This case concerns the limits of police authority to search pursuant to a valid warrant, and how computers and electronic devices should be considered when determining the scope of a lawful search. At issue is whether a conventional warrant that authorizes a search for documents in a residence also permits the search of personal computers and mobile phones found within that residence. The BCCLA is an intervener in this case.
The BCCLA has a long-standing interest in police search and seizure powers and more particularly, the balancing of such powers against the individual right to privacy. The BCCLA argued that the computer’s unique features require a unique search approach when determining compliance with section 8 of the Charter, the right to be secure against unreasonable search and seizure. In particular, in order to protect privacy and individual liberty, the police must not search the contents of a computer without prior judicial authorization. Furthermore, in considering whether to authorise such a search, a justice must be satisfied that the intrusion upon the individual’s privacy will be minimized and that the search has been shown to be of investigative necessity.
The BCCLA’s argument in this case can be found here >>
The Supreme Court of Canada released its judgment in this case on November 7, 2013. In a landmark decision concerning rights under section 8 of the Charter, the Court unanimously ruled that specific prior judicial authorization is required for law enforcement to search individuals’ computers and similar devices. This case provides much needed guidance on search and seizure of computers and electronic devices. In this decision, the Court continues to emphasize the highly intrusive nature of computer searches, given the incredibly personal and sensitive data they hold, as well as their almost infinite capacity to store information. Because of these features, the Court also found that computers are uniquely different from other places such as filing cabinets or brief cases and that a warrant authorizing a search of a “place” does not implicitly include the search of computers.
The BCCLA is represented by Gerald Chan and Nader Hasan of Ruby Shiller Chan Hasan Barristers.
Supreme Court of Canada