Privacy, search and seizure

"It's a very, very good day for privacy."

Neil Cobb's case was just stuck in the ground by the Supreme Court as a marker for digital privacy law in Canada, even though he, technically, lost the case.

The Vancouver-based lawyer is the senior partner at Cobb St. Pierre Lewis, and the country's top justices just agree with him: a computer is not a filing cabinet.

Cobb has been defending Thanh Long Vu, a British Columbia resident who was arrested in 2007 for operating a marijuana grow-op in his Langley home.

Today, in a unanimous decision, the court ruled that a search of Vu's computers and cellphone breached his Section 8 rights under the Charter of Rights and Freedoms. But in the decision, written by Justice Thomas Cromwell, the court decided to admit the evidence obtained by the unlawful search, and opened the case to a new trial.

"Only a specific, prior authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search," wrote Cromwell.

When the charges first went before a judge, Vu was acquitted of three charges – two, for possessing and growing marijuana for the purposes of trafficking, and a third for theft of electricity – after the trial judge threw out critical evidence gleaned from searching Vu's two computers and cell phone. The judge ruled that the police infringed on Vu's protections against unfair search and seizure.

The judge ruled that the original warrant, for documents proving Vu's ownership or occupancy of the address, did not give them permission to search Vu's computers on the scene.

The BC Court of Appeal disagreed. It ruled that, in the warrant, police were given authority to retrieve "computer generated notes" and therefore could reasonably be expected to check Vu's computers. They ruled that the evidence should be admissible. Cobb appealed, and the top court accepted leave to appeal in early 2012. Today, that appeal was dismissed.

The two BC decisions set up the two sides of the arguments in the Supreme Court case. The Crown made the case that searching a suspect's computer is well within the scope of a search warrant on their residence.

Paul Riley, arguing for the Attorney General of Canada, told the justice that: "on a certain level, a computer search, we say, is no different than any other search of a receptacle, container, or item that might be found in a place that is subject to a search warrant."

Cobb, for his part, says computers are "stand-alone places."

The Attorney Generals for Canada, as well as interveners from Ontario and Alberta "were all singing from the same songbook," says Cobb. "[They said] it's just the same as a filing cabinet."

But, he says, there is already case law establishing that, to search a computer, you need a separate warrant -- either prior to finding the computer, or after its been seized and taken into police custody.

Paul Alexander, who runs a criminal defence practice in Toronto, intervened on the case on behalf of the Criminal Lawyers' Association. He developed an early interest in privacy law surrounding computers and cell phones. In 2009, he argued R. v. Little, where an Ontario Superior Court established that searching an accused's cellphone and computer without a warrant is a violation of their Section 8 rights.

He cited that decision in intervening in Vu's case.

"A computer is a repository of deeply personal, private information," says Alexander. He says he's "encouraged" by the Court's decision. He adds that the Supreme Court has made it very clear that there is no distinction between a cellphone and a computer.

"It's now beyond question that the privacy rights that a person has in a computer are of the highest imaginable," he says.

While Alexander says that it's a positive that the court has further enshrined the principle, he points out that there is still a test that the courts must undertake in deciding whether or not to admit evidence obtained under a search that has infringed an accused's Section 8 protections.

Namely, the judge must look at Section 24(2) of the Charter, and consider whether excluding, or including, the evidence could bring the administration of justice into disrepute. Alexander says, in this case, the justices evaluated the conduct of the police, measured the severity of the breach of Vu's rights, and weighed the evidence obtained by the unlawful search.

First, he says, "it wasn't clear to these police officers that they needed a search warrant to get into these computers," he says. It being 2007, there was little to no case law establishing protections for cell phones or computers.

Riley, riffing off of testimony from the policy officers involved in the raid, told the court that the evidence obtained from the computers dealt with proving Vu's residency at the address. He said the police "would search computers at the scene of the search...unless they were password protected. So they would conduct the search at the scene for items as listed on the warrant, which, in my submission, would be entirely appropriate."

As such, the justices ruled that the evidence could be made admissible, but underlined that, as police should now know the proper procedure around obtaining a warrant, such searches wouldn't always be tolerated in the future.

Cobb adds that if the case ever goes back to trial, he's confident of getting Vu acquitted, again. He says the Langley police force failed on two fronts to properly execute the warrant -- namely, that they failed to take notes as they search Vu's computer, and that they never made clear that they intended to search the computer.

"They're going to have a great deal of difficult getting that evidence," he says, but adds that it would be unusual for the Crown to move forward with a new trial, given that it's now nearly seven years old.

So for Cobb – and probably for Vu – it's a victory.

Both he and Alexander agree that the case will further reinforce the jurisprudence on protecting Canadians from unlawful search and seizures.

"[Vu] took one for the team," says Cobb.

Alexander says the case law on these issues has been evolving for years. After the first few cases were tried in 2009, he says it opened a "floodgate of litigation." Since 2010, he says, the highest court has been "fairly consistent" on ruling on digital privacy cases, but some of the details are still being worked out.

"There have been some controversies about the contours of where your rights begin and end," he says.

Looking forward, Alexander says the Supreme Court will soon have another chance to clarify those rights, as R. v. Fearon comes before them.

In Feburary, the Ontario Court of Appeal upheld a trial judge's ruling that a cellphone found in a search subsequent to arrest can be reasonably investigated without infringing on the accused's Section 8 rights. The Supreme Court has just granted leave for appeal.

"That's the next phase in litigation around computer and digital privacy," he says. "Today's decision foreshadows some interesting developments on that front."

But Alexander says that today's ruling was explicit, in that it would not tie the court's hands on that case.

"The Fearon case raises some interesting questions, as the law of search incident to arrest is a little bit more fuzzy than the law regarding search warrants," says Alexander.