Nov 5, 2014

R v Vu: The SCC Rules that Computers Require Distinctive Treatment under Section 8 of the Charter

R. v. Vu, 2013 SCC 60 (CanLII)

In R v Vu, [2013] 3 SCR 657 [Vu], a landmark decision regarding section 8 of the Canadian Charter of Rights and Freedoms [Charter], the Supreme Court of Canada unanimously ruled that specific prior authorization is needed to search individuals’ computers and similar devices.

Facts and Judicial History

Following suspicions that the appellant Thanh Long Vu was stealing electricity, Constable Carter of the RCMP filed an Information to Obtain a Search Warrant (ITO) for the purpose of locating evidence to support such charges. The warrant indicated that officers wanted to located evidence regarding the diversion of electricity, the identity of the owner of the property and "computer generated notes," but it did not include specific information about the search of computers.

Upon entering the premises, RCMP officers discovered a marijuana grow operation in the basement and notably, two computers and a cell phone. The first computer was used for the purpose of maintaining a video security system and the evidence obtained included images of the appellant’s vehicle. The second computer was for personal use and officers were able to discern the appellant’s identity from a search of the computer’s open applications. Further identity evidence was found after a search of the cell phone.

The search of these electronic devices is at the centre of this appeal. At trial, the judge concluded that the ITO did not establish reasonable grounds for the search of documents relating to identity. Further, she found that the appellant’s s. 8 Charter rights were breached as the search of the computers and cell phones were not specifically authorized by the warrant. The trial judge excluded most of the evidence collected under s. 24(2) of the Charter. In this appeal, the Court engages with three issues. I will discuss Justice Cromwell’s ruling on each in turn.

Issue 1: The Search Warrant

Justice Cromwell agrees with the British Columbia Court of Appeal and their ruling that the ITO established reasonable grounds that relevant evidence could be found. In essence, the Court rules that the trial judge erroneously re-weighted the evidence in support of the ITO and "substituted her view of the sufficiently of the evidence for that issuing justice." The ITO stated that a "residence" and more specifically a "two (2) story house" was to be searched and that the appellant was the owner of the property. As such, it was reasonable that the residence could contain information regarding the ownership of the residence. As such, the warrant is upheld and no breach of the appellant’s s. 8 rights is found in regards to this issue.

Issue 2: Computers and Section 8 of the Charter

The key issue in this appeal is whether the warrant authorized the search of the computers and the cell phone, and whether the current search warrant regime should evolve to carve out an exception for such devices. In short, the appellant argued that in order to search his computer and cell phone, specific prior authorization was required. In contrast, the Crown argued that there are safeguards that ensure that such searches are reasonable after they are completed. Justice Cromwell rules in favour of the appellants and sets out a new approach for computers and search warrants.

Before exploring the Court’s ruling, it is important to look at the current approach to s. 8. The purpose of this provision is to "strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement." To legally perform a search of a premise, the police must first obtain "judicial authorization before they conduct it." Additionally, the search must be "conducted in a reasonable manner" (emphasis added). This framework attempts to ensure that frivolous and intrusive searches are prevented, and that searches that are authorized are nonetheless conducted properly.

In his decision, Justice Cromwell adopts this general proposition proffered by the Court of Appeal: "[a] warrant authorizing a search of a specific location for specific things confers on those executing that warrant the authority to conduct a reasonable examination of anything at that location within which the specified things might be found." However, he rejects this approach to computers, as "the privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets." In these reasons, Justice Cromwell makes no distinction between such devices and refers to both as "computers" alone. He endorses the trial judge’s finding that cell phones have a "memory capacity akin to a computer" to justify eliminating the distinction.

In carving out a new approach to the search of computers, the Court cites several distinguishing factors of computers. First, such devices store such a wealth of data and much of it touches the "biographical core of personal information." Moreover, computers are able to generate information without the user’s knowledge and they can retain data despite a user’s attempt to destroy or delete items. Finally, when connected to the Internet, a computer becomes accessible to virtually an "infinite amount of information." As such, the rationale of a search warrant limiting a search to a certain location falls apart.

All in all, the Court finds that prior judicial authorization is needed for the search of computers. Justice Cromwell rejects the notion that after the fact reviews of computer searches are sufficient to satisfy s. 8 of the Charter and he does not accept the proposition that search warrants for computers must require specific search instructions and protocols.

Issue 3: The Exclusion of Evidence and the Grant Test

Having found a s. 8 Charter violation, Justice Cromwell considers the exclusion of the evidence under s. 24(2) of the Charter. While noting that deference is usually shown to the trial judge and his/her determination on this issue, he states that he cannot show deference in this case as the trial judge’s finding that the evidence should be excluded was heavily based on her erroneous finding that the ITO did not support a proper warrant.

After considering the three prongs of the test outlined in R v Grant, [2009] 2 SCR 353 (the seriousness of the rights infringement, the impact of the Charter infringement on the accused and societal interests), Justice Cromwell rules that the evidence should not be excluded. He finds that the breach was not egregious, noting that while the search of the computers was not specifically authorized, the police had reasonable grounds to do so. Additionally, while the search of the devices was quite intrusive, no superfluous information was collected. Finally, the evidence collected was reliable and key to the resolution of the charges. Given his finding on the s. 24(2) Charter issue, Justice Cromwell dismisses the appellant’s appeal and affirms the Court of Appeal’s order for a new trial.

The Scope of these Reasons, Implications, and R v Fearon

As indicated by Justice Cromwell, these reasons do not "disturb the law that applies when a computer or cellular phone is searched incident to arrest or where exigent circumstances justify a warrantless search." This in my view, is a concerted effort to signal that the Court will answer this specific legal issue when R v Fearon, 2013 ONCA 106 is heard in 2014. This case dealing with a robbery and the search of a cellphone incidental to arrest is discussed in detail here.

The Vu decision provides clarity on the law regarding s. 8 and computers and similar devices, and develops the law of reasonable search and seizure in a way that accords with the use of technology in 2013. While individuals may have a dwelling that they retire to at the end of each day, Canadians are very keen to the fact that their computers and other electronic devices hold a vast array of information. Further, these devices hold sensitive pieces of data that can be of a very personal nature. In my view, the Supreme Court has carefully developed the law in a way that recognizes this reality.