Is it a violation of the right to be secure against unreasonable search or seizure when a citizen hands over evidence of a crime to the police and the police examine it without getting a search warrant? That question has been considered by two provincial courts of appeal in Canada that went in different directions without settling the controversy. And a recent ruling from the Alberta Court of King’s Bench has now been added to the evolving case law.

1. Introduction

On November 17, 2025, Justice Nathan Whitling of the Alberta Court of King’s Bench released the ruling in R. v. B.R. involving the seizure by the police of two “electronic conversations” between the defendant and a 16 year old high school student that were recorded on electronic files. (here) The defendant was an educational assistant at the school. The recordings consisted of Snapchat messages and a video recording of a Snapchat voice call. The video recording contained discussion of their apparent sexual activity. The principal eventually got copies of the conversations from the student and handed them over to the police. The defendant was charged with sexual exploitation and related offences. The question arose on a pre-trial motion whether the warrantless seizures by the police violated s. 8 of the Charter of Rights and Freedoms which guarantees the right to be secure against unreasonable search or seizure. The ruling presents an opportunity to discuss an evolving area of Charter jurisprudence where two provincial courts of appeal have gone in different directions on a thorny issue of search and seizure law.

2. The Emerging Case Law

A line of authorities has been developing in recent years stemming from R. v. King where the appellant’s wife found child pornography on his computer, photographed some of the images, transferred them to a USB device and took the device to the police. The police examined the contents and used the information to obtain search warrants for the appellant’s house, truck and electronic devices. The searches uncovered other child pornography images. The Alberta Court of Appeal held that “[t]he requirement that there be ‘state action’ for a Charter breach is effectively negated if private action becomes state action the minute the private citizen interacts with the police.” (here) The police are not required to “conduct a voir dire at the front counter of the police station” before looking at what the citizen brought in. If the police want to follow up on the information, they may have to obtain a warrant. But merely looking at the USB flash drive “was not a ‘search’ involving the appellant, let alone a search involving state action” under s. 32 of the Charter. Section 32 provides that the Charter applies  to all matters within the authority of Parliament and the legislature of each province.

The issue arose again in R. v. Soop where Justice Nancy Dilts of the Alberta Court of King’s Bench considered whether the Charter was implicated when the police examined a cellphone containing evidence of a criminal offence after the cellphone was voluntarily turned over to the police by a member of the public. Justice Dilts held that King “settles the issue in Alberta of whether s. 8 is engaged when a member of the public brings evidence of a possible crime to the police for review.” (here) Justice Dilts went on to specifically find that the defendant’s s. 8 rights were not engaged when the police “looked at the contents of the cellphone to view the suspected child pornography” nor when they “photographed and recorded the cellphone’s unique identifiers”. The Alberta Court of Appeal had stated in King that “the police can presumptively look at most evidence provided to them without breaching s. 8.” That, however, does not end the analysis because King was not followed by the Ontario Court of Appeal in R. v. Lambert. (here)

In Lambert, the trial judge held that s. 8 was not engaged when the defendant’s wife brought two family computers to the police containing evidence that he had been accessing child pornography. Writing for the unanimous panel, Justice David Paciocco stated that “it mischaracterizes events to describe either of the two handovers of the computers to the police as the ‘passive receipt of an item’ by the police.” On both occasions the police physically took the computers, secured them, and lodged them, thereby preventing the appellant from having access. That was not passive receipt. By accepting the computers, “the police actively took and exercised control over them to the exclusion of Mr. Lambert.” Justice Paciocco applied the ruling in R. v. Cole where the Supreme Court of Canada held that “inspection is a search” and “a taking is a seizure”. (here) The police in Cole did not initiate the transfer of the computer, but they accepted it, taking the computer without a warrant. The Lambert court thus concluded that both computers were seized within the meaning of s. 8.

