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Canada’s Supreme Court Returns to the Plain View Doctrine

  • March 15, 2023
  • Clayton Rice, K.C.

What does the law of search and seizure say the result should be when a warrant authorizes the search of a digital device for evidence of a specified crime but the police find evidence of another crime when the warrant is executed? What is the distinction between the seizure of an electronic device by the police and the seizure of a particular file on that device? The Supreme Court of Canada recently returned to the plain view doctrine in considering these questions in the context of a search warrant issued by a magistrate in Alexandria, Virginia, and jointly executed by American law enforcement and Canadian armed forces investigators in the United States.

1. Introduction

Between August 2015 and March 2017 Cpl. Colin McGregor was a member of the Canadian Armed Forces posted to the Canadian Defence Liaison Staff at the Canadian Embassy in Washington, D.C. Another member of the armed forces found two audio recording devices in her home. She believed they were put there by Cpl. McGregor. The Canadian Forces National Investigation Service (CFNIS) concluded there were reasonable grounds to believe Cpl. McGregor committed the offences of voyeurism and possession of a device for surreptitious interception of private communications. However, the Commanding Officer could not issue a search warrant under the National Defence Act for the search of Cpl. McGregor’s residence because it was not located on the property of the Canadian Armed Forces. The Canadian Embassy issued a diplomatic note to the U.S. Department of State waiving Cpl. McGregor’s diplomatic immunity under the Vienna Convention on Diplomatic Relations. The Alexandria Police Department (APD) then obtained the warrant to search Cpl. McGregor’s residence.

On February 16, 2017, the Alexandria police entered the residence and the CFNIS officers conducted the search. Two forensic investigators, one from the CFNIS and one from the APD, triaged most of the electronic devices found in the residence. They scanned the contents of the devices to determine which ones to seize. The warrant authorized the search of objects located in the residence, including electronic devices, as well as the analysis of seized items. During the triage process, the investigators discovered unexpected evidence of what they believed to be a sexual assault. The Alexandria police made a return before the Virginia magistrate and the devices were removed to Canada where warrants were obtained from the Court Martial for further analysis of their contents. Cpl. McGregor was charged with seven offences under s. 130 of the National Defence Act. He initiated a motion before the Court Martial for the exclusion of evidence obtained from the electronic devices under ss. 8 and 24(2) of the Charter of Rights.

2. Judicial History

On September 13, 2018, the military judge, Comd. J.B.M. Pelletier, held that the Charter did not have extraterritorial application and the exclusion motion was dismissed. In any event, the searches and seizures were found to be Charter compliant and the seizure of evidence of sexual assault fell within the plain view doctrine. (here) The challenged evidence obtained during the triage included “a file containing video images of what could constitute sexual assault […] depicting a male filming himself while sexually touching a woman who appeared to be lying unconscious on a floor.” On September 30, 2019, Cpl. McGregor was convicted of sexual assault, possession of a device for surreptitious interception of private communications, two counts of voyeurism and disgraceful conduct. In the Reasons for Finding, the military judge was satisfied that Cpl. McGregor was the person in the video as it was “the only rational inference” that could be drawn from the whole of the evidence. (here) On October 3, 2019, Cpl. McGregor was sentenced to three years imprisonment on the sexual assault conviction. (here) He appealed.

On December 31, 2020, a three member panel of the Court Martial Appeal Court of Canada released a unanimous opinion agreeing with the conclusions of the Court Martial and dismissed the appeal. (here) The panel held: (a) the Charter did not apply to Cpl. McGregor working abroad; (b) the procedures followed by both the American and Canadian authorities in the United States would have complied with the Charter, if it did apply, and could not have impacted trial fairness; and, (c) the Virginia warrant authorized the search of electronic devices, including cell phones and computers, and the scope of the search was not expanded after CFNIS discovered evidence of additional crimes. The issue of extraterritorial application of the Charter required consideration of R. v. Hape where a majority of the Supreme Court of Canada held that the Charter does not generally apply to searches and seizures in a foreign country. It is the law of the state in which a search or seizure occurs that applies, subject to the the fair trial safeguards contained in the Charter. (here) On October 14, 2021, Cpl. McGregor was granted leave to appeal by the Supreme Court of Canada.

3. The Plain View Doctrine

On February 17, 2023, a unanimous eight member panel of the Supreme Court of Canada dismissed the appeal. (here) Justice Russell Brown did not participate in the disposition. Although the court was unanimous in the result, there was significant divergence of opinion on the application of the plain view doctrine; whether to reconsider the ruling in Hape; and, the limits on the role of interveners. I will focus on the plain view doctrine because it infrequently receives treatment by the Supreme Court of Canada and because of its practical importance in searches of digital devices by law enforcement under s. 8 of the Charter.

