One of the methods by which police are made aware of the presence of child pornography on a computer is when a computer technician is hired to fix the computer and in the process of doing so discovers the illegal content. A recent decision of the Court of Appeal of Alberta, R v Villaroman, 2018 ABCA 220¸ considered such a case.
Following the computer technician finding the alleged child pornography, he contacted police. The police officer sought a general warrant under s. 487.01, to conduct a forensic examination and to duplicate all the data, as opposed to a general search warrant under s. 487. Further, no Notice to a Justice was ever filed under 489.1. The Court found that both these amounted to a section 8 breach of the accused's Charter rights against illegal search and seizure. The seizure of the laptop and the subsequent search was unlawful.
Despite ruling that there was two separate section 8 Charter breaches, the majority of the Court did not exclude the evidence.
The obtaining of the general warrant over the search warrant was "at worst, a technical breach," and it was "clear" that the investigators were acting in good faith. The 489.1 breach, however, was not trivial and reflected a pattern of negligence. The impact on the accused's charter interests were not affected by the obtaining the wrong warrant as the "appellant's privacy would have been infringed to precisely the same degree had the police obtained the proper warrant." The 489.1 breach was not trivial, but was not as being particularly serious. Finally, the evidence for both breaches favored inclusion under the third Grant prong as it was reliable and vital to the Crown's case.
The case is helpful in reinforcing the need for police officers to take caution and care when executing searches of computers as they provide the highest expectation of privacy next to a home. Future cases where the same issues arose - the obtaining of the incorrect warrant or failing to file a return to a justice - may not result in the same inclusion of the evidence now that this Court has ruled on the issue. The comments made surrounding the importance of police complying with the s. 489.1 requirements may be the most useful takeaway from this decision, especially since it impacts all searches and seizures and is not limited solely to computer searches.
Link to the decision: https://www.canlii.org/en/ab/abca/doc/2018/2018abca220/2018abca220.html?resultIndex=1