IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)

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Case Number: 34687 IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) BETWEEN:

THANH LONG VU

Appellant (Respondent) AND:

HER MAJESTY THE QUEEN

Respondent (Appellant) AND:

BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION CANADIAN CIVIL LIBERTIES ASSOCIATION CRIMINAL LAWERS’ ASSOCIATION (ONTARIO)

ATTORNEY GENERAL OF ONTARIO ATTORNEY GENERAL OF ALBERTA

Interveners ______________________________________________________________________________

FACTUM

CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO), INTERVENER

______________________________________________________________________________

Rosen Naster LLP

330 University Avenue, Suite 504 Toronto ON M5R 1G7

Paul J.I. Alexander Tel: 416-205-9700 Fax: 416-205-9970

Counsel for the intervener

Criminal Lawyers’ Association (Ontario)

Gowling Lafleur Henderson 26th Floor, 160 Elgin Street Ottawa ON K1P 1C3 Henry S. Brown Tel: 613-233-1781 Fax: 613-563-9869

Ottawa agent for the intervener

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Cobb, St. Pierre, Lewis Barristers and Solicitors 330 – 233 West 1st Street North Vancouver BC V7M 1B3

Neil L. Cobb, Elizabeth P. Lewis, Nancy Seto Tel: 604-602-9770

Fax: 604-684-9690 Email: nlc@acquit.ca

Counsel for the appellant Thanh Long Vu

Gowling Lafleur Henderson Barristers and Solicitors 26th Floor, 160 Elgin Street Ottawa ON K1P 1C3 Brian A. Crane, Q.C. Tel: 613-233-1781 Fax: 613-563-9869

Email: brian.crane@gowlings.com

Ottawa agent for the appellant Thanh Long Vu

Public Prosecution Service of Canada British Columbia Regional Office 900 – 840 Howe Street

Vancouver BC V6Z 2S9

W. Paul Riley, Martha M. Devlin, Q.C. Tel: 604-666-0704

Fax: 604-666-1599

Email : paul.riley@ppsc-sppc.gc.ca

Counsel for the respondent Her Majesty the Queen

Brian Saunders

Director of Public Prosecutions 284 Wellington Street Ottawa ON K1A 0H8 François Lacasse Tel: 613-957-4770 Fax: 613-941-7865 Email: flacasse@ppsc-sppc.gc.ca

Ottawa agent for the respondent Her Majesty the Queen

Ruby Shiller Chan Hasan Barristers

11 Prince Arthur Avenue Toronto ON M5R 1B2

Nader R. Hasan, Gerald J. Chan Tel: 416-964-9664

Fax: 416-964-8305 Email:

British Columbia Civil Liberties Association

Sack Goldblatt Mitchell LLP Barristers and Solicitors West 500 – 30 Metcalfe Street Ottawa ON K1P 1C3

Raija Pulkkinen Tel: 613-482-2463 Fax: 613-235-3041 Email:

Ottawa agent for the intevener

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Neuberger Rose LLP Barristers and Solicitors 1392 Elgin Street Ottawa ON M6C 2E4 David S. Rose Tel: 416-363-0761 Fax: 416-364-3271 Email: rose@nrlawyers.com

Canadian Civil Liberties Association

Gowling Lafleur Henderson Barristers and Solicitors 26th Floor, 160 Elgin Street Ottawa ON K1P 1C3 Ed VanBemmel Tel: 613-786-0212 Fax: 613-788-3500

Email: ed.vanbemmel@gowlings.com

Ottawa agent for the intervener Canadian Civil Liberties Association Ministry of Attorney General of Ontario

Crown Law Office—Criminal 10th Floor – 720 Bay Street Toronto ON M5G 2K1 Michal Fairburn Tel: 416-326-4658 Fax: 416-326-4656

Email: Michal.Fairburn@Ontario.ca Counsel for the intervener

Attorney General for Ontario

Burke Robertson LLP Barristers and Solicitors 441 MacLaren Street Ottawa ON K2P 2H3 Robert E. Houston, Q.C. Tel: 613-236-9665 Fax: 613-235-4430 Email:

