Warrants
[53] Prior to examining computer searches, a brief discussion of warrants is of benefit. The face of the warrant is the document that empowers police to search a particular location for particular evidence: Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503; R. v. Parent, 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385; R. v. Ricciardi, 2017 ONSC 2788; R. v. Merritt, 2017 ONSC 80. The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence. However, the ITO is not part of the warrant that a searching officer is expected to examine. Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search.[4] As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the “fellow officer” test – that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant: R. v. Raferty, 2012 ONSC 703 at para 103.
[54] In Ricciardi, Di Luca J. reviewed the guiding principles dealing with search warrants, searches pursuant thereto, and judicial review thereof. At paragraphs 12 to 17, Di Luca J. reviewed the law regarding the issuing of search warrants. At paragraphs 18 to 20, he then reviewed the law as it applies to the role of the reviewing judge:
On a review, the role of reviewing judge is not substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant; see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCS 285 and R. v. Morelli, supra, at para. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para 99:
A reviewing judge does not substitute his or her view for that of the justice who issues the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.
The review is conducted based on the whole of the ITO using a common sense approach to all the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant; see R. v. Morelli at para 167, R.v. Lubell and the Queen (1973), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 190, Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.) at p. 297, R. v. Ngyuen, supra, at para. 58, R v. Araujo (2000. 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.) and R.v. Persaud, 2016 ONSC 6815 at para. 64.
The excision exercise requires that any unlawfully obtained evidence be removed from consideration in assessing the sufficiency of grounds in an ITO, see R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (SCC) and R. v. Wiley 91993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (SCC). While the continued validity of the automatic exclusion approach has been criticized, it remains the law; see R. v. Jasser, 2014 ONSC 6052 at paras. 26-34.
Computer Searches and Warrants
[55] Special interests are at play when the Courts examine the searches of computers. Computers carry immense vaults of personal and biographical information. The search of this information is, by definition, highly invasive. As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para 105:
As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.
[56] Typically, the right to search a location also provides the police with the right to search the receptacles within that location. Unsurprisingly, given the heightened importance associated with the search of computers, the Supreme Court of Canada in Vu held that computers are different than other receptacles. The Court stated at paras 40 to 45:
It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer: Morelli, at para. 105; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 3. Computers are "a multi-faceted instrumentality without precedent in our society": A. D. Gold, "Applying Section 8 in the Digital World: Seizures and Searches", prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis added). Consider some of the distinctions between computers and other receptacles.
First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic. We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence" (2010), 12 Yale J.L. & Tech. 311 at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location. As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481, at para. 43.
Second, as the appellant and the intervener the Criminal Lawyers' Association (Ontario) point out, computers contain information that is automatically generated, often unbeknownst to the user. A computer is, as A.D. Gold put it, a "fastidious record keeper" (para. 6). Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it. Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, "Searches and Seizures in a Digital World" (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.
Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them.
…
Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users' knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.
Fourth, limiting the location of a search to "a building, receptacle or place" (s. 487(1) of the Code) is not a meaningful limitation with respect to computer searches. As I have discussed earlier, search warrants authorize the search for and seizure of things in a "building, receptacle or place" and "permit the search of receptacles such as a filing cabinets, within that place…. The physical presence of the receptacle upon the premises permits the search": Fontana and Keeshan, at p. 1181 (italics in original; underling added). Ordinarily, then, police will not have access to items that are not physically present in the building, receptacle or place for which a search has been authorized. While documents accessible in a filing cabinet are always at the same location as the filing cabinet, the same is not true of information that can be accessed through a computer. The intervener the Canadian Civil Liberties Association notes that, when connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized.
These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule -- that if the search of a place is justified, so is the search of receptacles found within it -- simply cannot apply with respect to computer searches.
[57] The Supreme Court of Canada then considered whether or not a properly authorized warrant to search required search parameters. In holding that search parameters were not constitutionally required, the Court stated at paras 53 and 54 of Vu:
The intervener the British Columbia Civil Liberties Association (“B.C.C.L.A.”) submits that, in addition to a requirement that searches of computers be specifically authorized by a warrant, this Court should also find that these warrants must, as a rule, set out detailed conditions, sometimes called "ex ante conditions" or "search protocols", under which the search may be carried out. According to the B.C.C.L.A., search protocols are necessary because they allow authorizing justices to limit the way in which police carry out their searches, protecting certain areas of a computer from the eyes of the investigators. The Crown and intervening Attorneys General oppose this sort of requirement, arguing that it is contrary to principle and impractical. While I am not convinced that these sorts of special directions should be rejected as a matter of principle, my view is that they are not, as a general rule, constitutionally required and that they would not have been required in this case.
While I propose, in effect, to treat computers in some respects as if they were a separate place of search necessitating distinct prior authorization, I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in every case, be necessary to properly strike the balance between privacy and effective law enforcement….
[58] However, the Court did indicate at paras 61 and 62 that parameters may be preferable in certain situations:
By now it should be clear that my finding that a search protocol was not constitutionally required in this case does not mean that once police had the warrant in hand, they had a licence to scour the devices indiscriminately. They were bound, in their search, to adhere to the rule that the manner of the search must be reasonable. Thus, if, in the course of their search, the officers realized that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so.
Although I do not find that a search protocol was required on the particular facts of this case, authorizing justices must assure themselves that the warrants they issue fulfil the objectives of prior authorization as established in Hunter. They also have the discretion to impose conditions to ensure that they do. If, for example, an authorizing justice were faced with confidential intellectual property or potentially privileged information, he or she might find it necessary and practical to impose limits on the manner in which a computer could be searched. In some cases, authorizing justices may find it practical to impose conditions when police first request authorization to search. In others, they might prefer a two-stage approach where they would first issue a warrant authorizing the seizure of a computer and then have police return for an additional authorization to search the seized device. This second authorization might include directions concerning the manner of search. Moreover, I would not foreclose the possibility that our developing understanding of computer searches and changes in technology may make it appropriate to impose search protocols in a broader range of cases in the future. Without expressing any firm opinion on these points, it is conceivable that proceeding in this way may be appropriate in some circumstances.
[59] The Ontario Court of Appeal had considered the “license to scour” a computer described in Vu, in R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241. In Jones, the police seized a computer and searched pursuant to a broadly worded warrant. In searching the computer, the police analyst discovered child pornography. The police relied upon the initial warrant to conduct a further search. The Crown argued on appeal that a computer was an indivisible item and that once police had authority to search the computer, the police could search the entire computer.
[60] Blair J.A., writing for the Court, rejected this argument and stated at paragraph 50:
The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user's privacy rights in other information stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.
