Thursday, December 5, 2013

Supreme Court Finds That Unlawfully Obtained Evidence Still Admissible

In a decision, delivered by Justice Thomas Cromwell of the Supreme Court of Canada, the court found that even though a police search of an accused's personal computers was unlawful, the evidence obtained as a result of the search should not be excluded, because the "violation was not serious" and because the police believed on reasonable grounds that the computer search was authorized by a warrant.  
 
In this case ( R v. Vu, 2013 SCC 60 ) the police charged Vu with production of marijuana, possession of marijuana for the purpose of trafficking and theft of electricity.  The police obtained a search warrant authorizing the search of a residence for evidence of theft of electricity.  The warrant allowed the police to search for documentation identifying the owners and/or occupants of the residence.   Even though the Information to Obtain a Search Warrant ("ITO") indicated that the police intended to search for, among other things, "computer generated notes", the warrant did not specifically refer to computers or authorize the search of computers.  In the course of their search of the residence, police found marijuana.  They also found two computers and a cellular telephone.  A search of these devices led to evidence that Vu was the occupant of the residence. 
 
At trial, Vu claimed that these searches had violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms ("Charter") - which gives everyone the right to be free from unreasonable searches and seizures - and asked the judge to exclude the evidence.  The judge concluded that the ITO did not establish reasonable grounds to believe that documentation identifying the owners and or occupants would be found in the residence and so the warrant could not authorize the search for such documents.  In addition, the trial judge found that police were not authorized to search the personal computers and cellular telephone because those devices were not specifically mentioned in the warrant.  She excluded most of the evidence obtained as a result of those searches and acquitted Vu of the drug charges.  
 
The Crown appealed and the British Columbia Court of  Appeal set aside the acquittal and ordered a new trial.  In the Court of Appeal's view, the warrant had properly authorized the searches and there had been no breach of Vu's s. 8 Charter rights.  Vu further appealed to the Supreme Court of Canada.  He raised three issues:
 
1.    Did the search warrant properly permit a search for documentation identifying the owners and/or occupants?
 
With respect to this issue, Justice Cromwell agreed with the Court of Appeal that the ITO had established reasonable grounds to believe that relevant documents would be found in the residence.  It followed that the warrant properly authorized the search for that sort of material.  The Court of  Appeal found that the facts provided in the ITO were sufficient to support a reasonable inference on the part of the issuing justice that documentation evidence of ownership or occupancy would be found in the residence.  The ITO referred to the premises to be searched as a residence and as a "two story house".  It also indicated Vu owned the property and that electricity was being consumed there.  In Justice Cromwell's view it was a reasonable inference that a residence would be the place to look for documents evidencing ownership or occupation.  "Where else would one expect to find such documents if not in the residence itself."
 
2.    Did the warrant authorize the search of the computers and cellular phone?
 
Justice Cromwell held that s. 8 of the Charter seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement.  The police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant.  The prior authorization ensures that before a search is conducted, a judicial officer is satisfied that the public interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance the goals of law enforcement.  An authorized search must be conducted in a reasonable manner.  This ensures that the search is no more intrusive than is reasonably necessary to achieve its objections.  Justice Cromwell reviewed the facts found by the trial judge and then noted that the general principle is that authorization to search a place includes authorization to search places and receptacles within that place.  However, this assumption is not justified in relation to computers because computers are not like other receptacles that may be found in a place of search.  He held that, "It is difficult to image a more intrusive invasion of privacy than the search of a personal or home computer.  Computers compromise the ability of the users to control the information that is available about them in two ways.  They create information without the users knowledge and they retain information that the users have tried to erase.  These features make computers fundamentally different from the receptacles of search and seizure lawyers have had to respond to in the past."
 
Justice Cromwell found that the traditional rule concerning the search of "receptacles" found within a search of a place simply cannot apply to computer searches and that prior authorization is required.  This 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.  He added that the police may seize a computer if they come across one in the course of the search and the warrant does not specifically authorize its search and do what is necessary to ensure the integrity of the data and obtain a separate warrant at a later date.
 
3.    Should the evidence found on the computer be excluded?
 
Justice Cromwell found that in this case the search warrant did not authorize the search of computers found in Vu's residence.  However, he also found that the trial judge was wrong in concluding that the ITO contained no facts supporting a warrant to search for documents evidencing ownership or occupation of the residence.  Therefore he had to undertake his own analysis in view of that erroneous finding.  He found that the charter-infringing conduct by the police was "not serious", after all the ITO did refer to intention of the police to search for computer-generated documents and the state of the law with respect to the search of a computer found inside a premises was uncertain when the police carried out their investigation.  One of the police officers admitted in his testimony at trial that he intentionally did not take notes during the search of the computer so he would not have to testify about the details.  Justice Cromwell held that this was clearly improper and could not be condoned.  However, given the uncertainty in the law at the time, and the otherwise reasonable manner in which the search was carried out, Justice Cromwell concluded that the violation was not serious.  In addition, the record did not indicate that the police had gained access to any more information than was appropriate.  And the relevant question was, whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  He was of the view that, on balance, the evidence should not be excluded.  The police believed on reasonable grounds that the search of the computer was authorized by the warrant.  The search did not step outside the purposes for which the warrant had been issued and it did not include forensic examination.  The evidence retained was reliable, real evidence which was important to the adjudication of the charges on their merits.  
 
Accordingly, Justice Cromwell and a majority of the court dismissed Vu's appeal and upheld the order of the Court of Appeal setting aside the acquittals and directing a new trial.  
 
Regards,
 
Blair