Ottawa agent for the intervener Attorney General for Ontario Alberta Justice

Appeals and Prosecution Police Branch 300 – 332 6th Avenue S.W. Calgary AB T2B 0B2 Jolaine Antonio Tel: 413-297-6005 Fax: 403-297-3453 Email: jolaine.antonio@gov.ab.ca

Counsel for the intervener Attorney General for Alberta

Gowling Lafleur Henderson Barristers and Solicitors 26th Floor, 160 Elgin Street Ottawa ON K1P 1C3 Brian A. Crane, Q.C. Tel: 613-233-1781 Fax: 613-563-9869

Email: brian.crane@gowlings.com

Ottawa agent for the intervener Attorney General for Alberta

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PART IV: SUBMISSIONS RESPECTING COSTS ... 10

PART V: REQUEST FOR PERMISSION TO PRESENT ORAL ARGUMENT ... 10

PART VI: TABLE OF AUTHORITIES ... 11

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PART I: OVERVIEW OF ARGUMENTS

1. The question in this appeal is whether state agents require specific judicial authorization to search the contents of computers and similar electronic devices found while executing a warrant. The CLA takes the position that computers cannot be searched without specific prior authorization.

2. Computers are fundamentally different from other items that may be found in the course of a search. They are different quantitatively, in that they may store exponentially greater amounts of private information than any private dwelling could contain. They are also different qualitatively, in that they store new kinds of information that have no analogue in the physical world. This information is often more detailed and more personally revealing than anything that might be found in a physical search. Computers often store this information without the user’s knowledge, and a search may reveal this information even after the user has deleted it. For these reasons, the Charter requires the police to obtain specific judicial authorization before searching a computer. Moreover, sections 487(2.1) and (2.2) of the Criminal Code evince Parliament’s intention to require that computer searches be specifically authorized by warrant in advance.

3. This case does not, however, call upon the court to develop a new and separate legal regime to require the police to obtain specific authorization to search computers. The existing legal framework already does so. Computers have long been recognized as “stand-alone search locations.” 1 The warrant requirement flows from long-established principles covering searches of places. These well-settled principles require state agents to obtain specific judicial

authorization before searching the contents of computers and similar electronic devices.

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PART II: STATEMENT OF POSITIONS WITH RESPECT TO THE APPELLANT’S QUESTIONS

Issue 1: Did the Court of Appeal err by concluding that the learned trial judge had failed to correctly apply the legal test for reviewing the issuance of the search warrant herein?

4. The CLA takes no position on this issue.

Issue 2: What is the scope of police authority to search computers and other such personal electronic devices found within a place for which a warrant to search has been issued?

5. The CLA takes the position that searches of computers and similar electronic devices must be specifically authorized by warrant in advance. Such warrants should set parameters to ensure that these searches do not exceed their legitimate scope.

PART III: STATEMENT OF ARGUMENT

6. The CLA respectfully submits that a computer cannot be lawfully searched without specific, prior authorization. The CLA supports the Appellant’s Charter-based submissions on this point. The CLA also submits that the Criminal Code itself demonstrates Parliament’s intention to require specific authorization for computer searches.

7. In support of its position, the CLA advances the following submissions:

a. Existing legal principles require specific, prior authorization. This court need not create a new legal regime to require prior authorization for computer searches. The principles governing searches of locations already do so.

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b. Computers and similar electronic devices are “stand-alone search locations.” As such, computer searches are subject to the Charter principles governing searches of places, including the requirement for specific authorization.

c. Computers are quantitatively and qualitatively different from other search items. Computers and similar devices can store enormous amounts of deeply personal information. They engage privacy interests which can only be protected by requiring specific, focused, prior authorization. This authorization must expressly contemplate the search of a computer and should set parameters on the search to minimize overbreadth.

d. Parliament has chosen to require specific authorization for computer searches. Criminal Code subsections 487(2.1) and (2.2) characterize computers as locations to be searched, and enumerate certain powers for “a person

authorized under this section to search a computer system for data”.2 It would be meaningless to refer to “a person authorized under this section to search a

computer” if specific authorization were not required.

