A Step Forward or Just a Sidestep? Year Five of the Supreme Court of Canada in the Digital Age

Over the past five years, the Supreme Court of Canada has released a series of decisions meant to bring section 8 of the Canadian Charter of Rights and Freedoms into the Digital Age. These decisions acknowledged the unique privacy interests that people have in the information stored on their digital devices and the potential for modern technology to eviscerate privacy if the law of search and seizure does not keep pace with technological development. There is a danger, however, that recent victories for privacy in the courts will be illusory unless the courts develop additional manner of search limits on the search and seizure of digital devices. In the case of searches conducted pursuant to a search warrant, this article suggests that the only way to achieve the appropriate balance between law enforcement needs and privacy rights is for issuing justices to impose a set of search protocols that constrain and limit the scope of the search. Outside the search warrant context (i.e., where the police conduct a warrantless search of a digital device pursuant to the “search-incident-to-arrest” power), this article suggests that the only way to protect privacy interests, and to achieve meaningful after-the-fact judicial review, is to require that police electronically record all warrantless searches of digital devices