Computer Searches

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 351-388



Computer

Searches

10

I. Dening the Computer ........................................... 

II. Computer Search Powers Under the Criminal Code .................... 

A. Section  Warrant ....................................... 

B. Is a Computer a Place or a Thing? ............................ 

C. The Requirement of Specic Authorization ..................... 

D. Seizure and (Then Later) Search: When Is a Two-Step Process

Required? ............................................... 

E. Grounds for Obtaining a Computer Search Warrant ............. 

F. Section (.) and the Long-Arm Computer Search Power ...... 

G. Extra-Territoriality of Computer Search Powers .................. 

H. Computer Searches at the Border ............................ 

I. When Is a Part VI Authorization Required? ..................... 

J. The General Warrant (Section .) ........................ 

III. Manner of Search ............................................... 

A. The Minimization Requirement .............................. 

B. Search Protocols .......................................... 

C. Implied Computer Search Powers ............................ 

D. The Timing of the Computer Search .......................... 

E. Record Keeping and Note-Taking ............................. 

IV. Warrantless Device Searches ...................................... 

A. Searches Incident to Arrest ................................. 

B. Exigent Circumstances ..................................... 

C. Consent Searches ......................................... 

D. The Plain View Doctrine .................................... 

V. Compelling Passcodes ........................................... 

A. Assistance Orders Compelling Passcodes ..................... 

VI. Summary and Conclusion ........................................ 

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Search and Seizure

Computers and other digital devices are repositories of vast amounts of private infor-

mation. Owing to their storage capacities and the nature of information stored on a

computer, they generally attract a high reasonable expectation of privacy (see Chap-

ter2). This chapter canvasses some of the specific rules and principles that govern

the search and seizure of digital devices.

I. Dening the Computer

The law of search and seizure rejects the notion that dierent rules should apply to

dierent digital devices based on slight technological dierences. “Computer,” as used

in the case law and in this volume, is defined expansively to include all digital devices.1

Many of the same principles that apply to laptop and desktop computers will apply to

mobile phones, tablets, USB keys, network servers, other digital devices, and the cloud.

1 R v Vu, 2013 SCC 60 at para 38 (“I do not distinguish, for the purposes of prior authoriza-

tion, the computers from the cellular telephone in issue here.… [P]resent day phones have

capacities that are, for our purposes, equivalent to those of computers.”). See also R v Fearon,

2014 SCC 77 at para 161, KarakatsanisJ, dissenting on other grounds (“[e]ven dumb cell

phones enable access to text message history, which can provide a transcript of years of private

conversations…, as well as pictures, call history, and contacts”).

2 Throughout this chapter, we use the term “search a computer” and “computer search” to

refer to the process of examining the data contained on a computer or device.

3 Criminal Code, s487(1).

PRACTICE POINTS

If a device is capable of storing or processing digital data—whether it be a

desktop, laptop, phone, tablet, Fitbit, USB drive, or network server—counsel

and law enforcement should presume that the rules and principles set out in this

chapter apply.

II. Computer Search Powers Under

the Criminal Code

A. Section  Warrant

To search a computer,2 the police will usually need to obtain a traditional search warrant

pursuant to section 487 of the Criminal Code. As set out in Chapter4, under section487

of the Criminal Code, where the requisite reasonable and probable grounds are estab-

lished, a justice may authorize police to search a building, receptacle, or place for the

purpose of seizing items that may aord evidence of the oence being investigated.3

Most warranted searches of digital devices will occur pursuant to section 487. Police

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter  Computer Searches 

technical crime units require a section 487 warrant even if the device was seized with-

out warrant.

B. Is a Computer a Place or a Thing?

There has been some controversy around the issue of whether a computer is a place

or a thing. The question is not merely a metaphysical one but is of some practical sig-

nificance. The distinction matters because section 487 warrants authorize the search

of a “building, receptacle or place.”4 A computer is an uncomfortable fit for any of

these categories. In a virtual sense, a computer is very much like a place.5 It is a col-

lection of vast amounts of data organized for our easy consumption into dierent

virtual folders and sub-folders. Navigating a computer and its massive electronic file

structure is very much like navigating a massive building with innumerable rooms,

floors, and hallways.

On the other hand, in a physical sense, a computer is also a thing. You can pick

it up and put it down. When it is o, it is not much dierent from other inanimate

objects. But of course, we are rarely interested in computers when they are o6—it is

the electronic information stored thereon that make them objects of interest.

While the most conceptually pure approach may be that a computer is neither a

place nor a thing, the law in Ontario has treated computers—at least for the purposes

of section 487—as things to be searched for and seized from a physical place, and

then examined for data (with some important modifications set out below).7 In other

jurisdictions, the law is unsettled. In Alberta, by contrast, police services continue to

seek a search warrant in which the computer is the place to be searched and the data

contained thereon is the thing to be seized.8

C. The Requirement of Specic Authorization

Just because a computer is a thing (as opposed to a place) does not mean that the law

of search and seizure treats it like other ordinary receptacles. If a computer were anal-

ogous to an ordinary physical storage unit—such as a filing cabinet or a desk drawer—

then an ordinary section 487 warrant authorizing the search of a place would provide

4 Ibid.

5 R v Jones, 2011 ONCA 632 at paras 47-49; Vu, supra note 1 at paras 45, 51; Fearon, supra note1

at para 51.

6 Exceptions to this general rule may arise. See R v Little, 2009 CanLII 41212, [2009] OJ No

3278 (QL) at para 148 (Sup CtJ) (where the cellphone was relevant both for its data and

because it appeared to have blood on it).

7 R v Weir, 2001 ABCA 181 at paras 18-19; R c Boudreau-Fontaine, 2010 QCCA 1108 at paras 18,

57; R v Ballendine, 2011 BCCA 221 at paras 64-70; Jones (2011), supra note 5 at paras 8, 51;

Vu, supra note 1 at para 64; R v Nurse and Plummer, 2014 ONSC 1779 at paras 1-4, 17, 26; R v

Brown, 2019 ONSC 5032 at para 13.

8 See e.g. R v Didechko, 2015 ABQB 642; R v KZ, 2014 ABQB 235.

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