R. v. Vu (T.L.), (2013) 451 N.R. 199 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 27, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 199 (SCC);2013 SCC 60

R. v. Vu (T.L.) (2013), 451 N.R. 199 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. NO.001

Thanh Long Vu (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Ontario, Attorney General of Alberta, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Criminal Lawyers' Association (Ontario)

(interveners)

(34687; 2013 SCC 60; 2013 CSC 60)

Indexed As: R. v. Vu (T.L.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

November 7, 2013.

Summary:

The appellant was charged with production of marijuana, possession of marijuana for the purpose of trafficking, and theft of electricity. The police had obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners and/or occupants of the residence. The warrant did not specifically refer to computers or authorize the search of computers. In the course of their search of the residence, police found marijuana and they also discovered two computers and a cellular telephone. A search of those devices led to evidence that the appellant was the occupant of the residence. The appellant claimed that those searches violated his s. 8 Charter rights and sought exclusion of the evidence found as a result.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 2012, concluded that the Information to Obtain (ITO) the search warrant did not establish reasonable grounds to believe that documentation identifying the owners and/or occupants would be found in the residence and the warrant could not authorize the search for such documents. In addition, the court found that the police were not authorized to search the personal computers and cellular telephone because those devices were not specifically mentioned in the warrant. The court excluded most of the evidence found as a result of those searches and acquitted the accused of the drug charges. The Crown appealed.

The British Columbia Court of Appeal, in a decision reported at (2011), 315 B.C.A.C. 36; 535 W.A.C. 36, set aside the acquittals and ordered a new trial. The court held that the warrant properly authorized the searches and there had been no breach of the appellant's s. 8 Charter rights. The appellant appealed.

The Supreme Court of Canada agreed with the Court of Appeal that the ITO established reasonable grounds to believe that relevant documents would be found in the residence. It followed that the warrant properly authorized a search for that sort of material. The court agreed with the trial judge that the warrant did not authorize the search of the computers and cellular telephone. However, the court concluded that the trial judge was wrong to exclude the evidence found as a result. The court therefore dismissed the appeal and upheld the order of the Court of Appeal setting aside the acquittals and directing a new trial.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - [See first Civil Rights - Topic 1524 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first Civil Rights - Topic 1524 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - The Supreme Court of Canada stated that "... privacy interests in computers are different - markedly so - from privacy interests in other receptacles that are typically found in a place for which a search may be authorized. For this reason, I do not accept that a justice who has considered the privacy interests arising from the search of a place should be assumed to have properly considered the particular interests that could be compromised by a computer search. The distinctive privacy concerns that are at stake when a computer is searched must be considered in light of the purposes of s. 8 of the Charter. This calls for a specific assessment of 'whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement': ... That is the threshold demanded by s. 8 of the Charter. Only a specific 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. Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. ... If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant" - See paragraphs 47 to 49.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - The appellant was charged with production of marijuana, possession of marijuana for the purpose of trafficking, and theft of electricity - The police had obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners and/or occupants of the residence - The warrant did not specifically refer to computers or authorize the search of computers - In the course of their search of the residence, police found marijuana and they also discovered two computers and a cellular telephone - A search of those devices led to evidence that the appellant was the occupant of the residence - The trial judge found, inter alia, that the police were not authorized to search the personal computers and cellular telephone because those devices were not specifically mentioned in the warrant - The judge excluded most of the evidence found as a result of those searches and acquitted the appellant of the drug charges - The Supreme Court of Canada agreed with the trial judge that the warrant did not authorize the search of the computers and cellular telephone and that computer searches required specific, prior authorization - However, balancing the factors in R. v. Grant (SCC), the court concluded that the evidence should not be excluded - The police believed on reasonable grounds that the search of the computer was authorized by the warrant - The search did not step outside the purposes for which the warrant had been issued and it did not include forensic examination - The evidence obtained was reliable, real evidence which was important to the adjudication of the charges on their merits - See paragraphs 46 to 52 and 65 to 74.

Civil Rights - Topic 1524

Property - Personal property- Search and seizure by police (incl. computers or cellphones) - The police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners and/or occupants of the residence - The warrant did not specifically refer to computers or authorize the search of computers - In the course of their search of the residence, police found marijuana and they also discovered two computers and a cellular telephone - A search of those devices led to evidence that the appellant was the occupant of the residence - The Supreme Court of Canada held that computer searches required specific, prior authorization - The court further stated that "Although I find that specific, prior authorization was necessary before police could search the devices found within the appellant's residence, I would not accept one of the intervener's submissions that the authorizing justice was required, in this case, to impose a search protocol in advance with conditions limiting the manner of search. While such conditions may be appropriate in some cases, they are not, as a general rule, constitutionally required and were not, in my view, required in this case" - See paragraphs 25 and 53 to 62.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - The Supreme Court of Canada held that computer searches required specific, prior authorization - The court did not distinguish, for the purposes of prior authorization, the computers from the cellular telephone in issue in the case before it - Present day phones had capacities that were equivalent to computers - See paragraph 38.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - The Supreme Court of Canada held that computer searches required specific, prior authorization - With respect to the scope of the court's reasons, the court stated that "It is not my intention to create a regime that applies to all computers or cellular telephones that police come across in their investigations, regardless of context. ... police may discover computers in a range of situations and it will not always be appropriate to require specific, prior judicial authorization before they can search those devices. For example, I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular phone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized. ...While the scope of these reasons is restricted to warranted searches of a place, they apply equally to all computers found within a place with respect to which a search warrant has been issued. ... I find no reason, for the purposes of prior authorization, to treat computers differently on the basis of the particular use to which they have been put" - See paragraphs 63 and 64.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Criminal Law - Topic 3113 ].

