Life after Vu: Manner of Computer Searches and Search Protocols

Computers have been an indispensable part of our lives for at least two decades. Given the extent of our dependency on computers and the vast amounts of information that they contain, it was inevitable that they would become the focal point of criminal investigations. The unique privacy concerns raised by computers create special challenges for search and seizure law under section 8 of the Charter. In recent years, the Supreme Court of Canada has decided several important cases dealing with the search and seizure of computers under section 8. Most recently, in R. v. Vu, the Court held that the police cannot search the contents of a computer upon executing a search warrant on the place in which the computer is found unless the warrant specifically authorizes the search of that computer. The Court also made some useful comments concerning the regulation of the manner of computer searches, including: (i) the manner of computer searches will generally be reviewed after the fact if and when a Charter challenge is brought; and (ii) in certain cases, it may be appropriate to impose search protocols (i.e., ex ante conditions spelled out in the warrant to limit the scope of the search). This paper seeks to build on the Court’s statements and imagine the post-Vu world of computer search and seizure law. The paper first summarizes Vu and the propositions for which it stands. It next takes up Vu’s invitation to carefully examine the manner of computer searches and draws on lower court decisions in an attempt to tease out some general principles to guide ex post review. It the n analyzes the issue of search protocols and when it might be appropriate — and, indeed, constitutionally required — for authorizing justices to impose such protocols before computer searches are conducted