[53] Lastly, relying on Vu, McNeill asserts that the police were constitutionally required to seek a second warrant to examine her phone even if it was lawfully seized under the warrant.
[54] I do not agree with this submission.
[55] I first note that, for a search warrant to extend to computers, Vu does not require the police to specifically identify in advance each computer to be searched. The police do not even need to have reasonable grounds to believe that any computers will be found in the place. The police only need to have reasonable grounds to believe that “any computers they discover will contain the things they are looking for”. As Cromwell J. for the Court explained in Vu, at paras. 48-49:
Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that any computers will be found in the place, although they clearly should disclose that if it is the case. …
If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant. [Emphasis added.]
[56] As I have discussed above, in my view, the ITO met this standard, and therefore provided constitutionally sufficient grounds to support the search of any electronic devices found in the garage.
[57] In support of her argument that the police needed a second warrant to search her phone, however, McNeill relies on Cromwell J.’s comments in Vu that, in some cases, authorizing justices “may find it practical to impose conditions when police first request authorization to search”, or “might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have the police return for an additional authorization to search the device seized”: at para. 62. But I note that these comments are framed in terms of what an issuing justice may find “practical” or what they “might prefer”. They do not, on their face, impose a constitutional requirement.
[58] In this case, while the issuing justice could have authorized a seizure of any electronic devices from the garage and then required the police to return for a second warrant to search any such devices, this approach was not constitutionally mandated. That is because, as I have explained above, the ITO in this case contained sufficient information to permit the issuing justice to find that there were reasonable grounds to believe that any electronic devices found in the garage would provide evidence of drug trafficking. Because of the evidence in the ITO, a one-stage approach was constitutionally sufficient in this case.
[59] The search of McNeill’s cellphone was conducted in accordance with the Terms and Conditions of the warrant and the evidence obtained related to the offences specified in the warrant. This was not a case where the police lawfully searched an electronic device pursuant to a valid warrant for one offence and discovered evidence of another: see e.g., R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241. Different circumstances may require a further warrant to comply with s. 8 of the Charter.
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