Daniel Shap, 1993
The Legal Group for the Internet in Canada (LoGIC)
North American businesses are placing an increasing reliance on computer systems for the storage and retrieval of information. One issue which this raises is the possibility for the search and seizure of computer systems by law enforcement officials in the course of an investigation. The search and seizure of computer systems is a largely unexplored legal procedure. It poses a myriad of complex and troublesome questions for Canadian courts, legislators and law enforcement officials. The argument will be made that the Canadian judiciary must be sensitized to the legal difficulties which surround searches of computerized environments. In particular, the requirement for sufficiency of description in search warrants of computer systems will be examined, as will the issue of privacy as it relates to computerized office environments. I will also address the legal difficulties associated with trying to define a "premises" when dealing with the search of a computer system.
THE GROWING USE OF COMPUTERS TO STORE AND RETRIEVE INFORMATION
It would be stating the obvious to suggest that computers have pervaded every aspect of the modern-day business. A quick look around would reveal a profusion of personal, mini and mainframe computers crowding the downtown core of every major North American city.
The change has been more than merely aesthetic. It has not consisted of merely swapping old electronic typewriters for new ones with television screens. Over the last fifteen years, computers have succeeded in actually transforming the physical work environment of the modern office. Businesses have, by adopting the computer as the preferred means of record-keeping, severely restricted the role of paper as a medium for both storing and processing information. Paper, which has formed an integral part of commercial activity since ancient times, still continues to be the preferred means of delivering business information. On any given day North American enterprises still mail and fax hundreds of thousands of documents to each other. But with the advent of the computer, this paper-bound method of sending, receiving and storing documents is slowly being supplanted. While businesses continue to store their paper copies in folders, an alternate electronic copy can usually be found to exist in the firm's computer system. This is because it has become common place to draft, revise and edit all, or most, of an enterprise's documents on computer. Consequently, a copy of the final document is usually preserved in the computer's electronic storage facilities ("disk drives") for future reference.
It is also more common place nowadays for businesses to transmit and receive information by way of electronic mail ("e-mail"). E-mail allows enterprises to exchange documents at near instantaneous speed and in computer format so that the person receiving the document is free to edit, revise and store the electronic document on his/her computer system. E-mail can be used to transmit lengthy and complicated documents, short notes and memorandums or trivial gossip and reminders. By making use of e-mail, enterprises can greatly reduce the time and the expense associated with conventional mail carriers.
Communications between computers can also be achieved through "networks" of computer systems. For example, a law firm can inter-connect all of its local, stand-alone computers to form a local-area network ("LAN"). This allows workers in the same office to share computerized documents and exchange written e-mail messages. The same firm could also choose to inter-act with its affiliated firm's computer system, which resides in another city, by constructing a wide-area network ("WAN") to act as a bridge between the two systems. By interconnecting individual computer systems and sharing computerized documents, firms can dispense with the need to transfer large quantities of paper documents internally.
An enterprise could also allow third parties access to its computer system or network. The rationale being that computerized input from an outside source may frequently be both expedient and desirable. For example, a manufacturer could allow a supplier limited access to it's computer network in order to help coordinate sales and deliveries. Alternatively, a company could decide to provide its customers with computerized support. In this way, technical manuals and access to technical advisers could be made available to the consumer, strengthening his/her ties to the manufacturer. By permitting outsiders limited access to their computer system, businesses can keep in active contact with the world around them in a timely fashion and without the need to transfer large quantities of paper documents.
Finally, the unparalleled ability of computers to process, collate and index information has displaced the paper ledger as the preferred means of organizing and recording an enterprise's business transactions. With each passing day, more and more firms come to rely on computerized billing systems to manage the accounting of their time and disbursements. Thousands of firms have already connected their telephone systems, photocopiers and fax machines to their computers in an effort to keep track of every transaction. The records made from each of these transactions are kept in the computer system's storage facilities where they act as a sort of electronic footprint of all the firm's activities. By employing computerized accounting software, businesses dispense with the need for paper-bound ledgers.
THE POSSIBILITY OF SEARCHING AND SEIZING COMPUTER SYSTEMS
What this cursory examination of the increasing use of computer systems in the modern day enterprise makes clear is that the documented business histories of many organizations are now being stored electronically as well as on paper. Certain information about an enterprise's activities may, in fact, exist solely in the organization's computer system. Internal memoranda, electronic mail messages and accounting records can all be processed without the need to ever generate a paper copy.
