R. v. Blazevic and Baba, 2011 ONSC 7549 (CanLII)
[35] The issue raised by the Defence is that the items in (a) through (f) in Appendix A are overly broad resulting in an overly broad search of the laptop. As a result, the police’s Charter offending conduct is more egregious and Mr. Baba’s Charter rights were more seriously impacted. [36] Were the items to be searched for on the laptop overly broad in the circumstances of this case? [37] When the police seize a computer (or any electronic equipment), the police have no detailed information as to what or how the information in the computer is stored. Nevertheless, the police are required to specify with some particularity what is to be searched and why the police have reasonable grounds to believe the searched items will afford evidence of the offences listed. [38] As set out in The Law of Search and Seizure in Canada (6th Edition) James A. Fontana at page 876, the author stated the following: Where stored data is to be searched for and seized from a computer, the ability of the computer to store amazingly large volumes of material imposes upon the applicant for a search warrant an obligation of special precision in identifying those documents. Descriptions which are suggestive or a “fishing expeditions” must be avoided. A court reviewing the process, however, may evaluate the particularity for the description according to the degree of precision that the facts of the case will permit: Andressen v. Maryland, United Sates v. Timpani. As with the descriptions of physical documents, description of electronically stored documents may be done by date, subject matter, author, addressee and the character of the document, whether letter, memorandum, report, etc. Where this is not possible, the description should contain some qualifier or limited phrase to distinguish the material sought from innocent data: Re Search Warrant.
[39] The Court of Appeal in R. v. Jones, 2011 ONCA 632 (CanLII), 2011 ONCA 632 at para 40 stated: There may be valid reasons, then, why the language used to authorize computer searches may need to be relatively broad in order to cope with the practical realities of an ever-changing and developing age of technology. That said, there must also be some counter-balance to protect the privacy rights of individuals in the contents of their computers. All rights to privacy in the contents of a computer need not be trampled on to achieve the state’s law enforcement objectives in a reasonable fashion.
[40] The Court of Appeal in Jones, supra at paras 42 and 43 provided some guidance as to how the police might limit the items to be searched: I do not accept that the right to examine the entire contents of a computer for evidence of one crime (fraud, in this case) carries with it the untrammelled right to rummage through the entire computer contents in search of evidence of another crime (possession of child pornography, in this case) without restraint – even where, as here, the warrant may properly authorize unlimited access to the computer’s files and folders in order to accomplish its search objectives. A computer search pursuant to a warrant must be related to the legitimate targets respecting which the police have established reasonable and probable grounds, as articulated in the warrant.
Here, that focus has been accomplished not by limiting access to the contents of the computer but – as described above – by framing the type of evidence that may be sought (evidence relating to the email transmissions and to counterfeit images) and the crimes to which that evidence relates (possession of stolen property and forgery). 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.
[41] In this case, the police did not search the entire laptop. The search was only for the 6 items listed in Appendix A. The police did narrow their search. [42] Could the police have limited its list of items such as including a time period? The police don’t know a time period for limiting emails or the photos because any date limitation would be a guess and might exclude relevant evidence. Further, the police didn't know whether the owner/user used a misleading time period to store the information. [43] It was difficult for the police to describe what should be searched for with any degree of precision and this factor needs to be taken into account in determining the reasonableness of the police actions in this case. Keeping this in mind, it is not surprising that the list of items to be reviewed will be, to some extent, broad and will likely include some information which is not relevant. [44] The protection of an “untrammelled” search of the computer comes at two stages as was done in this case. The first when a “reasonable list” of what is to be searched in the computer is set out in the search warrant (based on reasonable grounds that a search of these items will afford evidence of the offences) as this limits what the TCU officer copies from the mirror copy into the extraction copy. The second is when a “cursory review” is done of the extraction copy by the investigating officer but only relevant information is then retrieved by the TCU for the investigating officer’s use. Provided these two steps are reasonably done in the circumstances of the case, there is a reasonable balancing of the individual’s privacy rights to the contents of their computers and the state’s law enforcement