(a) Existing legal principles require specific, prior authorization for computer searches 8. It is now trite law in Canada that computer searches engage privacy concerns of the highest degree.3 The narrower question on this appeal is whether a warrant to search a location can implicitly authorize the police to search any computer they find therein.

2

Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 487(2.1) and (2.2).

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9. The respondent Crown argues that there is no need to develop “an entirely new set of search and seizure rules or procedures” to govern computer searches.4 The CLA does not urge the court to do so. When computers are properly characterized, the long-standing legal principles which govern searches of locations already require specific, prior judicial authorization before computers may be searched.

(b)Computers are “stand-alone search locations”

10. When executing a warrant to search a location, the police may generally open drawers and filing cabinets, and examine items they find therein. They may not, however, search new locations without specific authorization.

11. Canadian courts have broadly recognized that computers are not akin to filing cabinets, drawers, or standard physical items. As the Court of Appeal for Ontario held in R. v. Jones, “[a] better analogy is to the search and seizure of two different ‘places’: the home in which the computer is found, for example, and the computer itself.”5 By virtue of their capacity to store immense volumens of private information, computers are properly recognized as “stand-alone search locations” requiring search warrants of their own.6 This view has been adopted by trial and appellate courts, by Parliament, and in at least one case, by counsel for the Attorney General of Ontario.7

4_{Respondent’s factum at para. 93.} 5_{R. v. Jones,}_{2011 ONCA 632 at para. 47.} 6

R. v. Mohamad,supra at para. 43.

7

R. v. Mohamad,supra at para. 43; R. v. Jones,supra at paras. 45-49; R. v. Little, [2009] O.J. No. 3278 (Super. Ct.) at para. 147.

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12. As “stand-alone search locations,” computers may not be searched without specific, prior judicial authorization.8 This does not flow from any novel legal regime, but from the long-standing principle that the police must obtain a warrant for each new location which they wish to search. While the police may be entitled to seize a computer found during the execution of a warrant, they must obtain specific authorization before searching its contents.

(c) Computers are quantitatively and qualitatively different from other items

13. Computers are fundamentally unlike items that may be found in a traditional search. They differ both quantitatively and qualitatively. For both reasons, they are properly treated as

locations to be searched, not items to be examined.

14. Computers are not simply larger filing cabinets. They are more akin to warehouses. While a home may contain several filing cabinets, a personal computer may contain millions of pages of documents. Vast amounts may be deeply personal and unrelated to the offence at issue. Before searching what is effectively a warehouse of data, the state should be required to obtain specific authorization.

15. Computers are also qualitatively different from traditional search items. They store types of information that have no counterpart or precedent in the physical world. These data are often highly personal. Although the respondent Crown submits that “[t]here is no reason to assume that the information stored on an electronic device is inherently or qualitatively different from other intensely private materials that could be located within a residence,”9 this court implicitly rejected that position in R. v. Morelli. As with filing cabinets, “[c]omputers often contain our

8

R. v. Little, supra at para. 147; R. v. Mohamad, supra at para. 43.

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most intimate correspondence. They contain the details of our financial, medical, and personal situations.” Unlike filing cabinets, however, computers will “even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.”10

16. Computers do not merely store the private information that their users choose to keep. They create the types of highly personal data about their users that Justice Fish described in Morelli. The data are often stored without the users’ knowledge. These data are more extensive and detailed than anything an individual would record and store in the physical world. A typical person would not, for example, keep a detailed and time-stamped log of every question they asked, every book they read, every store they visited, every person they “chatted” with and what they said, etc. This information is different both in volume and in kind from anything that might be discovered in a traditional search.11 In the physical world, the information simply would not exist.

