Si le mandat prévoit des heures pour effectuer la perquisition, cela ne s'applique à la fouille des données un coup qu'elles sont saisies

R. v. Nurse and Plummer, 2014 ONSC 1779

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[24]           Counsel argues that the warrant only authorized a physical transfer of the phones from the OPP Vault to the OPP ECrimes Unit for an initial visual inspection to determine what could be done with the phones.   Once it was determined that the OPP would not able to conduct an analysis on the password protected phones, a justice would have to be informed that the phones were password protected because it engaged additional privacy interests and a second warrant was required for the RCMP to break through this password and extract the data from these phones.

[34]           Mr. Battigaglia, relies on Hill J.’s comments in R. v. N.N.M.[11], in that case Hill J. was faced with this same problem in the case of a warrant to seize firearms.  The Crown urged the court to apply the doctrine of severability to uphold the warrant but Hill J. refused, citing the decision in Branton.  At para. 335 he held:

I am not inclined to do so for the following reasons.  The court in Branton did not raise the prospect of curing such a facial validity defect by severance. Authorized searchers read the Form 5 warrant not the ITO.  Apparent conferral of searching and seizing authority exceeding what is properly supported by grounds in the ITO improperly risks overly broad conduct at the scene of the search thereby implicating N.N.M.’s s.8 Charter right to be free from search by invalid court orders.[12]

[46]           I adopt the analysis of Paciocco J. in R. v. Barwell[13], which I find persuasive.   In Barwell, the police had seized hard drives as part of an investigation and were holding those items at a police lock-up.   The police sought a warrant to search the hard drives and obtained a warrant authorizing the search and seizure of the computer hard drives from the lock-up.

[47]           The search warrant authorized the police to "between the hours of 6:00 a.m. to 9:00 p.m., to enter and search for" the computer hard drives "and to bring them before me or some other Justice to be dealt with according to law."   The items were seized during the time frame specified but were not analyzed until the day after the period provided for in the warrant.

[48]           The accused argued that the examination had to be completed within the 15 hour window set out in the warrant, and breached his s. 8 rights.

[49]           Paciocco J. rejected this argument and held that the search and seizure authorized by this warrant occurred properly when the police assumed control over the computer hard drives from the lock up within the period specified for that search and seizure.   He held at para 17-18:

It was not required by the warrant that the forensic examination would take place during that same brief window. The time limits under the search warrant were not, therefore, dishonoured by Detective Thompson when he commenced the forensic search the next day. First, consider the implications of the argument that a forensic search of a seized chattel must be undertaken within the search period specified on the face of the warrant. Imagine, for the sake of the exercise, that the computer had been at Mr. Barwell's home, and that the warrant authorized the search and seizure to occur there. In order to minimize the intrusion Mr. Barwell's private dwelling, the warrant period would necessarily have been brief, to minimize the control the police could exercise over Mr. Barwell's home. The law would have required it, and so the search period on the face of the warrant would have been brief. Would the law, nonetheless require, in such circumstances, that any forensic examination of the computer would have to occur within that same brief search window on the face of the warrant? This would be unrealistic. Forensic examinations take time, and it would be counter-productive to the privacy interest to extend search and seizure periods for long periods of time in order to accommodate forensic examinations.

The flaw in this Charter challenge is that it fails to recognize that the law treats the initial search and seizure and subsequent forensic examinations separately. There are provisions authorizing the initial search and seizure of the item, such as Section 487 of the Criminal Code of Canada, relied upon to secure the warrant in this case. There are other separate and distinct provisions dealing with the detention of items, including detention "for the purposes of any investigation." Specifically, Sections 489(1) and 490 of the Criminal Code of Canada together require that when things have been seized pursuant to a warrant, the police officer shall, as soon as practicable, either bring the seized items before a Justice or file a report identifying the thing being detained and the reason for detention. And the Justice shall order that the thing be released or detained, including for the purposes of investigation. In other words, the search warrant provision deals with the time required for the initial search for an item and with its seizure. The detention provisions address how long the item can be kept for forensic analysis after the search is made for the item and it is seized.[14]

Les principes juridiques relatifs à la communication de la preuve qui est volumineuse

R. v. Piaskowski et al, 2007 MBQB 68

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[84]         Having had a chance to review the voluminous materials filed in this matter I conclude the following principles apply:

1.     What constitutes disclosure in a particular case depends on the facts of the case and the circumstances of the accused. 

