In the modern era of criminal justice, the battlefield has shifted from physical property to the vast and often invisible landscape of digital data. For decades, the law focused on the protection of homes, offices, and filing cabinets. Today, the most intimate details of a life are stored not in a safe, but in the cloud or on a device smaller than a deck of cards. The Supreme Court of Canada has spent the last decade wrestling with how to apply ancient constitutional principles to this new reality. The result is a complex web of protections and police powers that every individual should be aware of. This blog reviews ten key legal realities related to digital privacy and criminal law in Canada.
1. The Internet Protocol Address as Biographical Core
One of the most significant recent developments in Canadian privacy law occurred in 2024 with the Supreme Court decision in R. v. Bykovets. For years, police forces operated under the assumption that an Internet Protocol address was merely a string of numbers. Investigators frequently obtained these addresses from third-party companies without a warrant. They argued that the numbers themselves revealed nothing private about a user.
The Supreme Court rejected this view. The Court recognized that an IP address is the digital key that unlocks a user’s identity. When police obtain an IP address, they are taking the first step toward building a complete profile of an individual. This profile can include political views, medical history, and intimate preferences. The Court ruled that Canadians have a reasonable expectation of privacy in their IP addresses. Consequently, police now require judicial authorization to obtain this data from payment processors or internet service providers. This decision marks a massive shift in how online fraud and internet crimes are investigated.
2. The Limits of Search Incident to Arrest
A common misconception is that police have an absolute right to search a cell phone whenever they arrest an individual. This is incorrect. While the police have a common law power to search a person incident to arrest, the Supreme Court has placed strict limits on this power regarding cell phones, as seen in the decision of R. v. Fearon. The Court recognized that a phone is not like a wallet or a bag. It is a portal to an immense amount of private information.
Police may only search a phone incident to arrest if they satisfy specific conditions. The arrest must be lawful. The search must be truly incidental to the arrest, meaning it must be performed for a valid purpose such as protecting public safety or preserving evidence. Most importantly, the nature and extent of the search must be tailored to the purpose. Police cannot simply browse through years of photos or read every email. Furthermore, officers must keep detailed notes of exactly what they looked at and how they navigated the device. If they fail to do so, the evidence may be excluded at trial.
3. Text Messages and the Virtual Private Space
Many individuals assume that once they send a text message, they lose all control over that information. The logic suggests that because the recipient now possesses the message, the sender has no expectation of privacy. The Supreme Court dismantled this reasoning in R. v. Marakah. The Court introduced the concept of a shared electronic conversation as a private virtual space.
The law now recognizes that the risk of a recipient showing a message to others does not waive the sender’s privacy rights against the state. When police seize a phone from a suspect and find incriminating messages sent by a second person, they cannot automatically use those messages against that second person. The sender retains a reasonable expectation of privacy in the electronic conversation. This principle prevents the state from using the digital devices of one citizen as a warrantless dragnet to gather evidence against their entire social network.
4. The Sanctity of the Shared Computer
Domestic environments often involve shared technology. A family might share a desktop computer, or roommates might have access to a communal tablet. In R. v. Reeves, the Court addressed whether one user can consent to the police seizing a shared computer that contains data belonging to another user. The case involved a domestic dispute where one partner gave police a computer used by the other partner.
The Supreme Court held that the police cannot rely on the consent of a third party to seize a shared computer. The decision emphasized that data on a computer is highly private and specific to the user. Even if someone shares the physical device, they do not waive their privacy rights regarding the information stored within it. Police must obtain a warrant to seize the device, rather than relying on the permission of a spouse, roommate, or family member who happens to have physical access to the machine.
5. Passwords and the Principle Against Self-Incrimination
A fundamental tenet of Canadian criminal law is that a suspect cannot be compelled to assist in their own prosecution. This is known as the principle against self-incrimination. This principle creates a complex legal battleground regarding passwords. While police can obtain a warrant to search a phone or computer, a warrant generally cannot force a human mind to reveal a memorized passcode.
Canadian courts distinguish between physical evidence and information that exists only in the mind of the accused. Physical keys to a safe can be seized. A memorized combination, however, is constitutionally protected. Police often attempt to bypass this by asking for the code during an arrest or using forensic technology to brute force the device. If a suspect voluntarily provides the code, the evidence is admissible in court. However, if the police use coercion or threats to extract a password, the defence can argue that the accused was coerced against themselves in violation of section 7 of the Charter.
6. Judicial Authorization and the Information to Obtain
The primary mechanism for protecting privacy is the requirement for a search warrant. To get a warrant, a police officer must draft a document known as an Information to Obtain. This document must set out reasonable and probable grounds to believe that an offence has been committed and that evidence will be found in a specific location. In the digital context, this requirement is rigorous.
