The Legacy of Regina v. Vu, 2013 SCC 60: An Assessment of the Supreme Court of Canada’s Foray into the Area of Privacy Rights Inherent in Personal Computer Devices Prepared For: Legal Education Society of Alberta Search Warrants Presented by: Neil Cobb Cobb St. Pierre Lewis North Vancouver, British Columbia For Presentation in: Edmonton – February 19, 2016 Calgary – February 26, 2016 THE LEGACY OF REGINA V. VU, 2013 SCC 60: AN ASSESSMENT OF THE SUPREME COURT OF CANADA’S FORAY INTO THE AREA OF PRIVACY RIGHTS INHERENT IN PERSONAL COMPUTER DEVICES INTRODUCTION It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer. First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generally by design, but sometimes by accident. Mr. Justice Morris Fish, in Regina v. Urban Morelli1 The Christmas dinner dishes had barely been cleared and the leftover turkey started in on when, on December 28, 2011, British Columbians learned that they had a lot less privacy rights in the contents of their cellular telephones and personal computers than they might have reasonably thought in the aftermath of the Supreme Court of Canada’s year-old decision in Morelli. In fact, in what was something of a startling turnabout from a burgeoning, Canada-wide body of jurisprudence acknowledging enhanced expectations of privacy in computer devices2, a unanimous three-justice panel of the British Columbia Court of Appeal ruled that computer devices are really just like ‘the drawers in a desk or filing cabinet’ and could be rifled through by police officers lawfully executing a search warrant for the place in which those devices just happen to be situate3. In its 9-0 decision in the British Columbia case of Regina v. Long Thanh Vu4, released in early November of 2013, the Supreme Court of Canada demonstrated, yet again, a continued commitment to an expanded notion of “privacy” that British Columbia and, indeed, all Canadians enjoy in their computer devices and their cybernetic/digital contents. Continuing the trend which began with the deeply divided panel in Regina v. Morelli5, and which continued with the near- 1 2010 SCC 8 2 R. v. Mohamad (2004), 182 C.C.C. (3d) 97 (ON C.A.)R. v Polius, [2009] O.J. No. 3074, R v. Little, [2009] O.J. No. 3278 and R. v. D'Annunzio, [2010] O.J. No. 433; R. v. Liew, [2012] O.J. No. 1365 and 2501; R. v. Manley, [2011] O.J. No. 642; Regina v. Cater, 2012 NSPC 2; Regina v. Cole 2012 SCC 53, rev’g 2011 ONCA 218; 3 2011 BCCA 2487, especially at paragraph 63. 4 Regina v. Vu 2013 SCC 60 5 2010 S.C.J. No. 32 1 unanimous and plurality decisions in Regina v. Cole6 and Telus Communications7, the nine-member panel in Vu made it abundantly clear that “old-school” search and seizure concepts are utterly incompatible with the layered and complex privacy interests imbedded in the computer devices which, in turn, have become so entrenched in the very fabric of Canadian society in the 21st Century. The purpose of this paper and related presentation is to provide an outline of the more salient privacy-related aspects of the Supreme Court of Canada’s decision in Vu, to identify and discuss some of subsequent decisions in the realm of computer privacy and, finally, to highlight from a more practical perspective some of the challenges faced by counsel dealing with these evolving technological issues in the context of a criminal trial, including the need for the police to make comprehensive and contemporaneous notes about the manner in which any computer device is searched. The Conclusion, of course, comes at the end. THE LEGAL HIGHLIGHTS FROM REGINA V. VU The decision in Vu will probably be most remembered for its aforementioned outright rejection of the B.C. Court of Appeal suggestion that computers were really like drawers in a desk or filing cabinet and thus susceptible to the most thorough of searches by police officers who are lawfully in the place where the computers are found8. Three of the top appellate counsel in Canada espoused this viewpoint on behalf of separate Attorneys-General at the hearing last March9; this viewpoint itself was originally articulated by Mr. Justice Frankel for the B.C. Court of Appeal—himself one of the all- time great appellate lawyers in his days as P.P.S.C. (then known as the Department of Justice) counsel who had appeared on several important cases in a career which spanned the first three decades of the Canadian Charter of Rights and Freedoms. This incredible array of talent notwithstanding, the Court was less than terse in rejecting this anachronistic approach10 and gave four reasons for so ruling: 6 2012 SCC 53 7 2013 SCC 16 8 Please see, in particular the comments at paragraphs 61 through 64 of the BCCA ruling, [2011] B.C.J. No. 2487. 9 Michal Fairburn, QC and Lisa Henderson (for the A.G.