2.     The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.

3.     The Crown has an obligation and a reviewable discretion to determine what is relevant, and counsel for the Crown may rely on the advice and opinion of investigators in determining relevancy in the case where materials are voluminous. 

4.     The Crown must disclose materials in a manner which the accused can reasonably access. 

5.     Where an accused is represented by counsel; electronic disclosure is not objectionable merely because of counsel’s lack of computer skills unless it can be shown that access to the materials would be beyond the competence of the average reasonably skilled person. 

6.     Where the Crown wishes to make electronic disclosure as opposed to paper disclosure, the Crown has a further obligation to assist counsel lacking familiarity with the software utilized, and an unrepresented accused who bona fide has limited or no computer skills with reasonable access to materials that form part of the disclosure.  This further obligation may range from training on the use of the software through the provision of computer equipment and may include the obligation to provide paper copies of all disclosure.  This would depend on the circumstances of each case. 

7.     Electronic disclosure must permit counsel to be able to print copies of the documents and images in a readable manner so as to be able to communicate effectively with his or her client. 

8.     The expense to the Crown of providing hardcopies of the documents is a factor the court can take into account in determining whether electronic disclosure is reasonable, but it cannot trump the accused’s right to a fair trial. 

9.     If the cost of producing hardcopies of the electronic documents interferes with the accused’s ability to make full answer and defence, the court can order the Crown to provide hardcopies of electronic disclosure at Crown expense. 

Il est approprié de tenir compte de la protection des enfants vulnérables dans l'appréciation de l'expectative raisonnable de vie privée invoquée par un accusé eu égard à une télécommunication

R. v. Knelsen, 2024 ONCA 501

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[33]      The point of departure is the Supreme Court’s decision in Marakah, a case that dealt with the warrantless search and seizure by the police of text messages between two individuals suspected of engaging in illegal firearms transactions. Marakah cited and built upon many prior authorities of the Supreme Court in addressing whether the sender of an electronic message retained a reasonable expectation of privacy in messages after they were sent.

[34]      To establish a reasonable expectation of privacy and engage s. 8 of the Charter, a s. 8 claimant must establish an expectation of privacy in the subject matter at issue that is “objectively reasonable” given “the totality of the circumstances”: Marakah, at para. 10. As McLachlin C.J. stated at para. 11, there are four lines of inquiry that guide the court’s analysis: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) if so, whether the claimant’s subjective expectation of privacy was objectively reasonable.

[35]      Marakah recognizes that the expectation of privacy is in the electronic conversation itself and not the electronic device: at paras. 16-19. This is a question of “informational privacy”, which has been defined as the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23. The electronic conversation includes “the existence of the conversation, the identities of the participants, the information shared, and any inferences about associations and activities that can be drawn from that information”: Marakah, at para. 20.

[36]      Marakah also confirms that a reasonable expectation of privacy can exist in a conversation even after the message is no longer in the sender’s control, and irrespective of the potential for disclosure by the recipient. Although recognizing that control is a factor to be considered in the totality of the circumstances, McLachlin C.J. concluded that the risk that the recipient of the subject text messages could have disclosed them did not negate the reasonableness of Mr. Marakah’s expectation of privacy against state intrusion: at paras. 44-45.

[37]      A reasonable expectation of privacy can exist even when it shelters illegal activity: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 43; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36; and R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28. The focus is not on the actual contents of the message seized by the police, but on the potential of a given electronic conversation to reveal private information: Marakah, at para. 32. This is the principle of “content neutrality” applied in the context of s. 8, also expressed as the inability of the state to justify a s. 8 intrusion ex post facto, based on the results of the search: see Marakah, at para. 48. See also R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at pp. 45-47, 54‑56.

[38]      There is no automatic standing to assert a s. 8 right in respect of text messages that have been sent and received. “The conclusion that a text message conversation can, in some circumstances, attract a reasonable expectation of privacy does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy”: Marakah, at para. 5 (emphasis in original). Whether there is a reasonable expectation of privacy depends on the “totality of the circumstances” to be assessed in each case based on its own unique facts: Edwards, at para. 45; Marakah, at para. 11. The question is whether a reasonable and informed person in the position of the accused would expect privacy in the subject matter of the search: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 35.

