[73] The absence of specific search protocols allowed for flexibility in terms of the manner in which the forensic examination of the Samsung phone was conducted. Flexibility is generally a good thing. But it does tend to positively correlate with uncertainty.
[74] One uncertainty arising in this case – and undoubtedly in many others – is whether the police have an obligation to destroy the mirror image of the phone created as part of their search protocol.
[75] While I am satisfied that it was reasonable for the forensic examiner to make a copy of the phone’s hard drive for the purposes of examination, it does not automatically follow that the police were permitted to keep that copy indefinitely.
[76] This issue was recently addressed by the Court of Appeal for Ontario in R. v. Nurse, 2019 ONCA 260. Mr. Nurse and another male were jointly charged with first degree murder. The police seized Blackberry phones from each and obtained warrants to search both. The expectation was that they would find communications between the two accused relating to the planning of the murder.
[77] The police obtained a warrant to seize the phones from their secure locker and to create mirror images of them for the purpose of forensic analysis. A search was initially conducted that yielded mediocre results due to the security features of the phones. About a year later a second forensic analysis was conducted on the mirror images of the phones with updated software. The second search yielded far better results, at least from the point of view of the police. The second search was conducted without first having obtained a second warrant.
[78] The trial judge, Coroza J., concluded that a second warrant was unnecessary. The Court of Appeal agreed. Trotter, J.A., writing for a unanimous panel, held that the second search of the imaged data was “another interpretation, inspection or analysis of materials already seized. It involved no further invasion of the appellants’ privacy rights.” (Para. 132). He went on to hold that once it was established that it was proper for the police to image the data on the phones, “there was no restriction on the face of the warrant or at law, as to when or how often the police were permitted to examine or inspect this lawfully seized and copied data.” (Para. 137).
[79] In this case I have concluded that it was proper for the police to image the data from the Samsung phone. Warrant #1 restricted the examination of the data to specific areas. But beyond that, the warrant did not restrict when or how often the police could examine that data.
[80] In my view, the Court of Appeal’s decision in Nurse is dispositive. There is no requirement in law limiting when or how often the police may inspect the data copied from the phone. It follows that there is no requirement in law that the police destroy the data they properly copied.
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