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Data Extraction & Retention of Phone “Mirror Image” Can Be Perilous

September 13, 2019

Court considers use of data extraction tool and warrant requirements regarding searches of cell phones

In R. v. Sinnappillai, Boswell J of the Ontario Superior Court of Justice presided over the trial of the accused, who was charged with luring a minor for the purposes of prostitution and sexual touching. The charges in fact resulted from a sting operation in which a police officer communicated with the accused via text, indicating that “she” was a 15-year old girl and setting up a meeting at a hotel room. The “customer” texted the officer several times in the hours and minutes leading up to the meeting time, and the accused arrived at the hotel room at the appointed time. The police received a warrant to search the accused’s Samsung phone to see if it contained the matching set of text messages that the officer’s phone did. In order to do the search, a tech crimes officer hooked the phone up to a “universal forensic extraction device” (UFED), which lacked the ability to extract only a portion of the phone’s contents. The officer followed his standard practice, which was to extract all of the phone’s data (essentially creating a mirror image of the phone) and then searching the extracted data. The search revealed the text conversation and a matching call record. The tech crimes officer stored the mirror image on a secure police server.

At a later preliminary hearing, the police surmised that the accused might raise an inability to communicate in English as part of his defence. They obtained a second warrant and did a second search which turned up additional text messages. The mirror image was left on the police server, but the police did not report the results of either search as required by the warrants and the Criminal Code. The accused raised a number of arguments that neither the warrants nor s. 8 of the Charter had been complied with sufficiently, and asked that the data be excluded.

Early in the judgment, Boswell J observed:

[12]           Almost everyone is by now familiar with the amazing array of functions that modern cell phones are capable of performing.  Less people – though I suspect the number is growing – are alive to the fact that, commensurate with those functions, cell phones are repositories of immense amounts of core biographical data.  They can reveal, amongst other things, where one has been and when; who one has talked to, when, for how long and sometimes what was said; who one’s associates are; and what websites one frequents.  Cell phones are meticulous and reliable record-keepers.

[13]           Law enforcement agencies are well aware that cell phones are frequently rich sources of evidence.  Indeed, I would say anecdotally, that cell phone data now features prominently in a significant percentage of criminal cases tried before Ontario courts.  It is certainly the central feature of this case.

The judge dismissed the accused’s argument that the manner in which the searches had proceeded amounted to an unauthorized search of the entire phone. The police already had the phone in their possession after the initial seizure, and “[c]opying the hard drive before searching it gave them nothing new and did not impact on Mr. Sinnappillai’s privacy interests.” The protocol followed, which involved imaging all of the data and then searching that data, was reasonable and Charter-compliant, given that it was impliedly authorized by the justice of the peace who issued the warrant and was necessary to preserve the integrity of the data. The police were also not obliged to destroy the mirror image after the first search, as the recent decision of the Ontario Court of Appeal in R. v. Nurse dictated that the police were permitted to retain and search the phone indefinitely so long as the warrant so permitted:

To conclude that Mr. MacLean [the tech crime officer] should have created a second mirrored image and searched that, as opposed to searching the image he had already created, would be to ignore common sense and practicality.  Moreover, it would do nothing to advance Mr. Sinnappillai’s privacy concerns, since presumably the content of the second mirror image would be identical to the content of the first mirror image.  Creating a second duplication would be nothing but a redundant ‘make-work’ task for Mr. MacLean.

However, Justice Boswell agreed with the accused’s argument that the police had failed to report the results of the searches to the issuing justice as required by the warrants and the Code. The Crown argued that the police’s report to the justice upon having seized the phone was sufficient, but “significantly higher privacy interests are engaged once the police begin to look in the phone and seize data.” As an earlier case had held:

As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013 warrant constitutes a violation of s. 8 of the Charter.

Accordingly, there had been a breach of s. 8. However, Justice Boswell declined to exclude the evidence under s. 24(2) of the Charter. While the breaches were serious, there was no evidence of systemic police misconduct, and the law on the obligation to report back the results of cell phone searches was not entirely settled. The impact on the accused’s privacy was minimal, given that the police had obtained warrants for both searches and both the searches and seizures had been lawful. The evidence was reliable and important to the Crown’s case. Accordingly, the motion to exclude was dismissed.

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