Lecture 5-Cybersecurity

Section 8 of the charter

Protection against unreasonable search and seizure

Section 24(2) of the charter

Prevents improperly obtained evidence from being admitted into court

R v Fearon and R v Marakah

In both cases, incriminating information was retrieved through police searches of cellphones. The accused in each case challenged the cellphone searches. The results in each instance provide guidance as to how police may legally conduct seizures and searches of cellphones.

Four part test in how police can search and seize digital devices

1.The arrest must be lawful.

2.The search must be truly incidental to the arrest.

3.The nature and the extent of the search must be tailored to its purpose.

4.The police must take detailed notes of what they have examined on the device and how they examined it. The record-keeping requirement is important to the effectiveness of after-the-fact judicial review.

Preservation demand

A demand to a person requiring them to preserve computer data in their possession or control at the time of the demand

Preservation order

A demand that requires a judge’s authorization to voluntarily preserve computer data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

General production order

An order issued to produce a specific quantity of documents or data in a person’s possession or control within a certain time frame. The police must believe this material will provide evidence of an offence.

Destruction of Data

With respect to these applications, a person who preserved computer data under a preservation demand or order under section 487.012 or 487.013 shall destroy the computer data that were preserved or that were prepared for the purpose of preserving the computer data. The data must be destroyed as soon as feasibly possible after the demand or order is revoked or the computer data are produced, whichever occurs first.

Assistance order

The judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if:

1. the person’s assistance may reasonably be required to give effect to the authorization or warrant;

2. the authorization is given under section 184.2 (interception with consent), section 184.3 (application by means of

telecommunication), section 186 (judge to be satisfied), or section 188 (applications to specially appointed judges) or a warrant issued under this Act; and

3. a person who is under investigation for the offence is not made subject to an order.