17. Computers may also contain deleted files, again without the user’s knowledge. Even documents that a user has taken care to destroy may sometimes be retrieved.12 By nature, these are files in which the user has an especially high privacy interest. Physical documents can be shredded, burned, or otherwise permanently destroyed. Computer searches may reveal these documents nevertheless. They are manifestly more intrusive than physical searches.

10_{R.v. Morelli,}_{[2010] 1 S.C.R. 253 at para. 105.} 11

Alan D. Gold, Applying Section 8 in the Digital World, Seizures and Searches, prepared for The 7th Annual Six-Minute Criminal Defence Lawyer, Law Society of Upper Canada, June 2007.

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18. Computers may contain full records of correspondence—not only letters received, but letters sent as well. A search of a home might turn up written letters between parties. However, it is common experience that written letters are typically different from electronic communications in content, in audience, and in frequency. Electronic messages may be sent not only to formal correspondents, but to intimate partners, friends, family members, and others. By virtue of their informal nature and their wide audience, they may cover a broader range of subject matter. Their volume may be immense. A person could easily send and receive dozens or hundreds of e-mails, text messages, and instant messages in a single day. By way of illustration: if a user sent and received a total of only ten electronic messages each day, a search of that user’s computer after three years could reveal over ten thousand items of correspondence. In both nature and volume, this is far beyond what might ordinarily be found in a physical search of a dwelling.

19. Moreover, a computer search may invade the privacy interests of many people beyond the target of the investigation. A computer search can sweep in e-mails and other private

communications from third parties, along with photographs, videos, and other data depicting the target’s friends, family members, business associates, or others. In this regard, computer searches are more akin to wiretaps than traditional searches. Computer searches are arguably more

intrusive: a wiretap authorization under Part VI of the Criminal Code will be prospective, time-limited, and designed to catch only communications taking place within a specific time frame during which a Justice has determined that there are grounds to believe that there will be communications relating to the investigation. Computer searches, by contrast, may turn up archives of communications dating back to the day the computer was first used, and possibly farther.

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20. Computers can also store varying types of data. Where a warrant authorizes a search for images depicting child pornography, there may be no need for investigators to read through medical and banking documents on the same computer. Where a warrant authorizes a search for accounting records relating to a fraud investigation, there may be no justification for reviewing videos and personal photographs. Where police are authorized to search for communications between specific parties, there may be no valid basis to read through e-mails involving unrelated persons.

21. Computers may therefore store private information that is both quantitatively and qualitatively different from that which might be discovered in a physical search. They are not examined for evidence on their surfaces, but rather they are searched for their contents, which can be varied, voluminous, and intensely private. They engage privacy concerns that are different and sometimes more numerous than those engaged by physical places. For these reasons,

computers are widely and properly recognized as stand-alone search locations. They must not be searched without specific authorization.

(d)Parliament has chosen to require specific authorization for computer searches 22. In addition to supporting the Appellant’s Charter-based argument, the CLA takes the position that the Criminal Code presently requires that a computer search be specifically authorized.

23. While section 487 of the Criminal Code deals with search warrants generally, there are specific provisions relating to computer searches. Subsections 487(2.1) refers to “[a] person authorized under this section to search a computer system in a building or place for data”, and

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enumerates certain search powers.13 These subsections show Parliament’s intent to require specific prior authorization for computer searches. If a warrant to search a dwelling under s. 487 of the Criminal Code could allow for a computer search without specific authorization, there would be no need to refer to “[a] person authorized under this section to search a computer system for data”. This would offend the presumption against surplusage.14 By including a provision to obtain a warrant to search a computer system, Parliament demonstrated its intention that such a warrant would be required.15

24. Moreover, subsection 487(2.1) demonstrates Parliament’s recognition that computers are not akin to briefcases or other items that may be found during a search. Rather, Parliament has treated computers as stand-alone search locations, subject to their own rules. Indeed, Crown counsel have advanced this very position before the Court of Appeal for Ontario. In R. v. Mohamad, the Court held:

