Global Information Technology & Communications
Canada - Police may seize a computer without a warrant where they reasonably believe it is necessary to prevent the imminent destruction of evidence
The Ontario Superior Court of Justice recently issued a decision in which it found that a warrantless search of a household and seizure of a computer did not infringe on the accused’s constitutional right to be free of unreasonable search and seizure because the accused might have otherwise destroyed any evidence on the computer.
In R v Brar,  OJ No 4312, the accused was charged with, among other things, using a computer to facilitate obtaining sexual services from a person under 18 years old. While being interviewed at a police station, the accused refused to consent to the police’s search of his computer. Additional police officers were immediately dispatched to secure the accused’s computer at his household. For eight continuous hours, police officers took turns prohibiting access to the bedroom containing the accused’s computer despite not having warrants for the entry and search of the household. During this time, the police attempted to obtain the relevant warrants but were refused on two occasions due to errors on the request form. After submitting a third request, the police were told that there would be a wait of at least three and a half hours. It being close to midnight, the police seized the accused’s computer.
The court determined that the police officers’ warrantless search and seizure were legally authorized owing to exigent circumstances. The court concluded that the test for exigent circumstances was met because it was reasonable for the police officers to believe that evidence relating to the commission of the offense was present in the household and that entry into the home and seizure of the accused’s computer were necessary to prevent the imminent destruction of such evidence. In coming to this conclusion, the court relied in part on the fact that the accused possessed some computer expertise.
This case adds to the growing case law in Canada governing the search and seizure of computers by the police. As we reported last year, the Supreme Court of Canada strengthened the constitutional protections of individuals’ privacy interests in computers by establishing in R v Vu that the police require specific, prior authorization to search a computer. The police in R v Brar did not contravene this rule as they seized the accused’s computer but did not search it until they had a warrant.
For more information, please contact Theo Ling, Arlan Gates, Lisa Douglas or Eva Warden.