Second search of phone data after update to forensic software held lawful under Charter

In R. v. Nurse, the two accused had been convicted at trial of first-degree murder of the deceased, Kumar, who was Nurse’s landlord. The Blackberrys belonging to the two were seized incident to their arrest, and as warrant was obtained to search them. As they were locked and password-protected the OPP investigating officers sent them to the RCMP for forensic extraction of data. The software used by the RCMP, called “Cellebrite,” was able to analyze raw data that was extracted from the phones and it showed that there had been some communication between them, but nothing incriminatory was found. However, the data was re-analyzed a year later, by which time there had been significant software updates to Cellebrite, and the new analysis revealed extensive text messages between the two accused which revealed a plan to kill the victim.

On appeal the accused repeated an argument they had made unsuccessfully at trial: that the re-analysis with the updated software amounted to a second “search” for the purposes of s. 8 of the Charter, and thus a second warrant should have been obtained. In rejecting this argument for a unanimous bench, Trotter J.A. remarked:

[133] In analyzing this issue, it is important to consider the essential nature of computers and other digital devices. They challenge traditional definitions of a “building, receptacle or place” within the meaning of s. 487 of the Criminal Code. In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 698, McLachlin C.J. said, at para. 27: “The factor of ‘place’ was largely developed in the context of territorial privacy interests, and digital subject matter, such as an electronic conversation, does not fit easily within the strictures set out by the jurisprudence.” See also R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 45-52. Similarly, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, Cromwell J. said, at para. 39: “…computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization.”

[134] Because of these conceptual differences, arguments by analogy to traditional (i.e., non-digital) search scenarios will not always be helpful. For example, the trial judge was right to reject the ultraviolet light testing scenario advanced by trial counsel. It does not work in this context because the second ultraviolet light analysis would require re-entry into the premises resulting in a separate invasion of privacy.

[135] The re-inspection or re-interpretation of the raw data harvested from the appellants’ devices did not involve a further invasion of privacy. It is not necessary in this case to identify precisely when the appellants’ privacy rights were defeated in favour of law enforcement. Nevertheless, their privacy rights were “implicated” when their devices were seized upon arrest. In R. v. Reeves, 2018 SCC 56, 427 D.L.R. (4th) 579, Karakatsanis J. held at para. 30: “When police seize a computer, they not only deprive individuals of control over intimate data in which they have a reasonable expectation of privacy, they also ensure that such data remains preserved and thus subject to potential future state inspection” (emphasis in original). The same would hold true for the seizure of a cellphone or BlackBerry device.

Here, whatever privacy interest the accused had in their phone data had been defeated completely by the issuing of the first warrant. The warrant did not have any search protocols attached to it, nor was there any indication that protocols would have been constitutionally necessary. The situation was analogous to a fraud investigation where copies of documents were taken and were continually inspected by police over the course of the investigation, and where it would be appropriate to consult new expert services to interpret them. While it might not always be the case that a re-analysis or re-inspection was not a new search, in this case the data was analyzed within the scope of an ongoing investigation, “the substance of which had not changed” between the two searches. The data was not altered in any way. The passage of time had no impact upon the lawfulness of the search. This ground of appeal was dismissed.