This raises the issue of the possibility of searches and seizures of computer systems by Canadian law enforcement agents. The data stored on an enterprise's computers may provide important evidence that would assist in an investigation. Indeed, the computer may itself have been the instrument of the wrongdoing, as is often the case in matters of fraud, unlawful access of a computer system and copyright infringement. Confirming the notion that there will be an increase in the incidents of search and seizure of computer systems, the United Nations Manual on Computer-Related Crime wrote:
"In the future, new optical storage devices based on compact disc technology will further encourage the destruction of "originals" ("if paper originals still even exist) after the information is recorded in automated data processing systems. Due to these new technical developments, and the growing use of computers in all areas of economic and social life, courts and prosecution authorities will depend to an increasing extent on evidence stored or processed by modern information technology."1
All this raises the questions as to how Canadian law enforcement officials can be expected to properly execute the search and seizure of computer systems. The Criminal Code, as well as various other federal and provincial statutes, provide for the power of search and seizure and set out the conditions precedent to entry of the premises, the issuance of warrants, and the circumstances under which they may be executed.2 While some of this legislation specifically addresses the issue of computer searches3, some does not. In general, the whole issue of the search and seizure of computer systems remains a relatively new phenomenon. It is largely an unexplored area of procedural law and, as such, it poses new and interesting legal questions. The most pressing of these is to what degree traditional interpretations of the law can be applied to computerized environments? This point was made by Donald K. Piragoff when he wrote:
"To what extent are the traditional means of investigation applicable when the information sought is stored in a computer or is in the process of telecommunication."4
THE LAW OF SEARCH IN SEIZURE IN CANADA
Traditionally, the law of search and seizure in Canada has been governed by the Criminal Code, as well as other federal and provincial legislation. These statutes determine the procedural requirements for the issuance of various search warrants and the circumstances in which they may be executed.5Generally, the power confirmed by Parliament to search and seize emanates from the Criminal Code and from the pre-Confederation jurisprudence which existed prior to its codification. Section 487(1) of the Criminal Code6 provides the most general rule for the issue and use of search warrants. Other statutes, such as the Competition Act7, provide their own particular power to search and seize.
Generally, in order to conduct a lawful entry and search, the investigating officer must possess a search warrant or its equivalent.8 The failure to do so may result in an unlawful entry and search of the premises which can have the consequence of rendering the evidence obtained inadmissable. The pronouncement by Dickson J. in Hunter v. Southam Inc.,9 summarizes the courts' position on the matter:
"A requirement of prior authorization, usually in the form of a valid warrant, has been a constant prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the State to demonstrate the superiority of its interests to that of the individual."10
The law of search and seizure is also governed, in part, by the Canadian Charter of Rights and Freedoms.11 Section 8 of the Charter12 guarantees everyone the "right to be secure against unreasonable search and seizure." Section 24(2) provides a remedy for any violation of right by allowing the evidence obtained to be excluded where it would "bring the administration of justice into disrepute."13 The use of the word "everyone" is significant in that it has been interpreted in Southam Inc., v. Hunter14 to include corporate entities as well as human beings.15 Moreover, the use of the word "or" instead of "and" in s. 8 indicates that the procedure in question need not have been both an unreasonable search and an unreasonable seizure. One or the other will suffice.16 Section 8 of the Charter does not override the existing search provisions set out in the legislation, rather it compliments them by adding the additional requirement of reasonableness.17
The legal procedure of search and seizure can be divided into two distinct components. The informant, frequently the investigating officer, must first swear an information that one or more of the necessary conditions for authorizing a search warrant exists. It then remains at the discretion of the justice presented with the information whether or not to grant the warrant. If the warrant is granted, the investigating officer must then execute the warrant in a manner consistent with the law.
Search and seizure is generally viewed as an exceptional remedy.18 Consequently, it has traditionally been held that the warrant should only authorize the search for specified goods, with a view to a specified offence. In other words, the law requires that the information on which the search warrant is based include a sufficient description of the goods which are subject to the search. An insufficient description of the goods may invalidate the warrant.19 The underlying motive for requiring sufficient description is to avoid search warrants becoming an instrument of abuse.20 Commenting on the effect of the jurisprudence, James A. Fontana wrote:
"The effect of the pronouncement of the court here is that the officer may not set out a broad, general category of goods in his information, hoping thereby to seize everything and sift through it for evidence at his leisure"21
The test set out in R. v. Trottier22 was whether the person charged with executing the warrant could ascertain with accuracy what was to be seized. The purpose of a sufficient description was to limit the discretion exercised by the person executing the warrant. Conversely, in Re Lubell and the Queen23 the Court emphasised that while a search warrant is not intended to be a carte blanche, at the same time "...the applicants must be afforded a reasonable latitude in describing the things that they have reasonable grounds to believe that they might find."