[39]      The “totality of the circumstances” test depends on a non-exhaustive list of factors, including (1) the place where the search occurred; (2) the private nature of the subject matter, i.e., whether the informational content of the electronic conversation would be details of the claimant’s lifestyle or information of a biographic nature; and (3) control over the subject matter: Marakah, at para. 24.

[40]      The evaluation of the totality of the circumstances is not a purely factual inquiry; it is also normative. This has been expressed as the need to balance “societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement”: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. In Reeves, at para. 11, the Supreme Court noted that the question is “whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”.

[41]      In Mills the Supreme Court expressly recognized societal interests other than those underlying an individual’s interest in privacy and the state’s interest in law enforcement in determining whether an expectation of privacy is reasonable. Mills involved the admissibility of text messages sent by an adult during a police sting operation to a recipient who had assumed the identity of a child. Brown J.’s majority reasons[4] noted that the determination of whether an expectation of privacy is objectively reasonable is “not purely a descriptive question, but rather a normative question about when Canadians ought to expect privacy, given the applicable considerations”: at para. 20 (emphasis in original). In that case, the societal interest to be balanced against the individual’s right to privacy was the protection of vulnerable children. Brown J. acknowledged that the offender had instructed the person he believed was a child to delete their messages regularly and to keep their relationship hidden. Nevertheless, he held that, in the totality of the circumstances, “any subjective expectation of privacy the [offender] might have held [in the messages] would not be objectively reasonable”: at para. 20.

[42]      Observing that the Internet allows for greater opportunities to sexually exploit children, and that enhancing protection to children from becoming victims of sexual offences is vital in a free and democratic society, Brown J. concluded that “on the normative standard of expectations of privacy … adults cannot reasonably expect privacy online with children they do not know”: at para. 23. He noted that, while many adult-child relationships are also worthy of s. 8’s protection, the relationship between the offender and the person he believed was a child was not one of them, and that this conclusion “may or may not apply to other types of relationships, depending on the nature of the relationship in question and the circumstances surrounding it at the time of the alleged search”: at para. 26.

[43]      In her concurring reasons in Mills, Karakatsanis J. also spoke of the need to balance individual privacy with the protection of children. In rejecting a reasonable expectation of privacy in the offender’s online conversation with a police officer posing as a child, she stated, at para. 52, that “[t]he alternative conclusion would significantly and negatively impact police undercover operations, including those conducted electronically … [and it] simply does not strike an appropriate balance between individual privacy and the safety and security of our children”.

[44]      In the recent Supreme Court decision in R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, Karakatsanis J. observed, at para. 71, that defining a reasonable expectation of privacy “is an exercise in balance”, and that while individuals are entitled to insist on their right to be left alone by the state, “[a]t the same time, social and economic life creates competing demands.… The community wants privacy but it also insists on protection”. See also this court’s decisions in El-Azrak, where Fairburn A.C.J.O. observed, at para. 62, that “[p]roperly viewed through a normative lens, privacy interests will rise to constitutional status when those interests reflect the ‘aspirations and values’ of the society in which we live”, and R. v. Singh, 2024 ONCA 66, 432 C.C.C. (3d) 527, where Doherty J.A. noted, at para. 66, that the reasonable expectation of privacy constitutionally protected by s. 8 of the Charter is “intended to reflect and reinforce sometimes competing societal values”.

[45]      Accordingly, in considering whether the appellant had a reasonable expectation of privacy in the text messages on the complainant’s cell phone, it is appropriate for the court to consider the competing societal value of the protection of vulnerable children from exploitation through the use of electronic media.

[46]      Before moving to the application of the law to the facts of this case, I pause to note that there have been a number of reported cases involving the admissibility of electronic messages sent to a complainant where the messages in which a privacy interest was claimed had been voluntarily provided to the police by the complainant. In some, as here, the courts have applied a “totality of the circumstances” test: see, for example, R v. K.A. and A.S.A., 2022 ONSC 1241, 504 C.R.R. (2d) 1, and R. v. C.M., 2022 ONCJ 372, 515 C.R.R. (2d) 100. In others, courts have found that s. 8 was not engaged because there was no state intrusion or seizure by the police, or that, if s. 8 was engaged, the search was reasonable in part because the messages were turned over voluntarily.[5]

[47]      In this case, the Crown did not argue that, because of the consent of the complainant and her father, there was no police seizure, or that, if the appellant had a reasonable expectation of privacy, the seizure of the text messages with the consent of the complainant was reasonable. Accordingly, it is beyond the scope of these reasons to consider whether such arguments might succeed in another case.[6] The focus for the disposition of this appeal is on whether the appellant’s subjective expectation of privacy in the messages he exchanged with the complainant, on the totality of the circumstances, including normative considerations, was objectively reasonable.