-Ontario) and Jolaine Antonio (for the A.G.-Alberta) appeared as Interveners and argued strenuously in support of this position, advanced with customary excellence by counsel for the principal Respondent, the A.G.-Canada, Paul Riley and Martha Devlin, QC. With three separate interveners appearing in support of the Appellant’s position, no less than eight (8) sets of oral submissions had to be crammed into a four hour oral hearing on March 27th, 2013. As if that weren’t bad enough, the Court chose the 9:30 a.m. start time of Appellant’s oral submissions to release its reserved reasons in the seminal Telus Communications case, supra., note 4., setting the scene for a Canadian first: underscoring in a way words never could the true ubiquitousness of computers in our world, counsel for the intervening Criminal Lawyers’ Association of Ontario (Paul J.I. Alexander) strode to the dais and read a passage from Telus that he had downloaded in the Hearing Room. 10 Please see Vu, supra, note 1 at paragraphs 40-44. 2 (i) the fact that computers store immense amounts of intensively private, “core” information, “[t]he scale and variety of this material makes comparison with traditional storage receptacles unrealistic”;11 (ii) quoting Canadian privacy rights icon Alan D. Gold QC’s reference to the computer as a “fastidious record keeper”, the Court expressly noted that such computer concepts as ‘meta- data’ and web-browsing histories are sure to be rummaged through by searching police: “[t]his kind of information has no analogue in the physical world in which other types of receptacles are found;”12 (iii) the fact that computers not only generate information and records unbeknownst to their owners and users, but retain even that which those persons attempt to erase, “make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past”; and finally (iv) referencing computers both linked to the internet and to networks, the Supreme Court of Canada pointed out that, unlike the papers or other items in a filing cabinet or desk, this ‘old- school’ search precept would give police not only access to the things on the computer itself but also “to information and documents that are not in any meaningful sense at the location for which the search is authorized.” Thus it would appear that Vu’s primary legacy will be found in the Court using these four points urged upon them by the Appellant and the ‘non-Crown’ Interveners13 to do away with the computer as “desk-drawer” mindset: [45] These numerous and striking differences between computers and traditional “receptacles” call for distinctive treatment under s. 8 of the Charter. The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.14 Although the panel, and in particular Mr. Justice LeBel were quite animated during oral submissions on the subject of what form the required search warrants should take, the decision expressly 11 Quoting (from the factums filed in support of the Appellant) such diverse and somewhat non-traditional authorities as Alan D. Gold QC’s, "Applying Section 8 in the Digital World: Seizures and Searches”, a paper prepared for the Law Society of Upper Canada 5th Annual Six-Minute Criminal Defence Lawyer Symposium, June 9, 2007 and "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 at pp. 321-22. 12 Vu, supra, at paragraph 42. 13 Nader R. Hasan and Gerald J. Chan, for the intervener the British Columbia Civil Liberties Association; David S. Rose and Professor Allan Manson, for the intervener the Canadian Civil Liberties Association; and Paul J. I. Alexander, for the intervener the Criminal Lawyers’ Association (Ontario). 14 “ex ante provisions” or “search protocols” as they are sometimes referred to were discussed at some length in Vu, supra at paragraphs 53-62, inclusive. The Court ultimately declined to rule that they were a requirement, leaving the matter for determination later, or on a case-by-case basis: Paragraph 59 of Vu 3 declined to address that touchy subject matter; but the Court did take the opportunity presented by Vu to address a number of other related issues on computer searches. Ex Post Facto Review Alone Is Not Good Enough Perhaps the most dangerous argument advanced by the Crown in Vu, is that there was no need to treat computer devices as “different” than other places to be searched, because any computer search could be reviewed ‘after the fact’ and its reasonableness thereby assessed, if not assured. Fortunately for privacy-loving Canadians, this was an argument that the Crown was required to advance on the worst possible set of facts15. But of course there was a bigger problem with such an approach: section 8 Charter jurisprudence has long had as one of its fundamental and most sacrosanct tenets the requirement of “prior judicial authorization”. The Supreme Court put it this way back in the first search and seizure case to reach its doors16 in the earliest days of Charter litigation: If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference. I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure. Could, as the three Attorneys-general collectively submitted in Vu, computers that are simply happened upon by police in the conduct of an otherwise valid search be searched themselves and 15 Please see the “manner of search” discussions below at pages 7-9 and 17-18. 