In Bergeron v. Deschamps,24 the documents to be seized were described only by class or type. The Court found that it was objectionable that it was left up to the police to decide what to seize and what to retain.25
The general rule which emerges from all of these cases is that the search warrant must sufficiently describe the goods or documents to be seized so as to ensure that the law enforcement officials will not be required to exercise any great degree of discretion in identifying those items when executing the warrant.
THE SEARCH AND SEIZURE OF COMPUTERIZED ENVIRONMENTS
Law enforcement officials wishing to conduct a search and seizure of an office computer system must fulfil the same legal requirements as those seeking to conduct a search and seizure of a paper-bound office. In both instances the informant must swear an information attesting to the existence of specific goods which will afford evidence of a specific offence. And in both cases, it remains at the discretion of the justice reviewing the information whether or not to grant the warrant. Moreover, both the search warrant and the execution of the search in either case must meet the "reasonableness" requirement of s. 8 of the Charter.
There exists, however, certain objective, physical differences between a paper-bound office and a computerized office which could potentially impact on the nature and execution of the search warrant. In a paper-bound office documents tend to be stored in four distinct locations; filing cabinets, ledgers, archive boxes and desk drawers. In a computerized office the electronic documents are stored in four different possible locations; the central storage device ("server"), the disk drives of individual computers (sometimes called "hard drives"), individual diskettes and paper printouts.
It is important to note that servers, hard disks and diskettes can all contain numerous unrelated documents which may, in fact, belong to different individuals. A server is the centralized storage mechanism of a computer network. Consequently, servers tend to contain thousands, and sometimes millions, of documents, many of which were created by different employees. Hard disks are usually associated with individual computers, but may nevertheless may contain a multitude of completely unrelated documents. The hard disk on a manager's computer, for example, might contain a copy of an important business report, various personal and confidential e-mail messages and a grocery list. Individual diskettes are equally capable of storing multiple documents, but benefit from being much more portable then either a server or a hard drive (which are usually built into the computer).
When searching a computer system it is frequently desirable to search and seize the server, hard disk or diskettes in their entirety. There are two basic reasons for this. Firstly, it is often more expedient for the purposes of both the search and the seizure to confiscate the entire computer, server, hard drive or diskette rather then attempt to sort through them searching for individual files. By seizing the computer system, server, hard disk, or diskette in it's entirety, law enforcement officials can peruse the documents off the premises and at their leisure.In may also be necessary to seize the entire computer system and its associated programs ("software") in order to be able access the information on the disks. For example, a police officer could seize all of the diskettes of a company that uses an exotic type of computer system, but would later be hard pressed to analyze the information on those diskettes without the computer and its software. Moreover, nowadays computers are so small that to seize them is infinitely easier than attempting to seize numerous filing cabinets and desk drawers. Consequently, where an office contains both paper documents and electronic copies, it may simply be more practical to execute a search and seizure of the device on which the electronic documents are stored.
Some computer systems are so large and unwieldy as to make their seizure impossible in the conventional sense of the word. For example, law enforcement officials may attempt to search a gigantic computer system in an effort to identify only a few fraudulent documents. Those documents could exist anywhere within the computer's storage devices, which may also be filled with hundreds of thousands, or even millions, of other documents. At the same time, the computer system may be actively processing new and incoming documents which would make it virtually impossible to adequately maintain security over the site while allowing the business to continue to function26
This leads to the second reason for preferring, where possible, to seize the entire computer system instead of individual files. Law enforcement agencies frequently point to the fact that computer systems can be programmed to destroy sensitive data at the push of a button and that computer networks provide ample opportunity for undetected electronic access by which intruders may seek to tamper with the evidence. They worry that computer users will have rigged their machines with all sorts of booby-traps and "degaussers."27 Computers are, by their nature, highly programmable. And anyone who is well-versed in the language of computers could try to hide, encrypt, misname or misrepresent the data for which the search is being conducted. For example, an office employee who is hiding lists of stolen credit card numbers on his computer at work could, with relative ease, encrypt the file with a military strength algorithm and manipulate the computer's operating system to hide the file from prying eyes, essentially rendering it invisible to the uninitiated. Consequently, law enforcement officials argue, it is best to seize the entire system. Summing up this argument, Silvergate wrote:
"According to this view, prudence suggests that the computer search will be futile, unless the entire system is seized and removed, so that the contents can be examined at leisure."28
The search and seizure of computer system, as has already been stated in this paper, is a relatively new phenomenon. As a result, there is extremely limited case law on the subject matter. What ever case does exist, however, suggests a tendency amongst law enforcement officials to seek to obtain search warrants which allow for the search and seizure of entire computer systems, instead of for individual files contained within computer systems, servers, hard disks or diskettes. The following incidents have already occurred or have been reported in the jurisprudence:
In R. v. Jordan,29 the R.C.M.P. obtained a warrant to search the premises of the Vanguard Venture Corporation, and several other corporations, as part of an investigation into the alleged counterfeiting of U.S. Treasury cheques by the accused. The warrant included the right to search:
"...business or personal computer systems, software packages, peripheral equipment, disc drives, manuals, discs, data discs, notes and instruction material relating to the aforementioned items..."
