Search warrant authorized search of encrypted electronic devices

R. v. Nero
2016 CarswellOnt 2699
Ontario Court of Appeal

Criminal law --- Pre-trial procedure — Search with warrant — Search warrant — Miscellaneous

Electronic device — During warranted search of accused N and girlfriend F's residence, police seized encrypted electronic devices and accessed one device using password found on sticky note — Police found and photographed email messages on electronic device — Motion judge did not accept accused's arguments that search warrant did not authorize search of electronic device to retrieve information or data stored in electronic form — Accused N, his girlfriend F, accused C and others were charged with several offences relating to unlawful traffic in cocaine — Accused appeared on same indictment in another jurisdiction before different judge and agreed to be convicted on basis of agreed statement of facts — Accused appealed conviction, partly on ground that search of electronic device for information and data was warrantless, unreasonable, and should have been subject of analysis under s. 24(2) of Canadian Charter of Rights and Freedoms — Appeal dismissed — Information to Obtain (ITO) contained sufficient information to establish reasonably grounded belief that search of any electronic device would contain evidence relevant to establish commission of listed offence — ITO described basis for belief that N was using encrypted device to communicate with others and that search of that device would yield evidence of conspiracy to traffic cocaine — Search warrant specifically authorized police to search devices and to search for electronic information and data — Search conducted after seizure did not exceed in nature or in scope what was authorized under warrant.