Focus: Lawyers take note of R. v. Vu

The Supreme Court of Canada has issued what lawyers believe is a far-reaching decision that provides computers and cellphones with a separate distinction when it comes to search warrants.

Although the top court found officers had breached Thanh Long Vu’s rights under the Charter of Rights and Freedoms when the RCMP searched his Langley, B.C., home during an investigation of a marijuana grow operation in 2007, it declined to throw out the information they gleaned from the computers and the phone. In ordering a new trial, it found the information to obtain a search warrant properly set out the facts to look for documents identifying the owners or occupants. But it found a computer must stand alone as a separate search item.

“The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer. Computers potentially give police access to an almost unlimited universe of information,” wrote Justice Thomas Cromwell.

“The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter. . . . In effect, the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place.”

The goal, according to the court, is to strike a balance between the right to be free of state interference and the needs of law enforcement first by ensuring there’s judicial authorization prior to a search and then ensuring the activity is reasonable and no more intrusive than is necessary. Searching through someone’s computer is far different from looking through a kitchen cupboard, the court found.

Criminal lawyer David Rose, who represented the Canadian Civil Liberties Association as an intervener at the hearing, identifies R. v. Vu as the third in a trilogy of decisions that shed more light on how police and investigators should treat digital media in searches.

In Vu, police treated the computer as part of the home, but the court found investigators can’t search a computer simply because it’s there. Instead, they must explain why they want to go into a computer.

“This has far-reaching implications for digital privacy for Canadians on a day-to-day basis,” says Rose, a lawyer at Neuberger Rose LLP. “It defines a line that the police cannot cross. There’s no longer anything informal about the police search of computers.”

But Vu, he says, is part of an evolution of jurisprudence that began with R. v. Morelli in 2010, a case that first raised the issue of privacy in connection with the operation of a computer. Then came R. v. Cole two years later.

And there may well be a fourth case. The court will address matters in relation to cellphones in April.

Vu finally brings Canadian search and seizure regarding digital devices into the 21st century,” says Sam Goldstein, who had been waiting for the decision as he prepares to argue on behalf of Kevin Fearon before the Supreme Court on April 16. “I spent the entire weekend rewriting my factum because Vu changed everything. Vu really brings Canadian search and seizure law into the 21st century. The Americans are still struggling with this.”

In R. v. Fearon, the Ontario Court of Appeal determined that a simple cellphone without a password doesn’t have mini-computer capability and therefore can be part of a general search. But Goldstein maintains the devices have digital capabilities, such as phone logs, and contain personal information, including geographic locations.

While criminal law is the foundation for Vu and Fearon, lawyers expect the decisions will have an impact upon any area of law involving investigations and searches.

“The importance of the Vu decision is it’s telling all these investigators . . . that if they intend to search a computer, their warrant has to justify that,” says Jack Coop, a partner at Osler Hoskin & Harcourt LLP who focuses on environmental litigation.

The goal, he adds, is to find the balance between society’s interest in prosecuting a case with the individual’s rights to privacy. The decision offers some guidance by imposing duties on the investigators.

Guy Pinsonnault of McMillan LLP predicts the implications of the decision will apply to many areas of law.

“It has an effect on all kinds of searches on computers,” says Pinsonnault, a partner in McMillan’s competition group.
“The court says you don’t need a protocol in place.”

But in a situation where a prosecutor wanted to do a detailed search in relation to suspected economic crimes, it would be risky not to have a protocol, he adds. He expects a future decision will clarify how investigators should conduct the search.

Note: Second paragraph changed to correct error about court's finding on Charter breach.

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