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Top court to rule on search, seizure of electronic devices

An upcoming hearing before the Supreme Court of Canada on the scope of police authority to search electronic devices as part of a warrant will highlight how courts nationally are adapting to the digital age, says Toronto criminal lawyer David Rose.

“Comparing a computer to a filing cabinet is like comparing a new car to a horse and buggy. The similarities don't mean much and the differences mean a lot,” says Rose, counsel to the Canadian Civil Liberties Association, an intervener in R. v. Thanh Long VuRead Appellant FactumRead Respondent FactumRead Intervener Factum

“This appeal is about whether the state may lawfully search, and then seize for further investigation, a computer from a dwelling under the authority of a search warrant which authorizes the police only to search for documents,” the intervener factum says.

“Must a search warrant name a computer as an item to be searched and/or seized in order to do that? The Intervener Canadian Civil Liberties Association respectfully submits that the answer must be yes.”

The case also gives the top court a chance to rule on the practical application of traditional search powers to electronic devices, such as computers and cellphones, in the “technological age,” the intervener factum reads.

“Judges and lawyers could not have foreseen the challenge of electronic data privacy when much of our search and seizure jurisprudence was developed, and when much of our private information was held in filing cabinets, briefcases and rolodexes.”

In September 2007, a warrant was issued in relation to an alleged theft of electricity at a home in Langley, B.C., and upon entry, the police discovered marijuana growing in the basement of the property, as well as two laptop computers and a cellphone in the living room, a summary of the case reads.

Examination of the electronic devices yielded information on the accused, leading to Thanh Long Vu’s subsequent arrest on charges of production of marijuana and possession of marijuana for the purpose of trafficking, it continues.

A trial judge determined that evidence obtained from the search of one of the laptops and from the search of the cellphone was inadmissible as it resulted from an unreasonable search and seizure in violation of s. 8 of the Charter, and should be excluded pursuant to s. 24(2) of the Charter, the respondent factum says, noting the accused was acquitted on all counts.

A later British Columbia Court of Appeal ruling found that none of the evidence should have been excluded; it set aside the acquittal, and ordered a new trial, the factum continues.

The Supreme Court hearing, scheduled for March 27, will consider whether the Court of Appeal erred by concluding that the trial judge had failed to correctly apply the legal test for reviewing the issuance of a search warrant.

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