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Police Need Warrant to Search Smart Phones

  • July 16, 2014
  • Clayton Rice, K.C.

In two major developments in Canada the courts have enhanced the protection of information stored by citizens on their computers and smart phones.

In R. v. Vu, [2013] 3 S.C.R. 657 the Supreme Court of Canada unanimously held that the privacy interests implicated by computer searches call for specific judicial authorization. Justice Thomas A. Cromwell wrote the following, at para. 3: “If, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched.”

Justice Cromwell specifically recognized, at para. 24, that 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.”

It is also significant that the court did not distinguish between computers and cellular telephones. Justice Cromwell made this observation, at para. 38: “Although historically cellular telephones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers.” Mr. Justice Cromwell specifically included the cellular telephone “within the term computer”.

In a recent case reported as R. v. Croft, 2014 ABQB 208 which I defended in Edmonton, a pretrial motion was brought to exclude data obtained by the police from two BlackBerrys. The BlackBerrys were seized by the police at the time of the defendant’s arrest and the data was subsequently extracted at the RCMP Tech Crime Lab in Ottawa. I argued that the rule in Vu is this: Any time the police intend to search the data stored on a computer found within a place for which a search has been authorized, they require a specific warrant to do so. The rule with respect to a search of a cellular telephone seized incidental to arrest ought to be: Any time the police intend to search the data stored on a cellular telephone seized incidental to arrest, they require a specific warrant to do so.

Justice Brian R. Burrows of the Court of Queen’s Bench of Alberta agreed. In Croft, at paras. 40 and 48-49, he emphasized the “special nature” of smart phones as containers of a vast scope of information which had been recognized in Vu. The search and seizure of the data content of a smart phone seized incidental to arrest requires a specific warrant just as the lawful search of a residence requires a specific warrant when the police find the house key during a search incidental to arrest.

The scope of the common law power of the police to search an electronic communication device incidental to arrest is now before the Supreme Court of Canada on appeal from the Ontario Court of Appeal in R. v. Fearon, 2013 ONCA 106. It has not been decided.

Stay tuned.

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