When Is Your Data in Plain View?

SCC splits on application of “plain view doctrine” to data search and seizure

In R. v. McGregor, the accused was a Canadian military member who had been posted to the Canadian Embassy in Washington, D.C. An investigation by the Canadian Forces National Investigation Service (“CFNIS”) turned up evidence that he had committed the offences of voyeurism and possession of a device for surreptitious interception of private communications, during the course of his employment. In cooperation with local police in Virginia, where McGregor lived, the CNFIS obtained a warrant to search his residence and electronic devices, and to analyze any devices that were seized. While executing the search, forensic investigators scanned the contents of some of the devices and discovered what appeared to be evidence of other offences, including a sexual assault. They seized the items and brought them back to Canada, and then obtained a warrant to further analyze the contents of these devices. At trial, McGregor argued that the search and seizure had breached s. 8 of the Charter, but both levels of court found that, if the Charter applied, s. 8 had been complied with.

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