Limits respecting the enhanced privacy interest to be incorporated into warrant
The Saskatchewan Provincial Court has commented on the requirements for warrants to search cell phones with the decision in Re A. The general tenor of the decision was to insist that such warrants had to be carefully tailored to the specific circumstances of the search in question, rather than be issued on a “cookie-cutter” basis.
A, who was 21, had been in a sexual relationship with C, who was only 15. Interviews with both A and C had led the police to believe that there were or had been nude photographs of C on A’s cell phone, which was in the hands of the police: as a result, the police were seeking a warrant to search the phone. The application judge granted a warrant, but not in the terms that had been requested. Rather, the judge granted a much more limited warrant.
The judge noted that the Supreme Court of Canada, with its decisions in R v Vu and R v Fearon, had stressed the significant privacy interest which existed in computers and cell phones. That privacy interest, the judge held, had to be respected in seeking a search warrant.
Here, the police had sought a warrant aimed at obtaining access to all the data on the cell phone, and identified three purposes justifying this broad access: to corroborate the information of the officer who viewed and seized the device; to look for the presence of child pornography, and; to determine ownership of the phone. The judge noted that there was no evidence any officer had, in fact, viewed the device, and so that purpose was irrelevant. Similarly, ownership of the phone had already been conceded, and so that purpose was unnecessary. It was really only the middle purpose, to look for child pornography, which justified a search.
That purpose, the judge held, did not justify a search of the entire contents. The police knew, or could determine, the specific apps which had been used by A and C to communicate, and were therefore the medium by which any pictures would have been sent. The judge noted:
 Perhaps simplistically, it would seem that all the police have to do is look at those programs or apps. Depending on what they find, they might need to see if they can recover deleted communications and photographs.
In fact it appeared that the Information to Obtain contained a great deal of boiler plate language. It talked about determining the time and date that videos were downloaded from the web, although there was in fact no suggestion that any videos had been downloaded. It talked about determining what web pages had been created from the device, though again there was no evidence of any web pages being created. It also talked about the fact that a file name can be changed to disguise the fact that it is a photo file, without acknowledging that this would be true of files stored on a computer but not, in all likelihood, of those stored on A’s cell phone.
In this case, the judge held that only a narrow search should be permitted, with the police having the ability to seek a further warrant if that did not turn up the particular pictures sought. The judge also required that the limits on the nature of the search needed to be reflected in the warrant itself. When police search a home, the judge observed, the home-owner has some ability to know what was actually searched, since it will often be apparent from the process of searching itself. With an electronic device, however, there is no way for the individual to be able to tell what kind of search was conducted: that difference makes it more important that the warrant set out some limits or guidance, so that the individual has a basis for asking questions about what the police have done.