Computer-related Search Issues

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General Principles

See also: Special Search Warrant Issues

General warrants under s. 487 are the most typical manner of authorizing an officer to examine the contents of a computer.[1]

The connection of an IP address with an ISP account can form reasonable grounds to believe that a computer will be present at the address, but will often need something more.[2]

Where a warrant permits the police to search a residence and seize computers, the police are not permitted to complete full forensic analysis on the computer without any additional warrants needed. The investigators must apply for a warrant to specifically search the computer.[3]

It should not be necessary to have the investigator to give details on the "basic functions" of computer storage devices. The suggestion seems to be that basic functionality of any appliance is not in need of proof.[4]

Due to the enhanced privacy interest, police must have specific authorization to seize a computer before they can search it.[5]

  1. R v Blazevic, 2011 ONSC 7549 (CanLII), at para 32, ("the police have the right to search computers with a search warrant under s. 487 of the Criminal Code to assist them in uncovering evidence associated with an offence.")
  2. see R v Weir 2001 ABCA 181 (CanLII), 156 CCC (3d) 188 (ABCA): ("While it is possible that the computer may have been at a different location than the billing address, it was not unreasonable to conclude that something as sensitive as child pornography would be kept on a computer in a person’s home.")
  3. R v Jones, 2011 ONCA 632 (CanLII)
    c.f. R v Ballendine, 2011 BCCA 221 (CanLII)
  4. R v Wonitowy, 2010 SKQB 346 (CanLII) at para 46
  5. R v Vu 2013 SCC 60 (CanLII), [2013] S.C.J. No. 60 at para 3
    R v Butters, 2014 ONCJ 228 (CanLII), at para 25 aff'd 2015 ONCA 783 (CanLII)

Manner of Search

There is no need for the computer search warrant to set out a search "protocol" to limit what can be examined in the computer.[1]

The forensic examiners should not conduct full data dumps and then given to the investigator where the search warrant limits the types of information that can be authorized to be extracted. [2]

Examiners are entitled to examine any file or folder, in at least a cursory manner, to determine whether they are likely to contain evidence of the type they are seeking.[3]

  1. Vu at para 59 ("...my view is that search protocols are not, as a general rule, constitutionally required for pre-authorization of computer searches.")
  2. R v Nurse, 2014 ONSC 5989 (CanLII)
  3. Jones at para 44

Implied Restrictions on Search

It is not permissible for police examiners to "scour the devices indiscriminately". They must "adhere to the rule that the manner of the search must be reasonable."[1]

Limitations on search are guided by the type of evidence being sought, not any particular file format or file name.[2] Limitations based on locations within the device are not practical.[3]

  1. R v Vu (SCC) at para 61
    Jones at para 42
    Fearon at para 20
    R v Nurse and Plummer, 2014 ONSC 5989 (CanLII) at paras 24, 34
  2. Jones, supra at para 43
    see also R v Rafferty, 2012 ONSC 703 (CanLII)
  3. R v Cross, 2007 CanLII 64141 (ON SC), [2007] OJ 5384 (ONSC)

Discovery of New Evidence

When executing a search warrant in relation to a certain offence and the examiner discovers evidence of another crime, the discovered evidence is admissible, but any further searches for further evidence of the new offence must be done after applying for a new warrant.[1]

  1. R v Jones, 2011 ONCA 632 (CanLII)

Child Pornography

See also: Child Pornography (Offence)

The computer search warrant of a computer permitting the examination of the computer for specific types of child pornography, does not allow the analyst to examine all images.[1] The police should be limited to images containing the keywords and associated range of dates.

For details on the issue of dated information regarding the presence of CP on a computer, see Information to Obtain a Search Warrant#Currency of Information.

  1. R v Sop, 2014 ONSC 4610 (CanLII)

Search for Data Stored Outside of Computer

There is some suggestion that s. 487(2.1) and (2.2) permits a search of a computer to include search of data stored off-site.[1]

487.
...
Operation of computer system and copying equipment
(2.1) A person authorized under this section to search a computer system in a building or place for data may

(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
(c) seize the print-out or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.

Duty of person in possession or control
(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;
(b) to obtain a hard copy of the data and to seize it; and
(c) to use or cause to be used any copying equipment at the place to make copies of the data.

...
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11.


CCC

  1. R v Vu, 2011 BCCA 536 (CanLII) at para 73 - obiter

Police Undercover Investigations

See also: Wiretaps

The seizure of historical text messages will not be considered an "interception" requiring a Part VI wiretap warrant.[1]


  1. R v Webster, 2015 BCCA 286 (CanLII)
    R v Belcourt, 2015 BCCA 126 (CanLII)
    R v Didechko, 2015 ABQB 642 (CanLII)
    R v Vader, 2016 ABQB 309 (CanLII)
    R v Rideout, 2016 CanLII 24896 (NL SCTD)
    R v Jones, 2016 ONCA 543 (CanLII)
    R v Scott, 2015 MBQB 87 (CanLII)
    c.f. R v Croft, 2015 ABQB 24 (CanLII)