16 Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160 et. seq.. 4 the “reasonableness of the search” simply assessed later? Again, this position was given very short shrift by the Court in Vu:17 50 The Crown and intervening Attorneys General submit that specific, prior authorization to search computers is not necessary because an after-the-fact review of the manner in which a search is conducted provides sufficient protection for the privacy rights that are at stake when a computer is searched. I disagree. 51 As I explained above, if computers give rise to particular privacy interests that distinguish them from other receptacles typically found in a place, then s. 8 requires those interests to be taken into account before the search takes place, not just after-the-fact, in order to ensure that the state's interest in conducting the search justifies the intrusion into individual privacy. In effect, the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place. Manner of Search is Crucial with Computers It has, of course, long been one of the fundamental pre-requisites of a validly authorized search that it be carried out in a reasonable manner18. The Supreme Court in Vu made it abundantly clear that where the place searched is a computer, that requirement will take on an added significance. According to the court in Vu, the police must not only conduct computer searches in a reasonable fashion, the general duty to take reasonably contemporaneous and comprehensive notes will take on an added significance (as will be discussed in greater depth below). Based on the early post-Vu returns, this may well turn out to be the decision’s biggest impact on the privacy rights all Canadians enjoy in their computer devices. The Manner of Search Problems in Vu One thing that will never be known is the effect that the actual facts of the Vu investigation had on the Supreme Court of Canada’s approach to the various issues raised by the appeal; it may well have been the biggest single factor in the original decision to grant leave and not wait for the ‘better set of facts’ the Court generally looks for in Charter cases. What can be stated with some certainty, however, is that it cannot have assisted the Crown in advancing their “after the fact review will always be sufficient” argument, to have to do so on the conduct of the R.C.M.P. search team members in Vu. To be perfectly frank, that conduct was little short of horrifying. A cursory reading of the trial and B.C. Court of Appeal19 decisions might leave one with the impression that defence counsel did a poor job on the crucial issue of laying the appropriate factual 17 Vu, supra, at paragraphs 50-1. 18 R. v. Collins, [1987] S.C.J. No. 15 19 [2011] B.C.J. No. 2487, at paras. 11-18 and 71-74. 5 foundation in the trial record for the Charter relief sought20. Nothing, in fact, could be further from the truth. The actual source of any “gaps” or lacunae in the trial evidence regarding the ‘manner of search’ was the by-product of the conduct of the R.C.M.P. unit on this case which, as will be seen, left defence counsel with virtually no pre-trial disclosure of the crucial facts surrounding the computer searches conducted. What was worse, it left the police search team members in a very bad way, as well when those “gaps” were laid bare in the trial record. The two officers involved in the searching of the computers and cellphone in Long Thanh Vu, took virtually no notes of precisely, or even approximately, what they did to conduct the searches. Not surprisingly, the trial evidence of these crucial witnesses was littered with “do not recalls” and “cannot remembers” when they were asked questions designed to establish the extent, the breadth and the width of their invasion of the accused’s privacy. In fact, the Sergeant whose job it was to actually supervise the search team testified, apologetically, in B.C. Supreme Court for following a practice he had developed of intentionally taking no notes so that he would be less likely to be called in to testify. To say that this conduct did not sit well with the Supreme Court of Canada is to put the matter mildly:21 69 […]The Langley department had a policy of searching computers found on premises and there was no clear law prohibiting them from doing so. Indeed, the trial judge found that, "the officers carried out the search in the belief that they were acting under the lawful authority of the warrant granted by the justice": voir dire decision, at para. 77. This case should serve to clarify the law on this point and prevent this kind of confusion in the future. 