Alberta Court of Appeal considers, applies new developments in e-device search law and procedure
In R. v. Villaroman, the Alberta Court of Appeal considered—for the second time—the case of a man acquitted at trial for possession of child pornography. The case, tried in 2012, had proceeded to the Supreme Court of Canada essentially on the basis of an issue regarding the standard of proof. By the time it returned to the Court of Appeal, the law on the search of computers had evolved significantly, particularly with the release of the Supreme Court’s 2017 decision in R. v. Marakah. A Charter voir dire regarding the original search of the appellant’s computer in 2009 had to re-considered, and the Court of Appeal invited additional submissions from counsel to assist on this issue.
The appellant had taken his computer to a shop repair, and the repair technician had noticed files which appeared to contain child pornography. A “relatively inexperienced” police officer responded to the technician’s report to the police, and obtained a general search warrant (under s. 487.01 of the Criminal Code) rather than a conventional search warrant under s. 487. He then proceeded to have the computer searched by a civilian forensic analyst, without either filing a report regarding the seizure of the computer with a Justice of the Peace (under s. 489.1) or obtaining the Justice of the Peace’s order to proceed with detention of the computer for the purpose of searching it (under s. 490). The original voir dire judge ruled that the deficiencies were technical and did not amount to breaches of s. 8 of the Charter, and the trial judge had admitted the evidence.
The judgment is something of a complex read, as the majority begins by adopting the summary of up-to-date search and seizure law provided by Berger, J.A. in his concurring reasons. That summary is worth setting out in full:
 It is now well established that one’s reasonable expectation of privacy is reduced when one takes a computer to a repair facility to be examined by a third party (see: R. v. Winchester, at para. 36; R. v. Graham, 2010 ONSC 119(CanLII) at para 25).
 The law of search and seizure of computers has undergone significant development between the search of the appellant’s computer in 2010 and this appeal. In R. v. Jones, 2011 ONCA 632 (CanLII), the Ontario Court of Appeal rejected the argument that a lawfully authorized search must be limited to particular files as this would risk frustrating reasonable police objectives of finding concealed or yet-unknown evidence of crime (at para. 43). The argument that computer searches must be executed within a specific time frame was also rejected (at para. 34).
 R. v. Vu, 2013 SCC 60 (CanLII), 302 CCC (3d) 427 [Vu], provided a framework for the search and seizure of computers. At issue was a police search of two computers while executing a warrant that authorized the search of a residence for evidence of electricity theft, as the warrant did not specifically authorize a computer search.
 The Supreme Court in ` ` held that the traditional framework for searches, in which authorization to search a residence allows police to search receptacles within the residence—such as cupboards and filing cabinets—does not apply to computers (para. 39). This finding was based on the qualitatively different privacy concerns raised by computers, which contain a potentially unlimited amount of personal information that users do not control, may not be aware of, may have tried to erase, and that is not necessarily located at the place of the search in a meaningful sense (paras. 41-45). Given the elevated privacy concerns raised by computer searches, the Supreme Court determined that computers must be treated as separate places, which require specific prior authorization to comply with s. 8. Accordingly, where police come across a computer when executing a search, they may seize the computer but must obtain a separate warrant to search the computer on the basis of reasonable grounds to believe that the computer contains evidence that the police are looking for (para. 49).
 Significantly, the Supreme Court stated that a search protocol limiting the manner of the search (e.g. what investigative techniques may be used or what content can be searched) may be appropriate in some cases, but is not, as a general rule, constitutionally required (para. 59). The Supreme Court emphasized that mandating search protocols under section 8 would introduce undue practical complications, as justices have no way to know in advance what search procedures might be necessary or to predict where probative evidence will be located in a computer. Further, this “risk of creating blind spots in an investigation,” which will undermine police objectives, will only become more serious as technology advances (para. 57). However, the Supreme Court did accept that justices have discretion to impose search protocols on police in situations where this will allow search warrants to better accord with the principles of s. 8 (para. 62).
 The following propositions emerge from the recited cases:
- Section 8 of the Charter does not require a search to be completed within a specified time frame (Jones).
- Search protocols – temporal or otherwise – are not constitutional prerequisites (Vu).
- The police computer searches on the authority of judicial authorization are compliant with an individual’s Charter-protected privacy rights provided that the authorization is framed in terms of the type of evidence sought.
- Search protocols are not mandated; doing so under s. 8 would risk “blind spots” in police investigation that would allow concealed or yet – unknown evidence to escape detection (Vu).
- Limits on content of a computer that can be searched are not constitutionally required by s. 8 (Vu). Put another way, s. 8 rights are satisfactorily protected when an authorized computer search is limited by its target – e.g. evidence of child pornography.
- Notes documenting a search of a computer should be kept by police, but are not constitutionally required (R. v. Fearon, 2014 SCC 77 (CanLII), however, makes clear that it is a constitutional imperative to take notes documenting a cell phone search incident to arrest.)
 The determination of whether there is a reasonable expectation of privacy in a given text message was again revisited by the Supreme Court on December 8, 2017 in R. v. Marakah, 2017 SCC 59 (CanLII). A majority of the Court, citing inter alia, R. v. Edwards, 1996 CanLII 255 (SCC), 1996 1 SCR 128 at paras. 31 and 45 and R. v. Spencer, 2014 SCC 43 (CanLII), 2014 2 SCR 212at paras. 16-18, confirmed that whether a claimant has a reasonable expectation of privacy must be assessed “in the totality of the circumstances.”
 The majority held that four “lines of inquiry” guide consideration of the totality of the circumstances:
- What was the subject matter of the alleged search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?
 The Court explained that “the subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission.” The Court held that reference must be made “to the nature of the privacy interests potentially compromised by the state action.” Citing Doherty, J.A. in R. v. Ward, 2012 ONCA 660 (CanLII) at para. 67, the Court endorsed the proposition that a court’s task is to determine “what the police were really after.”
The majority of the Court of Appeal adopted Berger J.A.’s summary of the applicable law. Applying Marakah, they held that the appellant had standing to bring the s. 8 challenge to the manner in which the seizure and search had been conducted: “While the appellant’s expectation of privacy was diminished to the extent that he could reasonably expect the repair technician to examine files on the computer in the course of the repairs, this operational reality does not deprive the appellant of standing to bring a claim under section 8 of the Charter… ‘nor is lack of control fatal to a privacy interest.”
The majority then held that there were breaches of s. 8, in that the officer obtained a general warrant, which was inappropriate, and did not file the s. 489 report when the computer was seized, so as to engage the s. 490 process—all of which made the search unlawful. However, they rejected an argument by the appellant that the warrant did not authorize the search because it spoke to a “forensic acquisition” of the contents of the device, since this would have been understood to be for the purposes of a search. They also rejected the argument that the technician having searched all picture and movie files on the computer (rather than just the folder where the repair tech had seen the child pornography) was excessive:
The forensic examiner limited his examination to a search for child pornography, examining all picture files and movie files on the computer. He did not go through the appellant’s mail, nor did he snoop through private records unconnected to the reasons for the search. Furthermore, while he examined the web history with respect to pictures or movies, he did not rebuild the entire web history because there was no child pornography associated. He did not go on a ‘fishing expedition’ to investigate other crimes. Videos and images depicting child pornography may be hidden throughout a hard drive, and it was not unreasonable to look for such files in other places.
The Court of Appeal ultimately refused to exclude the evidence under s. 24(2) of the Charter, on the basis that the police conduct in question had only modestly affected the appellant’s privacy rights and had been done in good faith at a time when the applicable law was uncertain.