Canadian courts have recognized meaningful privacy interests in digital contexts, in subscriber information held by an internet provider, in the specific judicial authorization needed to search a computer or phone, in a shared home computer, and in text messages or IP addresses tied to a person's identity. A warrant authorizing the search of a location does not, without more, authorize police to search computers or similar digital devices found there. If digital evidence was obtained in breach of the Charter, the defence may seek its exclusion under s. 24(2) of the Charter.
01Search Warrants for Phones and Computers
Searching the contents of a phone or computer raises different privacy concerns than searching a physical location. Police generally require lawful authority to search digital devices, and where they rely on a warrant, the scope of that authorization matters, including what devices, accounts, or data it permits them to search. Forensic extraction, imaging of hard drives, and analysis of cloud-stored data may form part of these investigations, and evidence may be challenged where police exceeded the lawful scope of their authority.
02Production Orders
Police can also seek production orders under the Criminal Code requiring third parties, such as internet service providers or financial institutions, to produce specified records or data. Production orders are judicial authorizations distinct from traditional search warrants, and different types of orders have their own statutory requirements. Whether an order was properly obtained and executed may become an issue in a cybercrime investigation.
