In R. v. McGregor, 2023 SCC 4, February 17, 2023, the accused, a member of the Canadian Armed Forces, was posted to the Canadian Embassy in Washington and held diplomatic immunity. During an investigation by the Canadian Forces National Investigation Service (CFNIS), the Alexandria police assisted by obtaining a search warrant to search the accused’s residence. The search warrant was executed by the American police and Canadian investigators.
During the search, the contents of some electronic devices were scanned. Evidence relating to unforeseen offences was discovered, including a sexual assault. The devices were seized and taken to Canada. The Canadian investigators obtained a Canadian warrant and conducted a further analysis of the devices seized.
At his Court Martial, the accused argued that the search and seizure of his electronic devices contravened section 8 of the Charter. The military judge held that the Charter did not apply extraterritorially. The accused was convicted of a number of offences, including sexual assault and disgraceful conduct. An appeal to the Court Martial Appeal Court was dismissed. The accused appealed to the Supreme Court of Canada.
The appeal was dismissed.
The Supreme Court of Canada indicated that it’s “decision in Hape is the governing authority on the territorial reach and limits of the Charter under s. 32(1). Under the Hape framework, the Charter generally cannot apply to Canadian authorities involved in an investigation conducted abroad. This general rule is qualified by two exceptions: (1) consent by the foreign state to the application of Canadian law…and (2) Canadian participation in a process that violates Canada’s international law obligations” (at paragraph 18).
However, the Supreme Court held that it was “unnecessary to deal with the issue of extraterritoriality to dispose of this appeal. This is so because the CFNIS did not violate the Charter. Working within the constraints of its authority in Virginia, the CFNIS sought the cooperation of local authorities to obtain and execute a warrant under Virginia law. The warrant which issued authorized the search, seizure, and analysis of Cpl. McGregor’s electronic devices expressly. The evidence of sexual assault was discovered inadvertently by the investigators in the process of triaging the devices at the scene of the search; its incriminating nature was immediately apparent. Although the warrant did not contemplate such evidence, the digital files in issue fell squarely within the purview of the plain view doctrine. Furthermore, the CFNIS obtained Canadian warrants before conducting an in‑depth analysis of these devices. It is difficult to see how the CFNIS investigators could have acted differently to attain their legitimate investigative objectives. I conclude that they did not infringe Cpl. McGregor’s rights under s. 8 of the Charter” (at paragraph 4).
Section 8 of the Charter:
The Supreme Court noted that the “fact that a search of an electronic device is expressly authorized by warrant does not mean that any file contained therein may be analyzed — even where no search protocol has been imposed. Cromwell J. stressed in Vu that police officers are ‘bound, in their search, to adhere to the rule that the manner of the search must be reasonable’ (para. 61). Consequently, they cannot ‘scour the devices indiscriminately’ (para. 61) but must limit their search to the types of files that are ‘reasonably necessary to achieve [the warrant’s] objectives’ (para. 22). Should ‘the officers realiz[e] that there was in fact no reason to search a particular program or file on the device, the law of search and seizure would require them not to do so’” (at paragraph 29).
The Supreme Court indicated that though “the Virginia warrant did not encompass the investigation of sexual assault offences” the “discovery of unforeseen evidence does not invalidate the authorization to conduct a search for the purposes outlined in the original warrant…Here, the investigators discovered the impugned evidence when they were in the process of triaging Cpl. McGregor’s electronic devices at the scene of the search, as was expressly authorized by warrant. The investigators set aside the incriminating devices for seizure and further analysis. Indeed, the CFNIS obtained Canadian warrants before further analyzing their contents. In my view, this investigative process was consistent with s. 8 of the Charter” (at paragraph 36).
The Plain View Doctrine:
The Supreme Court indicated that “two requirements must be satisfied for the plain view doctrine to apply: (1) the police officers must have a legitimate ‘prior justification for the intrusion into the place where the ‘plain view’ seizure occurred’…; and (2) the incriminating evidence must be in plain view in that it is ‘immediately obvious’ and ‘discovered inadvertently’ by the police… it does apply in some form to electronic devices…In the case at bar, there can be no doubt that the doctrine applies” (at paragraph 37).
In the context of digital searches, the Court held that “the prior justification extends only to the types of files that are ‘reasonably necessary’ for the proper execution of such a search (Vu, at para. 22). In other words, there must be a reasonable nexus between the files examined and the purposes of the warrant for a search to satisfy the first requirement of the plain view doctrine” (at paragraph 38).
The Supreme Court concluded that “both requirements of the plain view doctrine are satisfied in the present case” (at paragraphs 41 and 42):
First, the investigators had a legitimate justification for their inspection of the files containing evidence of sexual assault at the scene of the search. As mentioned above, the Virginia warrant meets the Vu requirement of specific, prior authorization applicable to digital searches. Moreover, the military judge found that “[t]he discovery of files relating to a potential sexual assault . . . occurred while looking for the types of files specifically sought and authorized” (voir dire decision, at para. 25 (CanLII)). The investigators “demonstrat[ed] care to limit the impact of the search through screening and conduct of a targeted search that involved a minimum of personal information” (para. 27). In these circumstances, the initial search leading to the discovery of the files in issue satisfies the requirement of prior justification.
Second, the digital files disclosing evidence of sexual assault were in plain view, given their inadvertent discovery and immediately apparent unlawfulness. The investigators came upon these files in the triage process, which was designed to quickly identify evidence of interception and voyeurism. The military judge rejected “the submissions to the effect that the investigators continued to look into files they had no authority to look at under the terms of the warrant” (para. 25). He further noted that “any device that was assessed to contain potential child pornography and sexual assault files [was] set aside for seizure and further analysis back in Canada” (para. 25). Moreover, there was no need to closely examine the files to ascertain their incriminating nature — in contrast to the documents in Law, which were not facially unlawful. I thus conclude that the impugned evidence was in plain view and that its seizure during the triage process did not violate s. 8, either as part of a search carried out unreasonably or as an unreasonable seizure.
Conclusion:
The Court concluded that “CFNIS demonstrably observed the requirements of the Charter. The investigators discovered the incriminating evidence in the execution of a digital search expressly authorized by a valid warrant. The evidence of sexual assault, although not contemplated in the original warrant, fell squarely within the purview of the plain view doctrine. The CFNIS seized the evidence in accordance with that doctrine and subsequently obtained Canadian warrants before conducting an in‑depth analysis of the files in issue. Even on Cpl. McGregor’s view of the law, it is difficult to see how the CFNIS could have more fully complied with the Charter. In light of my conclusion that the investigative process was consistent with s. 8 of the Charter, it is unnecessary to address Cpl. McGregor’s argument that the evidence should be excluded under s. 24(2)” (at paragraph 44).
