Justice Fish in R v Morelli, 2010 SCC 8 wrote: “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” [para 2]. Since Morelli, it has often been taken as a given that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer infringes an accused’s s. 8 rights.

Not necessarily so, says the Ontario Court of Appeal in R v Little, 2014 ONCA 339.

Christopher Little murdered his ex-wife and another woman in his home and then called 9-1-1 in the early morning hours of February 12, 2007. When police arrived they found his cell phone on the bed in the master bedroom. The phone was seized because it had blood on it, and because police wanted to confirm it was the phone that was used to call 9-1-1. Once in police custody, however, the phone was subject to an extensive search. Police copied the user data, call logs, contacts, text messages, videos, and photos.

The next day police officers interviewed Little’s employer. They obtained his verbal consent to seize Little’s workplace computer. Police officers then obtained a warrant to search the contents of the computer. The warrant authorized police to examine the computer for “communications” between certain people, and only during a 6 ½ hour period on a particular day. The computer search did not begin until after the warrant expired, and lasted months. Officers searched the entire contents of the computer for other kinds of evidence such as videos and Internet search histories. They did so in spite of advice from a detective that the warrant only authorized a search for “communications” and further searches were beyond the scope of the warrant.

The trial judge found that the cell phone and workplace computer searches violated Little’s s. 8 rights: 2009 CanLII 41212 (ON SC).

The trial judge admitted photos obtained from the cell phone and an Internet search obtained from the workplace computer under section 24(2) of the Charter: 2009 CanLII 42594 (ON SC). The accused was found guilty of two counts of murder.

On appeal, Little challenged the trial judge’s decision to admit evidence obtained from the search of the workplace computer. In particular, he argued that the trial judge erred by describing the impact of the breach as “the lowest end of the scale.”

The Ontario Court of Appeal rejected this argument—implicitly rejecting a general proposition that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer breaches an accused’s s. 8 rights.

The Court held:

Cases from the Supreme Court of Canada subsequent to the trial judge’s ruling, e.g. R. v. Vu, [2013] 3 S.C.R. 657 and R. v. Cole, [2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the privacy interest engaged and the impact of the s. 8 breach on that privacy interest. As made abundantly clear in Vu and Cole, this case-by-case approach applies to searches of computers. [para 8, emphasis added]

In R v Cole Justice Fish, writing for the majority of the Supreme Court of Canada, distinguished his own earlier decision in Morelli by ruling that evidence obtained from the warrantless search of a workplace computer should be admitted. The computer in Cole was owned by the accused’s employer. Workplace policies stated that personal use was permitted, but any data was the property of the employer and could be accessed by the employer. Justice Fish held that when assessing the impact of a s. 8 breach the focus is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity [para 91]. He concluded that the impact of the breach was attenuated by both the diminished privacy interest and the discoverability of the evidence [para 97].

In R v Vu Justice Cromwell, writing for a unanimous Supreme Court of Canada, ruled that evidence obtained from the warrantless search of two personal computers should be admitted. Police executed a search warrant on a house believed to be the site of a marijuana grow-op. Police officers found two personal computers in the house and manually viewed their contents. One of the computers was connected to a security camera system, and contained video of the accused’s vehicle coming and going from the house. The video was copied to a disc. The other computer contained the accused’s resume. Justice Cromwell noted that the search was not as intrusive as a full forensic examination. He also found that the police did not gain access to any more information than was appropriate, given the fairly modest objectives of the search as defined by the terms of the warrant. Justice Cromwell concluded that the impact of the breach favoured exclusion, but not strongly so [para 72].

The Ontario Court of Appeal’s decision in Little confirms a more nuanced approach to the impact of the breach on the Charter-protected interests of the accused when a computer has been searched in breach of s. 8. The impact of the breach will be assessed on a case-by-case basis and may not weigh in favour of exclusion where the reasonable expectation of privacy is diminished.