Computer-related Search Issues

• < Search and Seizure
• < Warrant Searches

General Principles

Search warrants under s. 487 are the most typical manner of authorizing an officer to examine the contents of a computer.

Warrant Issues

Single Warrant for Multiple Zones of Privacy

A residential search warrant that authorizes the seizure of computer devices for its evidential value can also operate as an judicial authorization for the examination of the device.

Due to the enhanced privacy interest, the authorization must “specific[ally]” authorize the seizure of a computer before they can search it. The authorization for the device cannot be by implication.

If a computer is found during a search under a warrant does not authorize the search of a computer, it can be seized until a computer search warrant is obtained.

The initial seizure of the device and the later forensic examination is a separate police activity.

Where a computer device is lawfully seized, the police are permitted to make a forensic copy of the data.

Search of Third Party Devices for Communications

The privacy rights follow and apply to "electronic conversations" whether or not stored on the sender's device. Accordingly, a communication, as it exists on a third-party devices, may be protected under s. 8 of the Charter.

Search of an Electronic Conversation by Consent
There is some suggestion that a conversation may be accessible by the police without warrant on consent of one of the parties to that conversation. The search of a facebook conversation with consent of one of the parties did not require a warrant.

A "Locker Warrant"

There is some division in the case law in whether proper means of authorizing the examination a device lawfully seized and stored in an evidence locker. There is a line of cases that suggest that the proper means of examining the device is to ask for a "locker warrant."

Timing of Forensic Examination

A computer held under a s. 490 warrant can be examined at any time irrespective of the time specified in the warrant.

Sufficiency of Computer Evidence

IP Address and RPG to Search
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.

Manner of Search

When searching a computer, the manner of the search must be "reasonable" and is subject to implied restrictions.

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."

The examiners should not conduct full "data dump" of the entire contents of the device and then simply give the entirety of the materials extracted to the investigator where they have the ability to narrow the scope of their search to better comply with the authorization.

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

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

Discovery of a New Offence

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.

Where a new authorization is needed, the proper procedure is to apply for a search warrant and not a general warrant.There is nothing wrong with getting a second search warrant for a device that has already been seized and searched.

Child Pornography

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. 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.

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 a search of data stored off-site.

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

Jurisdiction
Generally speaking, where data is stored in a foreign country but is readily accessible through a network within the country, the location of the original data is irrelevant.

Police Undercover Investigations

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

An undercover peace officer posing as an underage officer does not amount to an intercept.

The fact that the sender was under the mistaken belief as to the identity of the recipient does not amount an "interception".

Disclosing Passwords

It remains an open question whether it is possible to use a general warrant to compel a person to disclose their device password.

Evidence

Operation of a Computer Device
It should not be necessary to have the investigator to give details on the "basic functions" of computer storage devices. Computer devices are to be treated as appliance and so no need of need of proof is necessary to establish basic functionality.

Canadian Border Searches

There are two sources of authority for a warrantless search of an electronic device.

Section 99(1)(a) of the Customs Act states in part that:

Examination of goods
99 (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;

...
R.S., 1985, c. 1 (2nd Supp.), s. 99; 1988, c. 65, s. 79; 2001, c. 25, s. 59; 2017, c. 7, s. 52.

– Customs Act

Section 139(1) of the Immigration and Refugee Protection Act states in part that:

Search
139 (1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person

(a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or

(b) has committed, or possesses documents that may be used in the commission of, an offence referred to in section 117, 118 or 122.

...

– IRPA

"Goods" Under Customs Act

The term "goods" is defined in s. 2(1) of the Customs Act as "conveyances, animals and any document in any form." This includes information found on computers and cellphones.

This can include any data that is in "actual possession of or in accompanying baggage of traveller at time they arrive at border and commence dealings with customs officers", but does not include records stored remotely and accessible from the device.

Expectation of Privacy
International travelers have a diminished expectation of privacy while crossing international borders.

Warrantless Search of Phones
It has been found that warrantless searches of phones are permitted at borders.

It is not necessary that the border agent first form reasonable grounds before engaging in such a "routine search" of electronic devices.