20 In the Court of Appeal ruling the following interpretation was placed on the trial evidence: 72 I will deal first with the laptop computer which Constable George searched for files containing photographs and documents. As those are the types of files that could contain information as to who was using that computer and, therefore, assist in determining who was in control of the premises, that search was authorized by the warrant. Similarly, the MSN Messenger and Facebook pages which were running fall within the type of "documentation" covered by the warrant. 73 A further word about the MSN Message and Facebook pages is necessary. Having read Constable George's testimony it is not clear to me whether he clicked on separate icons displayed at the bottom of the laptop's monitor to open each of those pages, or whether, because the MSN Messenger page was visible as soon as the monitor was activated, he only had to click on the Facebook icon. The trial judge appears to have found that Constable George opened both pages by clicking on their respective ions: para. 19. However, in light of the fact that both programs were running, whether an icon had to be clicked to make an active page visible is of no significance. I hasten to add, however, that given the dearth of evidence regarding the technical aspects of how either MSN Messenger or Facebook operate, nothing in these reasons should be taken as having decided whether Constable George could have looked for further information accessible through the active pages, e.g., by accessing portions of the Facebook page that were not already loaded on the computer. […] 74 Turning to the cellular telephone, Constable Carter examined it to determine its number and to see what photographs it contained. Again, those items fall within the types of "documentation" covered by the warrant. Although Constable Carter was unable to recall exactly how he accessed the number and photograph, there is no suggestion that he examined the telephone for any other purpose or examined other types of electronically-stored information. 21 Paragraphs 69-70. 6 70 That said, there are two somewhat disquieting aspects of the search of the computer. First, Sgt. Wilde admitted in his testimony that he intentionally did not take notes during the search so he would not have to testify about the details. This is clearly improper and cannot be condoned. Although I do not decide here that they are a constitutional pre-requisite, notes of how a search is conducted should, in my view, be kept, absent unusual or exigent circumstances. Notes are particularly desirable when searches of computers are involved because police may not be able to recall the details of how they proceeded with the search. These remarks, it will be seen below, are most certainly resonating with trial Courts faced with what appears to be an ever-increasing frequency, manner of search issues in criminal cases where cellphones and computers have been scoured by police for evidence. The extraordinary implications of this emerging judicial recognition of the police duty to take fulsome and contemporaneous notes is beyond the scope of this paper, but it bears noting that Mr. Justice Cromwell’s comments above have already been quoted with approval in a subsequent Supreme Court of Canada decision22 and will be discussed in the final section of this paper. Cellphones and Security Camera Computers ARE Computers The Supreme Court in Vu was supplied by all counsel arguing for an expansive interpretation of privacy rights in computers with a wide variety of both judicial and extra-judicial musings on the functioning of computers and cellphones. And while the Court elected not to expressly mention our own personal favourite,23 the following passage makes it quite clear that this stratagem worked and that the information plainly struck a chord with the justices and their myriad law clerks assembled in the wifi-equipped Hearing Room on Parliament Hill:24 41 First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic. We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "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 at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location. As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 69 O.R. (3d) 481, at para. 43. 