c) Searches and Seizures Authorised by Law
Though the Court has recognized limited common law authorizations for a warrantless search, in
most circumstances the Court will require prior judicial authorization where such a mechanism has
been created by Parliament. In 1997, Parliament passed s. 487(2.1) of the Criminal Code, giving
police engaged in a criminal investigation the power to search and seize data found on a computer
system. With the inclusion of s. 487(2.1), both the intercept warrant and the traditional search
warrant are now applicable to the Internet e-mail environment. As a form of telecommunications, the
e-mail transmissions are subject to modern day wiretap interceptions authorized in Part VI of the
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Criminal Code. As a form of data, these communications may also be seized by the state. At present
there has been no case dealing with the use of a Part VI intercept warrant in relation to Internet
communications. As the police grow more certain of how crimes through this medium are being
committed however, it is likely that the intercept warrant will become a valuable tool in police
investigations.
The intercept warrant authorizations of Part VI and the traditional search warrants of Part VX of the
Criminal Code authorize different degrees of privacy invasion. Though both warrants require that the
State has reasonable grounds that the interception or search will provide evidence of a serious crime,
in most cases an intercept warrant will intrude to a greater degree, as it is, by nature, over inclusive
in its application. The stricter requirements of the intercept warrants within Part IV the Criminal
Code indicate that Parliament understands the over-intrusive nature of the wiretap warrant. They
created an onerous test for the police to overcome before judicial authorization will be granted. In
theory, therefore, a person’s e-mail transmissions will be protected by the strict judicial authorization
requirement.
A caveat should be stated in relation to the onerous provisions created to protect against the more
intrusive nature of the wiretap warrant. At present it remains open to discussion whether the courts
have shown proper care in monitoring the use of the wiretap warrant by police. For example,
between 1991 and 1995 the Attorney General of Canada applied for over 1000 normal audio
intercept warrants pursuant to section 185(1) of the Criminal Code (see Table 1.). Not a single one of
these applications was refused by the courts. It is conceded that a Parsons application may be
brought at trial to challenge the sufficiency of the warrant’s supporting Information. This does not,
however, reduce the fact that at present the police are able to obtain the intercept warrant with little
of the judicial governance that was contemplated in Hunter.
In Canada, a search will be reasonable if it is authorized either at common law or by statute. In the
context the Court’s decision in Weir there are two relevant computer-related common law
warrantless search powers. These are the common law authorizations of third party
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Third party consent will only be valid if it can be reasonably viewed as a substitute for prior judicial
authorization. The fact that the third party can remove the traditional barrier of property trespass,
therefore, will not likely suffice to make the search reasonable without a more substantial factor. In
the context of the current trend of ISPs willingly providing to the police with evidence of illicit
activity stored on their systems, the consent of the ISP may not be enough without some other
support. Such support could include a user agreement by which it can be consented that the user
himself was consenting to the material being disclosed to the police. The Court in Weir did not
address this issue.
The Open Fields doctrine was established as part of Canadian law by the Supreme Court of Canada
in R v. Boersma. This doctrine indicates that, if the privacy interest is in the plain sight of the police
and within the public purview, the accused cannot claim that he had a reasonable expectation of
privacy in the thing being searched or seized. In R v. Morin, the Court concluded that the police
action of logging onto a BBS located at the accused’s home was within the public purview, therefore
nullifying any concept of a reasonable expectation of privacy in its contents. Though no case in
Canada has yet addressed this issue with regard to personal e-mail transmitted over the Internet, it is
possible that the interception of e-mail transmissions via an Internet node may not require an
intercept warrant.
In balancing the privacy interests of the individual with the state's need to investigate criminal
activity, Canadian Courts have often used the traditional tools of analogy in circumstances where the
reasonableness of a non-warrant lawful authorization is in question. As such most newly-argued
privacy interests, such as personal e-mail communications, have been looked at in comparison with
existing privacy interests. It seems clear from the academic and foreign case law analyses that e-mail
has many characteristics that make it analogous to first class mail. In light of this and the comparison
of personal e-mail with first class mail in Weir the law dealing with first class mail must be
determined.
