that computers are fundamentally different from other receptacles. They can store immense amounts of information, some of which will touch the biographical core of personal information. Computers also do two things that have no analogue in the physical world: they automatically generate information (often unbeknownst to the user) and they retain files and data even after users think that they have destroyed them...