In November of 1991, the R.C.M.P. raided the Quebec home of computer vendor and consultant Michael Solomon, who ran a popular, local computerized bulletin board system. The R.C.M.P. seized essentially all of the accused's computer hardware and software, as well as a laser printer and a pair of headphones. In seizing the computer system, the R.C.M.P. also seized the e-mail of all those individuals who were members of the bulletin board.30 To date, none of the equipment, with the exception of the headphones, has been returned.
In the American case of Steve Jackson Games Inc., et al. v. United States Secret Service, United States of America, et al., the offices of a small Austin publishing company were raided by the Secret Service in March 1990, because one of the employees of the company was suspected of having participated in an unlawful computer activity. The Secret Service seized all of the company's computer systems, back-up disks, printers and a single pocket calculator. At no point was the company, owner, or any of the other employees considered to be a suspect. As a result of the seizure, the company's business activities were severely disrupted and several employees had to be laid off. Amongst the computer systems seized was an electronic bulletin board maintained by the company as a means of communicating with its customers. The bulletin board contained the private e-mail messages of several employees and customers.
Referring to other American cases involving the search and seizure of entire computer systems, Harvey A. Silvergate wrote:
"It would be impossible to exaggerate the frequency with which computer information banks containing private information of third parties are seized, ostensibly in search of criminal evidence. A greenhouse owner in Indiana, charged with aiding and abetting in the cultivation of marijuana, had his computer equipment seized. More bizarre is the story of the nonprofit California cryogenics organization, whose computer equipment and cryogenics-related bulletin board were seized and shut down, in the course of a coroner's office investigation into the whereabouts of a missing human head."31
On the matter of the wholesale seizure of computer systems, Mitch Kapor, founder of Lotus 123 and president of the Electronic Frontier Foundation wrote:
"Often, warrants have provided for the wholesale seizure...without any requirement that the officers executing the warrant review the data contained on each disc and seize copies only of relevant files. Because of the voluminous amount of materials that can be stored on a computer disc, such a seizure... permits the seizure of a great many files for which there is no probable cause to seize."32
THE REQUIREMENT OF SUFFICIENT DESCRIPTION
The search and seizure of a computer system must respect the same rules and regulations prescribed for the search and seizure of paper-bound offices. As was previously noted, law enforcement officials must allege the existence of specific goods for a specific offence. The small sampling of cases outlined above demonstrates the tendency amongst law enforcement agents and the courts to employ search warrants which are overly broad in that they permit the seizure of entire computer systems rather than a few select files from within a computer system. Such warrants are tantamount to allowing the seizure of every filing cabinet, archive box, ledger and desk drawer in an office in order that a handful of files may be seized.