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - [See all Criminal Law - Topic 1524 ].

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information - [See second Civil Rights - Topic 1524 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See second Civil Rights - Topic 1524 ].

Civil Rights - Topic 1655.2

Property - Search and seizure - Warrantless search and seizure - Computers - [See second and fifth Civil Rights - Topic 1524 ].

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - [See second and fifth Civil Rights - Topic 1524 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 1524 ].

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See second Civil Rights - Topic 1524 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Criminal Law - Topic 3113 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation identifying the owners and/or occupants of the residence - In the course of their search of the residence, police found marijuana and they also discovered two computers and a cellular telephone - A search of those devices led to evidence that the appellant was the occupant of the residence - The trial judge concluded that the Information to Obtain (ITO) the search warrant did not establish reasonable grounds to believe that documentation identifying the owners and/or occupants would be found in the residence and so the warrant could not authorize the search for such documents - The Supreme Court of Canada held that the facts provided in the ITO were sufficient to support a reasonable inference on the part of the issuing justice that documentation evidencing ownership or occupancy would be found in the residence - The trial judge, in concluding otherwise, did not show sufficient deference to the issuing justice's assessment of the evidence - The court stated that "The question for the reviewing judge is 'whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge' ... In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious: ... it is a reasonable inference that a residence would be the place to look for documents evidencing ownership or occupation. ... Moreover, I think that the authorizing justice could reasonably infer that a place was being occupied as a residence from the fact that electricity was being consumed at that place and that it had an owner. I therefore conclude that the authorizing justice could lawfully issue the warrant to search for documents evidencing ownership or occupation of the property. The search for such material did not breach the appellant's rights under s. 8 of the Charter" - See paragraphs 9 to 18.

Cases Noticed:

R. v. Araujo (A.) et al., [2002] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 16].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 16].

R. v. Shiers (J.G.) (2003), 219 N.S.R.(2d) 196; 692 A.P.R. 196; 2003 NSCA 138, refd to. [para. 16].

R. v. Sanchez (1994), 93 C.C.C.(3d) 357 (Ont. Gen. Div.), refd to. [para. 16].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 16].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, appld. [para. 22].

R. v. E. Star International Inc., 2009 ONCJ 576, refd to. [para. 39].

BGI Atlantic Inc. et al. v. Canada (Minister of Fisheries and Oceans) (2004), 241 Nfld. & P.E.I.R. 206; 716 A.P.R. 206; 2004 NLSCTD 165, refd to. [para. 39].

R. v. Charles (A.), [2012] O.T.C. Uned. 2001; 258 C.R.R.(2d) 33; 2012 ONSC 2001, refd to. [para. 39].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 435 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 40].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 41].

R. v. Mohamad (H.) (2004), 181 O.A.C. 201; 69 O.R.(3d) 481 (C.A.), refd to. [para. 41].

R. v. Boudreau-Fontaine, 2010 QCCA 1108, refd to. [para. 55].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 55].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General) (2002), 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 56].

United States v. Carey (1999), 172 F.3d 1268 (10th Cir.), refd to. [para. 58].

United States v. Burgess (2009), 576 F.3d 1076 (10th Cir.), refd to. [para. 58].

United States v. Christie, 2013 U.S. App. LEXIS 11704, refd to. [para. 58].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 67].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 68].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 5]; sect. 24(2) [para. 66].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487, sect. 487.1[para. 56]; sect. 487(2.1), sect. 487(2.2) [para. 48].

Authors and Works Noticed:

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (8th Ed. 2010), p. 1181 [paras. 39, 44].

Gold, Alan D., Applying Section 8 in the Digital World: Seizures and Searches, Paper prepared for the Law Society of Upper Canada 5th Annual Six-Minute Criminal Defence Lawyer, June 9, 2007, paras. 3 [para. 40]; 6 [para. 42].

Kerr, Orin S., Ex Ante Regulation of Computer Search and Seizure (2010), 96 Va. L. Rev. 1241, p. 1277 [para. 58].

Kerr, Orin S., Searches and Seizures in a Digital World (2005), 119 Harv. L. Rev. 531, pp. 542 [paras. 42, 43]; 543 [para. 42].

LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (5th Ed. 2012), vol. 2, pp. 968, 969 [para. 58].

Robinton, Lily R., Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence (2010), 12 Yale J.L. & Tech. 311, pp. 321, 322 [para. 41].

Counsel:

Neil L. Cobb, Elizabeth P. Lewis and Nancy Seto, for the appellant;

W. Paul Riley and Martha M. Devlin, Q.C., for the respondent;

Michal Fairburn and Lisa Henderson, for the intervener, Attorney General of Ontario;

Jolaine Antonio, for the intervener, the Attorney General of Alberta;

Nader R. Hasan and Gerald J. Chan, for the intervener, the British Columbia Civil Liberties Association;

David S. Rose and Allan Manson, for the intervener, the Canadian Civil Liberties Association;

Paul J.I. Alexander, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Cobb St-Pierre Lewis, Vancouver, British Columbia, for the appellant;

Public Prosecution Service of Canada, Vancouver, British Columbia, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

Ruby Shiller Chan Hasan, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Neuberger Rose, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Rosen Naster, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on March 27, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Cromwell, J., in both official languages on November 7, 2013.