Police cannot go on a fishing expedition. They must demonstrate a nexus between the crime and the device. If an officer simply speculates that a drug dealer discusses business on their phone without specific evidence, a justice of the peace may refuse the warrant. Defence counsel will meticulously review the Information to Obtain during pretrial proceedings. If the police exaggerated evidence, omitted material facts, or misled the justice of the peace, the search warrant can be quashed. This review process is the most common method for challenging digital evidence in serious criminal cases.
7. Cloud Data and Production Orders
Modern devices rarely store all their data locally. Emails, documents, and photos often reside on servers located thousands of kilometres away. This creates a jurisdictional challenge for Canadian law enforcement. The Criminal Code contains provisions for Production Orders, which are judicial orders compelling a third party to produce documents.
The law regarding cloud data is evolving rapidly. Canadian courts generally assert jurisdiction over data that is accessible from Canada, even if the server is technically abroad. However, the process for obtaining this data is distinct from a standard physical search. Police must serve formal legal demands on corporate entities. These entities sometimes resist disclosure based on their own privacy policies or international law. For the client, this means that the seizure of a physical phone is often just the beginning of the investigation. The police will frequently seek subsequent orders to access the cloud accounts associated with the device.
8. The Doctrine of Abandonment in the Digital Realm
Physical property law encompasses a concept known as abandonment. If a person throws a bag of trash on the curb, they lose their privacy interest in it. Police can search that trash without a warrant. Applying this concept to digital data is far more difficult. The courts have struggled to determine when a person has abandoned their digital privacy.
Posting information on a public social media profile is generally considered an abandonment of privacy. Police can view, capture, and use public posts without judicial authorization. However, the analysis changes for semi-private platforms or posts with a limited audience. The mere fact that digital data is accessible to a group of friends does not mean it is abandoned to the world at large. Defence lawyers frequently argue that limiting an audience on social media demonstrates a continued expectation of privacy. This area of law remains fluid, but the general rule is that privacy rights diminish as the size of the digital audience increases.
9. Border Crossings and Reduced Expectations
Travellers entering Canada face a unique legal regime. The Customs Act grants the Canada Border Services Agency broad powers to examine goods entering the country. For many years, this was interpreted to allow the warrantless search of cell phones and laptops at the border. The rationale was that the state has a powerful interest in controlling what enters the country, which overrides individual privacy.
However, courts have tempered this power. While the threshold for searching a device at the border remains lower than in a domestic context, it is no longer a rights-free zone. Border officers now generally require a specific threshold of suspicion before they can demand passwords or conduct a forensic examination of a digital device.
10. Exclusion of Evidence under Section 24(2)
When police violate the digital privacy rights of an accused, the remedy is found in section 24(2) of the Charter. This section allows a judge to exclude evidence if its admission would bring the administration of justice into disrepute. This is the mechanism that gives teeth to privacy laws. If a judge finds that the police bypassed the warrant requirement or searched a phone beyond the limits set in Fearon, the resulting evidence may be excluded.
The test for exclusion is complex. The judge must balance the seriousness of the police conduct against the impact on the accused and the society’s interest in a trial on the merits. In digital cases, courts have been increasingly willing to exclude evidence. The judiciary views the breach of digital privacy as a serious encroachment on civil liberties. If police act recklessly or with a systemic disregard for the warrant requirement, the court will often exclude the evidence, even if it means a guilty person goes free. This strict approach is designed to force law enforcement to respect the constitutional protections surrounding digital data.
Canadian Criminal Law Must Evolve Along With Technology
The intersection of technology and criminal law is one of the most dynamic areas of modern legal practice. The rules are not static. They shift with every major Supreme Court decision and every technological advance. For any individual facing criminal charges, understanding these digital realities is essential. The device in a pocket is not just a communication tool. It is a repository of evidence and a battleground for constitutional rights. As the state develops new methods of surveillance and extraction, the law must evolve to ensure that the right to be secure against unreasonable search and seizure remains a meaningful protection for all Canadians.
Barrison & Manitius: Leading Oshawa Criminal Defence Lawyers Serving Durham Region
Digital evidence now sits at the centre of many criminal prosecutions, and unlawful searches can fundamentally alter the outcome of a case. If the police accessed your phone, online accounts, or digital communications, it is crucial to determine whether your Charter rights were violated. At Barrison & Manitius, our experienced criminal defence lawyers can review the circumstances of a digital search, identify potential violations, and determine whether key evidence can be challenged or excluded. To book a confidential consultation, please contact us online or call 905-404-1947.