2017 SKPC 90, 2017 SKPC 90

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 090 Date: October 30, 2017 Location: Saskatoon _____________________________________________________________________________ Re A and C EX PARTE APPLICATION PURSUANT TO s. 487(1) OF THE CRIMINAL CODE Q.D. AGNEW , J [ 1 ] This is an application for a warrant to search the contents of a cell phone. According to the Information, A at all relevant times was 21 years of age, and C was 15. A and C were at the relevant times in a sexual relationship.

A has been arrested on charges of sexual interference and sexual assault, arising from the age discrepancy between them. As a result of interviews with A and C, the police believe that there are or have been nude photographs of C on A’s cell phone. Due to C’s age, such photographs might constitute child pornography: information from A and C suggests this possibility. [ 2 ] The police have therefore sought a search warrant to search the digital content of the cell phone, whether user-generated or system-generated, operating system data, and whatever else may be on the phone, including deleted data: in

summary, all recoverable data on the cell phone. The Information to Obtain is very detailed in terms of what the police propose to do, but in simplistic terms it would amount to carte blanche to examine, at least in cursory form, everything on the cell phone. The Information, in setting out the terms of the proposed search, indicates why this might be necessary. The draft warrant filed with the Information contains no conditions or restrictions; that is, all indications of restrictions on the search are contained in the Information, not in the warrant. [ 3 ] I am satisfied that the Information justifies a warrant. I am not satisfied with the terms of the draft warrant provided.

[4] Search of computers, etc. has been the subject of two recent decisions by the Supreme Court of Canada, namely R v Vu,2013 SCC 60 , 2013 3 SCC 60, [2013] 3 SCR 657 [Vu] and R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 [Fearon]. Our Courtof Appeal, in R v Adeshina, 2015 SKCA 29, 457 Sask R 35, concluded that the Supreme Court of Canada’s views in Vu and Fearonapplied equally to cell phones.

Although Fearon was specifically about search of cell phones incident to arrest, the privacy concernsexpressed by the Court make no distinction between a phone examined at the time of arrest and one examined later. [5] Those decisions emphasized the vast quantity of personal data held on such devices, and the privacy issues engaged bypolice searches of that data. [6] Vu went into considerable detail about privacy concerns on searches of electronic devices.

The Court held that there was noconstitutional requirement for a search protocol in such instances, relying instead on the general requirement that police searches beconducted in a reasonable manner; at the same time, the Court expressly allowed for the possibility of the judge issuing a warrant toimpose search protocols where appropriate. [7] In Fearon, the Court went further and imposed a blanket search protocol on police searches of cell phones incidental toarrest.

That protocol requires, amongst other considerations, that “[t]he nature and extent of the search are tailored to the purpose of thesearch” (para. 83). [8] In the situation before me, the accused seems to have acknowledged ownership of the phone, provided police with hispassword and unlocked it for them. He has acknowledged that there at least used to be photographs of the nature sought by the police onthe phone, and that there might be still. There is no suggestion in the Information that his statements would not be admissible in court.

From the complainant, police are aware of the programs or apps used for communications between the complainant and the accused,although it is not clear whether communications might have occurred through other programs or apps (see sub-para. 16(c)). Itpresumably would be open to the police to ask the complainant for a full list of programs and apps which were or might have been usedfor communications and the exchange of photographs between the complainant and the accused. [9] Perhaps simplistically, it would seem that all the police have to do is look at those programs or apps.

Depending on whatthey find, they might need to see if they can recover deleted communications and photographs. [10] As indicated, however, the Information seeks access to all of the data on the phone. The stated reasons why access is requiredto all of the data are three: (

a) to collaborate [sic] or contradict the information of the officer who viewed and seized the device during this investigation; (

b) to look for the presence of child pornography; (

c) to determine ownership, access and configuration of the phone. [11] Point (

a) appears to be irrelevant: there is nothing in the Information to suggest that any data has been viewed yet by anyofficer. [12] Point (

b) is a valid point, and as noted above, the police either already know or have access to information as to where thealleged child pornography can be found. [13] Point (

c) seems at best to be dubious: ownership seems to have been conceded, and since the accused has acknowledged to the

police the exchange of the photos in question, there does not appear to be any question of whether or not anyone else had access to the phone so as to exchange the photos without the accused’s knowledge. The first two matters in (

c) do not seem, therefore, to require access to data on the phone. With respect to the final matter, determining “configuration of the phone”, there is nothing in the Information to indicate why, in this specific matter, there is any need to determine this. [ 14 ] The Supreme Court’s concern in Fearon (quoted above) that “[t]he nature and extent of the search are tailored to the purpose of the search” seems to have been disregarded in this instance.

