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Computer Files in Plain View: A Common Sense Approach

The Court of Appeal, in R. v. Jones,  has provided some clarity and guidance with respect to the permissible scope of the search of a computer which is seized under a valid search warrant, where such a warrant is authorized for the search of evidence in an . The Court held that the “” is applicable to where, during the course of the search, files evincing another crime are immediately recognizable. The doctrine permits the seizure of these files; however, it does not permit a further for additional files that would not have come into plain view during the course of the search authorized by the warrant.

Background

Mr. Jones was under investigation for fraud. It was alleged that the had participated in a fraudulent internet scheme involving the sale of a motorcycle and that the money order he provided was a forgery that had been computer generated.

The RCMP obtained a search warrant, the terms of which were broad. It neither limited the types of computer files that could be searched nor did it limit the search to a particular date range. Before the actual inspection of the computer files, the police analyst determined that it was necessary to search all document and image files for evidence of fraud. During his initial review, the analyst found images he believed to be child pornography, based on his past experience with such cases. Before engaging in a search for further child pornography (documents and images beyond those he was initially able to see) he received Crown advice that a further warrant to do so was not necessary. A full examination of the hard drives yielded  videos of child pornography.

Mr. Jones was charged with possession of child pornography. At trial, the trial judge excluded all of the evidence obtained holding that the search breached the defendant’s (respondent’s) rights under s. 8 of the Charter. The charges were therefore dismissed. The Crown appealed.

The principle issues for the Court were whether the search for child pornography was authorized by the terms of the warrant or, if not, whether the search was otherwise authorized in law.

The Warrant

The Court rejected the Crown arguments that because the warrant placed no restrictions on the types of files to be searched, any files were authorized by the warrant. It also rejected the defence argument that the warrant was too broad and, therefore, facially invalid. It held that while the scope of files to be searched was unrestricted, the nature of the files were not, namely, evidence of fraud.

In addressing the issue of the proper scope of the right to examine the contents of a computer, it is important to note that the Court opined that there may be valid reasons to have relatively broad scope authorizations for computer searches; however, such a search must be confined to the legitimate targets of the search for which the police have established reasonable and probable grounds. This analysis rejected the Crown argument that a computer, like any other physical object lawfully seized, is an indivisible object that may properly be searched for any “content” once in the possession of the police. Balancing privacy rights and accounting for the vast and varied amounts of information contained in a computer with the practical realities that it may be necessary to examine the entire contents of a computer even in a targeted search,  the Court held that an authorization that does not limit which files to be searched cannot be bootstrapped to permit the police to rummage through the entire computer for evidence of other crimes. The police are not entitled to roam around a computer indiscriminately, just as they would not be so entitled in a search of a home. The warrant, therefore, did not authorize the search for child pornography.

The plain view doctrine

The plain view doctrine operates when a police or peace officer, in the course of executing a lawful search – by warrant or otherwise- comes across evidence of another crime that is in plain view. It permits the officer to seize that evidence. It is an exception to the general rule that a warrantless search is unreasonable and, therefore, a violation of s. 8 of the Charter. There are restraints on this common law power:

i.         the officer must be lawfully in the place where the search is being conducted;

ii.         the nature of the evidence must be immediately apparent as constituting a criminal offence;

iii.         the evidence must be discovered inadvertently; and,

iv.         the doctrine confers a seizure power but not a search power; it is limited to those items that are clearly visible and does not to permit an exploratory search to find further evidence.

As discussed above, the Court accepted the premise that a lawful authorization of a computer to search for evidence of a particular crime may legitimately necessitate a right of access to all files on that computer, if only for a cursory review. Moreover, it rejected the argument that because information stored on a computer is not immediately accessible to the naked eye, but rather a software programme is required to facilitate access, that such files are not in plain view.

In the immediate case then, the Court found that the police, in legitimately conducting a search for evidence of fraud, unexpectedly came across image files that were immediately recognized as child pornography. This detection met the requirement of the plain view doctrine and thus the police were entitled to seize them.

The same could be not be said of the video files of child pornography. Recall that the police only found these files after the above described images were found in plain view. It was on the basis of finding those images that the police conducted a further search for additional evidence. The videos were not inadvertently found. They were located after an extensive search for child pornography, which search would not have been conducted during the legal search for evidence of fraud. The search for the video files constituted a breach of the respondent’s s.8 rights.

Section 24(2) exclusion

Applying the recently reformulated principles articulated by the in R. v. Grant, [2009] 2 SCR 353, the Court conducted an analysis as to whether the video files should be excluded, as found by the trial Judge, summarized below:

  1. Seriousness of the breach: while not trivial, it was not egregious. The police acted in good faith personally discussing with the Crown whether a further warrant was needed. Although the Crown advice turned out to be incorrect at law, the law, at the time the advice was given, was unsettled with some support for the advice. This favored inclusion.
  2. Impact of the breach: the respondent had a high reasonable expectation of privacy. This favored exclusion.
  3. Society’s interest in a trial on the merits: the interest, given the allegations, was high. The evidence was real evidence and important to the Crown’s case. This favoured inclusion.
  4. Balancing: while not a mathematical exercise, two of the three criteria favoured inclusion.

The Court admitted the video file evidence.

Significant weight was placed on the first criteria and the fact that both the police and the Crown acted in good faith. Much of that analysis turned on the fact that there had been no appellate authority at the time and the case law on the applicability of the plain view doctrine to computer searches was a rather unsettled area of the law. Given the guidance provided in this case, it is questionable whether this emphasis will be applicable in future cases.

Originally published in The Marker, September 2012 a publication of The Canadian Bar Association.

Michelle E. Booth
Affleck Greene McMurtry LLP

Michelle E. Booth

Michelle’s skills and practice expertise extend to commercial litigation, civil litigation, class actions, and employment, administrative and competition law.

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