R v KZ (ABQB): Second “search” of a seized computer requires a search warrant, not a general warrant

By | 2017-09-29T00:18:56+00:00 28/04/2014|Charter of Rights, Computers, Search and Seizure|0 Comments

Computer Hard DrivePolice had seized a computer pursuant to a search warrant during an investigation of an alleged attempted murder. During a forensic examination of that computer, an officer viewed an image believed to be child pornography. The examination of the computer was suspended and, ultimately, after consultations with other officers, a general warrant under the Criminal Code, s. 487.01 was sought. The information to obtain sought judicial authorization to examine the computer (and other electronic devices) using software permitting the extraction and analysis of data, relating to the offence of possession of child pornography.

The reviewing judge, Assistant Chief Judge Anderson, refused to grant a general warrant upon the initial application by police. The rejection notice indicated that the Court was concerned that a pre-requisite for the granting of a general warrant was not met. Specifically, the Court was concerned about Criminal Code s. 487.01(1)(c) which requires for the issuance of a general warrant that “there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.”

In rejecting the initial request for a general warrant, ACJ Anderson invited police to re-apply for such a warrant with the assistance of Crown counsel, at which point an in camera oral hearing would be held to consider the issue of whether a general warrant could be issued in the circumstances of the case.  That application was made and followed the procedure suggested by Assistant Chief Judge Anderson. Following the hearing, the Assistant Chief Judge dismissed the application for the issuance of the general warrant: 2013 ABPC 203 (CanLII). In brief, ACJ Anderson concluded that a Criminal Code s. 487 search warrant could be granted for a second search of the computer, noting that when a computer was not in the hands of police, such a warrant was available and “it would neither be practical nor logical to have two different procedures and forms of warrant to do the same thing, based simply on whether or not the computer is already in police control” (at para. 34).

An application for an order directing the issuance of a general warrant was made to the Court of Queen’s Bench: R v KZ, 2014 ABQB 235 (CanLII). In addition to the Crown, the Edmonton Police Service also made submissions on the application.

Section 487 allows a justice to issue a search warrant where there are reasonable grounds to believe that there is evidence (or offence-related property) in a “building, receptacle or place”. The warrant is an authorization to search the building, receptacle or place and seize the “thing” believed to be located in that place. The Crown’s argument on the application was essentially this:

  • Where police have already seized a computer, they don’t require authorization to search a place or seize the computer (which is already in their possession).
  • In the terminology of section 487, the Crown argued that a computer is a thing to be seized, not a place to be searched.
  • Accordingly, the police require a general warrant, which authorizes them to use an investigative technique in respect of the property already seized.

Justice Hughes rejected the Crown’s parsing of section 487, relying heavily upon R v Vu, 2013 SCC 60 (CanLII) and the earlier appeal and superior court decisions in British Columbia in that case. In that decision, the Supreme Court described computers as a “receptable” and “to a certain extent, a separate place”. The Court noted that, ordinarily, a search warrant is the proper form of authorization for the seizure of a computer. As noted in Vu, where a search warrant authorizes the search and seizure of a computer, the police may search the computer for evidence of the offences listed in the warrant. Justice Hughes concluded:

  • A computer is a place.
  • A second warrant to search can be issued to search such a place (i.e. a computer) when police learn of new possible offences during their initial authorized examination of the computer.
  • The fact that a forensic examination of a computer may involve an array of procedures and techniques does not change the characterization of those efforts as a “search”.

It was argued by the Crown and the Edmonton Police Service on the application that requiring a section 487 search warrant for an additional analysis of a computer already seized created several administrative difficulties. In particular, the Crown noted that the seizure of anything seized starts a 90-day window within which that thing must be brought before a justice, or a report to justice filed. The thing cannot be held beyond that initial window unless an application to extend the seizure is brought and granted. Multiple warrants to search may create conflicts with respect to when the detention period ends. Multiple warrants to search could result in police being required to file additional reports to justice.

While Justice Hughes acknowledged the practical challenges noted by the Crown, her Ladyship found these did not detract from the finding that a general warrant cannot be issued for the purpose argued by the Crown.

Image Credit: Flickr user Dijutal Tim. LicenceLink.

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