The question was expressly left open by the Supreme Court of Canada in R. v. Reeves where Justice Andromache Karakatsanis emphasized the distinction between a private citizen offering information and the police taking information. (here) The distinction was recently considered in R. v. Tate where Justice Gareth Morley of the British Columbia Supreme Court highlighted the conflict in the case law. (here) Justice Morley drew attention to King and Lambert that “go […] in different directions” without settling the controversy. He invited comparison between the two cases. In King, it was held that, when the police examine evidence provided by a private citizen, they do not engage in a search or seizure regardless of whether the private citizen infringed the privacy interests of the defendant. In Lambert, it was held that it is a “seizure” where the police obtain information from a third party over which a defendant has a reasonable expectation of privacy. However, Justice Morley went on to conclude that the controversy did not have to be settled in Tate because the defendant did not have a reasonable expectation of privacy in the information.

Returning, then, to Justice Whitling’s ruling in B.R., it was significant that the investigating police officer asked the principal to send her copies of the electronic recordings. The Crown and the defendant made identical submissions that “Cst. Ingram requested [the principal] send him [sic] those items.” The Crown’s submissions also stated, “When asked, the principal provided the police the recordings.” The Crown argued, based on King and R. v. A.K. (here), that the electronic files were voluntarily provided to the police and there was no state action under s. 32 of the Charter. The defendant argued that King and A.K. were distinguishable in that the police officer did not merely receive the items but asked the principal to send her copies. The defendant further argued, based on Lambert, that by receiving the electronic files, retaining them and depriving the defendant of them was sufficient state action to engage s. 32.

Justice Whitling found that the facts in B.R. “lie somewhere between King and Lambert.” As in King, the state authorities did not receive or accept a physical device potentially containing a vast quantity of irrelevant personal information or deprive the accused of any such device. However, the police officer did not passively receive and review copies of electronic files and then rely upon the information to apply for a warrant. Rather, “Cst. Ingram asked the principal to send her copies for the police’s own use” that deprived the defendant of control and confidentiality over the electronic conversations the files contained.” Justice Whitling therefore concluded there was “sufficient state action” to engage s. 8.

3. The Private Search Doctrine

The private search doctrine is grounded in the Fourth Amendment to the Constitution of the United States which provides that “[t]he right of the people to be secure […] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation […]”. The doctrine concerns circumstances in which a private party’s intrusion on a reasonable expectation of privacy would have constituted a search had it been conducted by an agent of the state and the material seized by the private party then comes into the possession of a government agency. Invoking the precept that when private parties provide evidence to the state on their own accord, it is not incumbent on the police to avert their eyes, the United States Supreme Court formalized the private search doctrine in Walter v. United States which did not produce a majority opinion, and in United States v. Jacobson which did. (here and here)

The leading cases of Walter and Jacobson both considered a warrantless government search after a private party “freely made available” certain information for the government’s inspection. Taken together, the court held that an antecedent private search excuses the government from obtaining a warrant to repeat the search but only when the government search does not exceed the scope of the private one. That is, as the court said in Jacobson, “[t]he additional invasions of […] privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.” However, it appears that the private search doctrine has not been adopted by a Canadian court and whether the Supreme Court of Canada would follow American jurisprudence is not a certainty. (here, here and here)

4. Conclusion

Let’s return to the ruling in Soop, by way of example, to see how the private search doctrine may impact the result. Justice Dilts held, first, that s. 8 of the Charter was not implicated when the police looked at the contents of the cellphone. The background was that a member of the public found the cellphone at a bus stop. She charged it, turned it on and found that it contained videos of child pornography. It appears that the police did what the finder did – they looked at the contents. The search by the police therefore did not exceed the antecedent private search and the warrant requirement is excused. But, second, Justice Dilts also found that s. 8 was not engaged when the police photographed and recorded the cellphone’s unique identifiers. It would appear that this secondary search exceeded the private search and s. 8 is violated in the absence of a search warrant. The application of the private search doctrine thus highlights the unsatisfactory state of the law in Canada which is likely to continue until clarified by the Supreme Court of Canada.