Privacy in Computer Contents – SCC Picks Up Where It Left Off in R. v. Vu

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Privacy in Computer Contents - SCC Picks Up Where It Left Off in R. v. Vu

November 8, 2013

By David Fraser, at McInnes Cooper

On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the privacy interests at stake. In R v. Vu, the SCC continues its development of the law around privacy rights in the contents of computers – including “smart phones” – it started in October 2012:

Reasonable Expectation of Privacy. In October 2012, in R. v. Cole the SCC decided employees may have a reasonable – though limited – expectation of privacy in their work computer, based on an assessment of the “totality of the circumstances”. Click here to read McInnes Cooper’s November 28, 2012 Legal Update, “Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer”.

“Markedly Different” Privacy Interests. In R. v. Vu, the SCC seems to have picked up where it left off in R. v. Cole. The SCC emphasized that the privacy interests at stake in searches of computers – including cellular phones -are “markedly different” compared to searches of other types of receptacles (like filing cabinets) noting, “[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer” because police could potentially access “vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard …”. Therefore police require specific authorization to search the contents of computers.

Both decisions involve criminal charges and the limits on police (as representatives of the government) in conducting searches, though R. v. Cole did involve a workplace computer. As the SCC’s decision in R. v. Cole illustrates, employers are not subject to the same restrictions as are police. However, increasingly, principles surrounding privacy interests are first enunciated in criminal cases like R. v. Cole and R. v. Vu – and subsequently spilling over into the workplace when the employer’s right to search employees’ computers is at issue.

Click here to read the SCC’s decision in R. v. Vu, 2013 SCC 60.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2013. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Click here to request our consent.

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