…in my view, there is a significant distinction between the warrantless search of a laptop computer locked in a stolen car's trunk, as referenced in the quoted passage from Law, and the warrantless search of an unlocked briefcase in an unlocked stolen vehicle. A computer can be a repository for an almost unlimited universe of information. As Crown counsel points out, Parliament has treated computers as stand-alone search locations warranting specific rules. See Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 487(2.1) and (2.2).16

(e) Conclusion

25. It is well established that computer users have a significant privacy interest in the contents of their computers, and that this privacy interest engages the protections of s. 8 of the Charter. The CLA does not suggest that this court develop a novel legal framework in order to

13_{Criminal Code,}_{R.S.C. 1985, c. C-46, s. 487(2.1).} 14_{Williams v. Box}_{(1910), 44 S.C.R. 1 at 24.}

15_{The CLA does not argue that ss. 487(2.1) and (2.2) place further restrictions on the conduct of computer searches.}

Rather, these subsections demonstrate that Parliament has defined computers as locations to be searched, and expressed its intention to require the authorities to obtain warrants specifically authorizing computer searches.

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require specific judicial authorization before a computer may be searched. A novel framework is not required. Existing legal principles, including the principles governing searches of locations, already require the police to obtain specific judicial authorization before searching the contents of a computer.

PART IV: SUBMISSIONS RESPECTING COSTS

26. The CLA makes no submissions respecting costs.

PART V: REQUEST FOR PERMISSION TO PRESENT ORAL ARGUMENT

27. The CLA respectfully requests permission to present oral argument, and requests that 20 minutes be allotted.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

PAUL J.I. ALEXANDER Rosen Naster LLP Barristers 330 University Avenue Suite 504 Toronto, ON M5G 1R7 Tel: (416) 205-9700 Fax: (416) 205-9970 paulalexander@rosenlaw.ca Of Counsel for the intervener, The Criminal Lawyers’ Association (Ontario) Toronto, Ontario, March 7, 2013

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PART VI: TABLE OF AUTHORITIES

Reference Paragraphs

Alan D. Gold, Applying Section 8 in the Digital World, Seizures and Searches, prepared for The 7th Annual Six-Minute Criminal Defence Lawyer, Law Society of Upper Canada, June 2007.

16

R. v. Jones, 2011 ONCA 632. 11

R. v. Little, [2009] O.J. No. 3278 (Super. Ct.). 12, 14, 17 R. v. Mohamad, [2004] O.J. No. 279 (C.A.). 3, 12, 24

R. v. Morelli, [2010] 1 S.C.R. 253. 8, 15

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12 PART VII: STATUTORY PROVISIONS Criminal Code, R.S.C. 1985, c. C-46, as amended, ss. 487(2.1), (2.2)

Operation of computer system and copying equipment

(2.1) A person authorized under this section to search a computer system in a building or place for data may

(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;

(c) seize the print-out or other output for examination or copying; and

(d) use or cause to be used any copying equipment at the place to make copies of the data.

Duty of person in possession or control (2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;

(b) to obtain a hard copy of the data and to seize it; and

(c) to use or cause to be used any copying equipment at the place to make copies of the data.

Usage d’un système informatique

(2.1) La personne autorisée à perquisitionner des données contenues dans un ordinateur se trouvant dans un lieu ou un bâtiment peut : a) utiliser ou faire utiliser tout ordinateur s’y trouvant pour vérifier les données que celui-ci contient ou auxquelles il donne accès;

b) reproduire ou faire reproduire des données sous forme d’imprimé ou toute autre forme intelligible;

c) saisir tout imprimé ou sortie de données pour examen ou reproduction;

d) utiliser ou faire utiliser le matériel s’y trouvant pour reproduire des données.

Obligation du responsable du lieu

(2.2) Sur présentation du mandat, le responsable du lieu qui fait l’objet de la perquisition doit faire en sorte que la personne qui procède à celle-ci puisse procéder aux opérations mentionnées au paragraphe (2.1).