It is important to recall that the Virginia warrant issued because the investigators had probable cause to believe Cpl. McGregor committed the offences of voyeurism and possession of a device for interception of private communications. During the triage of the electronic devices in Cpl. McGregor’s residence, which was lawfully being conducted pursuant to the Virginia warrant, the investigators discovered a video they believed constituted evidence of a sexual assault. Although the warrant did not contemplate evidence of the unforeseen sexual assault, the majority of the Supreme Court of Canada held that the discovery of that evidence “fell squarely within the purview of the plain view doctrine.” What, then, is the plain view doctrine?

The jurisprudence of the Supreme Court of Canada on digital searches has consistently affirmed the “unique and heightened privacy interests in personal computer data”. (here and here) In the leading case of R. v. Vu, the court recognized that computer searches merit specific constraints on two things: (a) the authorization of digital searches; and, (b) the manner in which they are carried out. If the police intend to search computers found in a place, they must satisfy the issuing judge that reasonable grounds exist to believe that any computers will contain the evidence being sought. If, during the execution of a warrant, the police find a computer but the warrant does not authorize them to search it, they may seize the device but must obtain another warrant to search it. (here)

Writing for the majority in McGregor, Justice Suzanne Côté concluded that the Court Martial Appeal Court correctly held that the substance of the ruling in Vu is “directed not at the form the search warrant takes but rather at the requirement of having independent grounds to search the electronic devices”. The grounds existed in this case because the devices “could reasonably be expected to contain evidence of the voyeurism offence.” The discovery of the “unforeseen evidence” did not invalidate the warrant to conduct a search for the purposes contained in it. When the unforeseen evidence was discovered, the CFNIS obtained Canadian warrants before analyzing the contents of the devices. The investigative process (the manner of the search) was therefore consistent with the jurisprudence under s. 8 of the Charter.

Two requirements must be satisfied in order to trigger the application of the plain view doctrine: (a) the police must have “a legitimate prior justification for the intrusion into the place where the ‘plain view’ seizure occurred”; and, (b) the incriminating evidence must be in plain view in that it is “immediately obvious” and “discovered inadvertently”. (here and here) Justice Côté held that both requirements were met in this case. First, the Virginia warrant met the Vu requirement of “specific, prior authorization applicable to digital searches.” The military judge had found that discovery of the sexual assault files occurred while the investigators were looking for “the types of files specifically sought and authorized”. Second, the digital files disclosing evidence of sexual assault were in plain view “given their inadvertent discovery and immediately apparent unlawfulness.”

In a minority opinion concurring in the result, Justices Andromache Karakatsanis and Sheilah Martin held that reliance on the plain view doctrine was not necessary in this case. When the investigators viewed the files of suspected sexual assault, they did not continue to search for evidence of crimes other than those specifically authorized by the warrant. The devices that contained evidence of the unforeseen offence were “set aside for seizure and further analysis” after the Canadian warrants were obtained. The minority raised an important concern that the majority assumed the files disclosing evidence of sexual assault were seized when they were seen by the police. “Our Court has never decided the issue of when a particular file on a device is seized, as opposed to when the device (e.g., a laptop) itself is seized,” they said. Neither the appellant nor the interveners raised that question in argument and it should not be decided without the benefit of submissions. It was not necessary, the minority said, to the disposition of the appeal.

5. Conclusion

A dispute arose in obiter dicta whether this case was an appropriate vehicle to reconsider the extraterritorial reach of the Charter. The court had not been asked to overrule established precedent, a reconsideration of the court’s jurisprudence in Hape would not affect the outcome of the appeal and criticism of Hape by experts in international law was not a sufficient reason to depart from the principles of state decisis. That was the majority’s view. The minority urged that s. 32(1) of the Charter supports extraterritorial application. “It limits to whom and to what the Charter applies but not where the Charter applies,” they said. Limiting the scope of the Charter to matters within the authority of Parliament and the legislatures does not implicitly impose a territorial limit. In a separate opinion concurring with the majority, Justice Malcolm Rowe said the minority opinion went beyond the issues raised by the parties. The invitation to overrule Hape came from the interveners who sought “to alter the nature of the litigation by usurping the role of the parties”. In the result, however, the majority and minority agreed it was preferable to leave any reconsideration of the Hape framework for another day.

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