There has been no tailoring of the search: rather, the police intend to search everything on the phone, based on a standardized wording in the Information which clearly contains aspects not appropriate to this situation. [ 15 ] Paragraphs 21 through 41 of the Information deal with the manner in which the police propose to exercise the search. From my experience with warrant applications of this type, these paragraphs have been copied verbatim from some template or other application. There has been no attempt made to make them applicable to A’s circumstances. The following are simply some examples: (

a) in paragraph 29, there is reference to “the times the pictures and videos were downloaded/created”. According to everything else in the Information, there are no videos, and they were not downloaded or created on this phone; (

b) in paragraph 22, reference is made to copies of web pages created on the device. There is no evidence that any web pages were created by A on his phone, nor is there any indication as to how A’s creation of web pages would be relevant; (

c) paragraph 22 also refers to “details of internet sites visited by the suspect”. How, exactly, such details would have any relevance to the charges is unclear; (

d) paragraph 35 refers to the fact that a file name can be changed to disguise the fact that it is a photo file (changing a file extension from .jpg, for instance). While this is certainly true, it seems to be rather more difficult to do on a cell phone than on a PC, for example. If there is something about the type of cell phone in question here which changes this, it has not been shown in the Information. [ 16 ] There does not seem to have been any attempt to tailor the proposed investigation to the purpose of the search.

Rather, 20 paragraphs have been inserted with technical arguments which are more applicable to an investigation of material downloaded or shared online than with the situation before me, presumably in the hope that those paragraphs will justify a full search of all data, including operating system data, on A’s phone. [ 17 ] What the police want, and what they are entitled to, is (

a) to find the photographs which are, may be or have been on the phone, and (

b) to establish the ownership of the phone. Given the admissions which have been made by the accused, and the information from both the accused and the complainant about how those photographs were transmitted, it should be possible to narrow the required scope of search considerably from “all of the data on the phone” (to paraphrase). If C says the photographs were exchanged via Snapchat, for example, then searching for the photographs in Snapchat might be a reasonable first step; if the photos are not found there, a further application could be brought at that time, with that additional information.

This is one way in which the search could be tailored, bearing in mind both its objective and the totality of the information which the police have at this point. [ 18 ] I would point out that (1) the police are not entitled to look through the accused’s phone for evidence of other wrongdoing, including other potential child pornography offences, and (2) if the police have or acquire legal grounds to believe that further searches of the phone’s data are appropriate beyond what is needed to establish (

a) and (

b) in the preceding paragraph, it is always open to them to bring a new application for a new warrant. [ 19 ] For these reasons, I consider it appropriate to only grant the warrant to search the areas of the data which the police can establish are relevant to (

a) and (

b) in paragraph 17, above. [ 20 ] In my view, not only must the search be narrowed considerably from what is proposed, but the restrictions on that search must appear in the warrant. It is the warrant which provides the police with authorization to search, and which should accordingly specify the parameters of, and restrictions on, that search. Specifying in the Information what it is that the police intend to do, and then granting a

warrant which on its face is unrestricted, does not seem to me to accord with the scheme specified in the Criminal Code. [21] In saying this, I do not mean to suggest that the police would not conduct their search in accordance with the processes laidout in the Information. However, the entire structure of Canadian law is that the public does not have to rely on the goodwill of thepolice in carrying out their duties: it is clearly set out what the police can and cannot do, so that they and everyone else know.

Havingthe Information say what the police intend to do is, in my view, very different from having the warrant say what the police must do.

Although the form of search warrant in the Criminal Code (Form 5) does not specifically have a place for conditions to be inserted, subs.487(3) indicates that the form can be “varied to suit the case.” Indeed, such a process is explicitly endorsed by the Supreme Court ofCanada in Vu, at para. 62. [22] I further consider it important that the search be restricted, rather than left as a matter of “reasonableness” in the exercise of anunlimited search, for the reasons expressed in Re QW and YC, 2017 SKPC 85 , 2017 SKPC 085 at para. 29: There is an additional reason for a search protocol, beyond those laid out by the Supreme Court.

Relying on the state’s “reasonableness”in carrying out the search is problematic for a very practical reason: it is almost impossible to enforce. How will a person in the positionof QW and YC, upon return of their phone or computer, have any idea what the agents of the state have looked at? At least with aphysical search of a home, for example, the homeowner is likely to see visible clues as to what the police have done and where they havebeen, and thus to have a basis for challenging the reasonableness of the search.

If the warrant is to search for a stolen car and it appearsthat the underwear drawer has been disturbed, the homeowner will have a basis for questioning what was searched and why. How couldthe owner of an electronic device, however, even begin to consider whether or not the police search of the computer was reasonable? Atleast if the warrant or order sets out limits or guidance for the search, the individual would have some basis for asking questions as towhat the police had done and whether or not it fell within the authorization. [23] The Information discloses a proper basis for a search warrant to issue.

The terms of the warrant, however, must be restrictedso as to achieve only the objectives of the search. __________________________ Q.D. Agnew, J