22 Wood v. Schaeffer 2013 SCC 71 at paragraph 63 23 In Kerr, Orin S. "Searches and Seizures in a Digital World", 119 Harvard Law Review 531 (2005). the ubiquitous $75 “dumb-phone” is identified as having, from a printed page perspective, ‘the storage capacity of a six-storey law library’. 24 Vu, supra note 1 at paragraph 41 7 The ruling in Vu would also appear to bring to close the debate that had festered in the case law for some time as to whether cell phones were really “computers” at all. Mr. Justice Cromwell put the matter this way for the Court25: 38 I do not distinguish, for the purposes of prior authorization, the computers from the cellular telephone in issue here. Although historically cellular phones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers. The trial judge found that the cell phone in this case, for example, had a "memory capacity akin to a computer": voir dire decision, at para. 65. In these reasons, then, when I referred to "computers", I include within that term the cellular telephone. Counsel on such cases in the near future, however, would be wise to consider papering the record with admissible evidence as to both the storage capacity and the functionality and features with which their particular computer devices are equipped. It was the learned trial judge in Vu who, in true Solomon-like fashion, severed the computer displaying the live security-camera images from the computer and cell-phone rummaged through by the ham-handed police officers, finding a reasonable expectation of privacy only in the latter26. The Supreme Court of Canada reversed this lower court finding in favour of the searching officers too, holding that all three computers were equally incapable of being searched in any fashion until a warrant authorizing same had been secured. The practical implications of this tiny part of the Vu decision cannot be overlooked. If a computer which is linked up to a security camera and actively displaying images of a driveway and public roadway to the lawfully present peace officers cannot be searched without a warrant, the privacy bar has been set by our highest Court at a truly remarkable level. Internet Accessibility Attracts Special Section 8 Protection In attempting to overturn as “outdated” the British Columbia Court of Appeal’s ruling that computers and cellphones are really just like any other “place” to be searched, it was incumbent upon us as counsel to make the most of what little the searching police officers could recall doing in their ham- handed efforts. Who would have thought that so much could be accomplished in a Court setting by sheer reference to such entities as “MSN Messenger” and “Facebook”? 25 Ibid, at paragraph 38. 26 2010 BCSC 2012 8 When one considers, however, the question of “where” one is searching when they comb through a person’s email or social networking site looking for evidence, the utility of these concepts became readily apparent to us and, in turn, the Court:27 [W]hen connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized. In oral argument before the Court in Vu, it was Madam Justice Karakatsanis (who had authored the Ontario Court of Appeal decision which found a section 8 privacy interest for a teacher in his school- board owned and issued laptop) who was particularly interested in the intrusiveness of the searching officers’ combing through the Mr. Vu’s Facebook and other social networking accounts. Mr. Justice Fish’s comments in Morelli about our “cybernetic peregrinations” and a computer’s metadata A LOOK FORWARD Of course it did not take much time for the decision in Vu to generate its share of “spin-off” litigation. In fact, one of the presenters at this conference had reserved judgement on a computer search issue in one case and was provided with additional submissions from Crown and defence counsel following the release of the decision28. Searches of Computers Truly Incidental to Arrest Of course, not all computer searches occur as a result of the execution of a search warrant like the one which was at play in Vu. In point of fact, one of the most common forms of search in our criminal justice system are the searches carried out countless times a day across our country and referred to collectively by the acronym SITA for ‘search incident to arrest’. After Vu had been argued and judgment was reserved, the Court allowed an application for leave to appeal from the Ontario Court of Appeal decision in Regina v. Fearon 2013 ONCA 106. The Supreme Court’s decision in Fearon came down on December 11, 2014, and has been ably dissected elsewhere. For the purposes of this paper and presentation, it is interesting to note that some trial and appellate Courts 27 Vu at paragraph 44. 28Regina v. K.Z., 2014 ABQB 235 per Hughes, J. 9