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
No comments:
Post a Comment