Canadian Court Affirms Citizens Still Have An Expectation Of Privacy In Devices Being Repaired By Third Parties

A Canadian appeals court has decided in favor of greater privacy protections for Canadians. The case involves the discovery of child porn by a computer technician who was repairing the appellant's computer. This info was handed over to the police who obtained a "general warrant" to image the hard drive to scour it for incriminating evidence.

Yes, "general warrants" are still a thing in the Crown provinces. The same thing we fought against with the institution of the Fourth Amendment exists in Canada. These days, it has more in common with All Writs orders than the general warrants of the pre-Revolution days, but there's still a hint of tyrannical intent to them. (Again, much like our All Writs orders, which date back to 1789.) "General warrants" are something the government uses when the law doesn't specifically grant permission for what it would like to do:

A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) 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.

The appellant's challenge of the general warrant (rather than a more particular search warrant) almost went nowhere, but this decision grants him (and others like him) the standing to challenge the warrant in the first place. As the court notes, handing a computer over to a technician doesn't deprive the device's owner of an expectation of privacy.

In our view, the appellant had standing to argue a violation of his section 8 Charter right to be free from unreasonable search. The Crown concedes that the appellant maintained a reasonable expectation of privacy in the data stored on the computer even after delivery of his computer to the repair shop. Privacy is not an all-or-nothing concept. Allowing a technician to have physical access to the computer for the purpose of carrying out repairs does not amount to a waiver of the appellant's strong expectation of privacy vis-i-vis third parties such as the police. While the appellant's expectation of privacy was diminished to the extent that he could reasonably expect the repair technician to examine files on the computer in the course of the repairs, this operational reality does not deprive the appellant of standing to bring a claim under section 8 of the Charter.

Standing helps, but ultimately didn't help the appellant here. The court decides the failure to obtain the proper warrant is indeed a violation, but one not severe enough to trigger suppression of the evidence.

The failure to obtain an ordinary search warrant resulted in, at worst, a technical breach of the appellant's section 8 Charter rights. There was prior judicial authorization for the search even though it was obtained pursuant to the wrong section of the Criminal Code. A general warrant requires reasonable and probable grounds to believe an offence has been committed, and reasonable and probable grounds to believe the search will reveal evidence of an offence - the same standard a judge would have applied with a traditional search warrant under section 487 of the Code.

The court goes on to note the failure to follow proper procedures when obtaining the warrant (ultimately the wrong sort of warrant) was negligent. It was anything but a "trivial" breach of protocol. Even if the officer's inexperience resulted in erroneous actions, the violation is severe enough for the court to take note of. But this negligence isn't enough to overcome the inevitable outcome of the search, in the court's opinion.

In this case, however, the causal link between the forensic search of the computer's files and the violation of section 489.1 is very weak. Again, there is no reason to believe that the search of the computer's files would have unfolded any differently if the officer who seized his computer had complied with section 489.1. On this record, any justice would have authorized the initial police detention of the computer, giving the police three months in which to seek a search warrant. There was no copying of the computer's hard drive prior to the police obtaining a general warrant, which occurred within that three-month period. While the search of the computer's files undoubtedly had a very significant impact on the appellant's privacy interests, the police had sought and obtained judicial authorization prior to conducting the initial search, i.e., the forensic imaging. Although the effects of the breach were not trivial, we would not describe the impact on the appellant's Charter-protected interest, as being particularly serious"

So, while this didn't end up giving the defendant the suppression he was seeking, it did at least affirm an expectation of privacy in devices being handled and repaired by third parties. Better, the opinion contains the government's concession that this privacy expectation exists. Hopefully, this will help deter violations -- erroneous or not -- in the future.