objectives. [47] In this case the police sought to limit their search to specific items of the computer set out in Appendix A of the search warrant. This was not a search of the entire computer. Significant information from the laptop was not the subject of the search warrant. Constable McFadden clearly gave some thought to specifically what items within the laptop were to be searched. [48] Let me state that if the police had included the “conspiracy offence” or “unlawful confinement” in Appendix B, there would have be no issue that Appendix A was reasonable in the circumstances as there were reasonable grounds to believe that the specified items in the laptop described in Appendix A would provide evidence of the "conspiracy" or “unlawful confinement” offence. That does not mean I found there was no connection between the items listed in Appendix A and the offences listed in Appendix B. There was suspicion or speculation that the items listed could provide evidence to support the possession of stolen property and possession of the firearms offences. However, in my view, the suspicion or speculation did not amount to reasonable grounds to believe that the items listed would afford evidence of the offences listed in Appendix B. [49] Starting with items (e) and (f), these items were clearly relevant to determine the ownership of the laptop. Otherwise, any relevant information on the laptop could not be specifically associated with any of the 6 men let alone Mr. Baba. I see no difficulty with these two items. [50] With respect to items (a) and (c), this information could reasonably be suspected to disclose communications between Mr. Baba and the other men (and possibly) others with respect to possession of firearm and the reason for why the men had a firearm. While not meeting the reasonable grounds test required in S. 487 of the Criminal Code, there is a connection between the information to be disclosed by these items and the offences set out in Appendix B. [51] With respect to item (b) this information could reasonably be suspected to disclose the reason the men were behind the strip mall with a firearm because the men were using the laptop when Constable Salvatore arrived. Again, while not meeting the reasonable grounds test required in S. 487 of the Criminal Code, there is some connection between the information to be disclosed by these items and the offences set out in Appendix B. [52] With respect to items (d), the information from this item had relevancy as to the ownership of the laptop and one photo initially appeared to be the same firearm. As a result, I have no difficulty with this item. I note that the information from this item could also be reasonably suspected to disclose information with respect to possession of firearm and the reason for why the men had a firearm. [53] I conclude this list of items in Appendix A, while not meeting the reasonable grounds test, was not deliberately designed as a fishing expedition or deliberately drawn so unnecessarily broad to aggravate the seriousness of the police conduct in this case. The police had a reasonable basis for the list of items in Appendix A given their investigation into the conspiracy, but also had some basis to connect them to the offences in Appendix B. I find there was no bad faith or deliberate attempt by the police to breach the owner of the laptop's privacy rights by broadly listing the items in Appendix A. [54] Any warrantless and unlawful search necessarily infringes a person's privacy interests. However, does the list of items in Appendix A further aggravate the impact of the breach on Mr. Baba’s Charter rights? [55] The Defence submits the police reviewed more private information of Mr. Baba from the laptop than was necessary. Even if this was the case, the extent of the impact on Mr. Baba's Charter right was ameliorated by the cursory search by Constable Hawkins. It is clear the law provides that once the information has been retrieved from the computer, the police are necessarily permitted to view the information in a cursory fashion to determine what if any is relevant to the offences. See Jones, supra at para 44. [56] Constable Hawkins' initial search of the extraction copy was cursory and the only evidence designated by Constable Hawkins was extremely limited in scope and quantity. [57] While access to the information by the police is the breach of the privacy right, given the Defence submission was the information obtained a further aggravation of the breach of Mr. Baba’s privacy rights? [58] With respect to the photos designated by Constable Hawkins, there were very few personal in nature – photos of Mr. Baba and photos of some weapons. Other photos were publicly available information such as Google maps or photos of homes from the street. With respect to the internet usage of usfleettracking.com, what must be remembered was this information tracked the GPS which had been placed on Marcel Jones’ vehicle - Mr. Jones' privacy interest was affected and not Mr. Baba except to the extent that the police were able to confirm the information was on his laptop. [59] Other than the fact the search of the laptop (and hence the retrieval of any information in the laptop) was an unwarranted search and a breach of Mr. Baba’s privacy rights, there is no further aggravating factor arising from the description in Appendix A as suggested by the Defence.