[6] Indeed, whether s. 8 is engaged in cases of voluntary turnover of text messages by their recipient has not yet been conclusively decided by the Supreme Court. As Paciocco J.A. noted in R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at para. 54, it is arguable that the Supreme Court’s decision in Cole supports the proposition that it is possible for s. 8 to be engaged – and breached – even where electronic data is “handed over” to the police. Nevertheless, in Reeves, Karakatsanis J. stated that “[t]he issue of whether s. 8 is engaged when a citizen voluntarily brings an item to the police remains for another day”. Beyond Cole, the closest that the Supreme Court has come to addressing this issue is in obiter in Marakah. Again, the text messages in Marakah were accessed by the police without a warrant or the consent of either party to the communications. McLachlin C.J., at para. 50, responding to concerns raised by the dissent about the implications of the broad acceptance of s. 8 standing for the sender of text messages on the other party’s cell phone, suggested three ways in which a breach could be avoided “[a]ssuming that s. 8 is engaged when police access text messages volunteered by a third party” (emphasis added). She cited to R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at paras. 21 to 35, where Doherty J.A. considered the Crown’s argument that there was no s. 8 breach where information had been brought to the police voluntarily. After canvassing the case law, which was unsettled, he stated at para. 34:

I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative.… [I]t is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police.

McLachlin C.J. also recognized that, even if there were a reasonable expectation of privacy that gave an accused person standing to argue that a text message should be excluded from evidence, it did not follow that the accused’s argument would succeed or that the search would be found to violate s. 8: at para. 51.

Limiter la police à chercher le nom des fichiers, des dossiers ou de la valeur de hachage dans sa fouille d'un support informatique crée des angles morts inacceptables

R. v. John, 2018 ONCA 702 

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[23] As this court noted in R. v. Jones (2011), 107 O.R. (3d) 241, [2011] O.J. No. 4388, 2011 ONCA 632, at paras. 43-44:

The focus on the type of evidence being sought, as opposed to the type of files that may be examined is helpful, it seems to me, particularly in cases where it may be necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged.

To the extent they are required to examine any file or folder on the computer to reasonably accomplish that authorized search, the police are entitled to open those files and folders and to examine them, at least in a cursory fashion, in order to determine whether they are likely to contain evidence of the type they are seeking.

(Citations omitted)

[24] I do not accept the argument that there must be prior evidence of concealment of incriminating evidence before police can look at all images and videos stored on a computer in this kind of investigation where some child pornography has been located on the computer on initial examination. Rather, a search of all images and videos is appropriate in an investigation like this precisely to determine whether there is more child pornography on the computer. To limit police to searches by hash values, file names and download folders would be to provide a roadmap for concealment of files containing child pornography.

[25] I also do not accept the argument that the search was overbroad because it was not tailored to a date range in terms of the files searched. Here the police were looking for images and videos of child pornography and evidence that might show who was responsible for that content. This was not a broad search of multiple devices or large amounts of data unrelated to the specific investigation, such as in R. v. Sop, [2014] O.J. No. 3666, 2014 ONSC 4610 (S.C.J.), at paras. 116-149; or R. v. Marek, [2016] A.J. No. 24, 2016 ABQB 18, at paras. 120-147.

[26] Finally, I reject the argument that the search of all images and videos here was overly invasive because the vast majority of the offending material would have been located using a combination of hash value comparison, keyword searching of file name and [page678] searching the file folders most likely to contain child pornography. This argument fails because it uses the ultimate results or fruits of the search to dictate whether the scope of the search was reasonable. Given the limitations of searching only by hash value or file or folder name discussed above, hindsight should not be used in this way to turn what was once a reasonable search in all the circumstances into an unreasonable one.