The accused, Thanh Long Vu, was suspected of electricity theft. Police obtained a warrant to search his home, but made no mention in the Information to Obtain that computers might be seized and searched. In the course of the search, a marijuana grow operation was discovered, and evidence obtained from the search of a computer was used to connect Vu with allegations of marijuana production and electricity theft.
The issue before the Supreme Court of Canada in this case was whether a warrant to search a location automatically extends to computers found in that location, or whether specific judicial authorization is required in order for computers to be searched. Upon considering this question, the Supreme Court unanimously concluded that the privacy interest in computers is greater than the privacy interest in a filing cabinet or a cupboard. On this basis, specific judicial authorization is necessary in order for a computer to be searched:
“ The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view.”
The Court did not to go so far as to find that the manner of a computer search must be specifically authorized before the fact, but did note that the scope of search must be connected to the purpose of the warrant or else the search itself would not be “reasonable” within the meaning of Section 8:
“ By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.”
Despite the Court’s conclusion that specific pre-authorization was required for the search in question, it was also recognized that police believed in good faith that the warrant was sufficient, and did not step outside the purpose of the warrant in collecting evidence against the accused:
“ Balancing these factors, I am of the view that 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 and it did not include forensic examination. The evidence obtained was reliable, real evidence which was important to the adjudication of the charges on their merits.”
On this basis, it was determined that the manner of the search did not bring the administration of justice into disrepute and that the evidence should be admitted at a new trial.
Decided by the Supreme Court of Canada on November 7, 2013.
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