Harvey A. Silvergate, in his seminal article on the legal and ethical issues surrounding the search and seizure of computer system in the United States, referred to this trend as:
"...the unequivocal determination of the government to conduct investigative seizures of entire computer systems, even when only a few files may be relevant to an investigation or prosecution..."33
This practice of conducting wholesale searches and seizures of computer systems is a clear violation of the requirements set out for search warrants. Moreover, it constitutes a gross violation of the rights of computer users as guaranteed by s. 8 of the Charter. Such seizures can have a devastating impact on those users who are essentially third parties to the activities being investigated. Their businesses can be crippled, their sophisticated equipment can be removed and/or mishandled and people can be laid off. Moreover, their privacy can be severely infringed upon when their e-mail and other confidential electronic documents are confiscated as part of the general seizure. Harvey A. Silvergate wrote:
"Where the object of the seizure is a bulletin board, potentially thousands of users are deprived of a forum in which to communicate, and their words (recorded in the computer system housing the bulletin board) now are open to government scrutiny. The seizure of a small business's computer system, especially one involved in sales or research and development, effectively destroys the business. In larger companies, when the investigation into the operations of one department or subsidiary leads to a computer seizure, the operations of the entire company can be crippled or frozen. And, of course, the seizure of one or two pieces of computer equipment in a law office effectively can constitute the seizure of all of the office's client and billing files."34
Concerned with the possible damage arising from such broad search and seizures, the United Nations Manual On Computer-Related Crime wrote:
"Application of the traditional powers of search and seizure might, however, cause problems...if the legal principle of minimum coercion or of proportionality makes it unlawful to seize comprehensive data carriers, or complete computer installations, in order to gather only a small amount of data. Similarly, search and seizure of comprehensive data carriers could cause serious prejudice to business activities or infringe the privacy rights of third parties."35
The justifications invoked by law enforcement agencies, those of expediency and the desire to preserve the evidence, are insufficient to exonerate the broad, unrestricted searches and seizures of computer systems. While it may be more expedient for law enforcement agencies to conduct searches off premises, mere convenience cannot account for the infringement of the fundamental rights of computer users. Law enforcement personnel should be required to conduct the search in exactly the same way they would be expected to search a paper filing system. On this point, Mitch Kapor writes:
"We believe that only in the situation where an entire organization is permeated with fraud or other misconduct is the wholesale seizure of computer discs appropriate. In all other circumstances, the search of the computer discs for seizable data should be conducted on the organization's premises. While this type of on-premises search may be time-consuming, the same exact procedure is followed when officers executing a warrant are searching through hard-copy files for seizable material. The judicial officer should allow the wholesale seizure of discs and a search off-premises of these discs for seizable material only if the affiant can present specific factors which demonstrate a necessity for an off-premises search. Further, if the judicial officer does permit an off-premises search of the computer discs, the warrant should require that such a search take place promptly..."36
Additionally, the concern over the possible destruction of data by subject of the search is overstated. Law enforcement personnel appear to focus exclusively on what could be removed. The appropriate question for the judge issuing the search warrant should not be what could go wrong, but "for what adverse events probable cause has been shown."37 While it is true that an intelligent computer user could erase, replace, hide, encrypt, modify, misname, misrepresent or physically destroy the data in the storage device or media., that does not necessarily mean that one should always find probable cause to believe that a particular computer owner has done so, and then authorize a highly intrusive search.38
To allow law enforcement agents to execute boundless search warrants and to seize entire computer systems or disc drives on which a multitude of unrelated documents may exist is no different from allowing them to ransack an office.39 The only way to account for the existence of such expansive warrants is a lack of sensitivity to the issue on the part of the officers seeking the warrants and on the part of the judiciary granting them. As Mitch Kapor wrote:
"We are now about a decade and a half into the era of affordable desktop computers. Yet for most people--and especially for the legal community--the civil-liberties implications...have only barely begun to register...When law enforcement officials lack understanding both of the new technology and--just as important--of how it is normally used, they simply cannot conduct the discretionless, "particular" searches and seizures...when...those searches and seizures involve computer equipment and data." 40
Law enforcement agents and the judiciary must be sensitized to the need for exercising greater caution in the drafting of search warrants for computer systems. Because of the fact that computer systems can contain software, business documents, accounting information, privileged client-attorney papers and personal e-mail, judges must be careful to insist on greater specificity in the wording of the information and warrant. As Jay Becker wrote in his article entitled The Trial of Computer Crime41:
"One need only consider the requirements for a search warrant in light of the complexity of computer technology to begin to understand the search and seizure issues inherent in computer crimes...Both in drafting a warrant and serving it, problems can be severe. Simply by describing what is to be seized and how it can be recognized, so that the magistrate will find the particularity requirements of the Penal Code satisfied, is a bit more difficult when premised on an understanding of computer language, and perhaps computer operations as well."
If the above arguments are correct and law enforcement officials are required to restrict the ambit of their seizure to particular documents stored on the server, hard disk or diskette, as opposed to seizing the medium of storage in its entirety, then it necessarily raises the issue of whether the investigating officer is authorized in law to search and seize individual documents stored on a computer system.
It should be pointed out that, in at least one specific case, the investigation officer may be free to seize the medium of storage in its entirety. Where a box of diskettes is clearly labelled, and every diskette in the box is also clearly labelled, and the labels provide a clear indication of the nature if the information stored on the diskettes, then they may be seized, so long as their contents falls within the scope of the warrant.
In all other cases, the investigating officer would be required to search through the stored information on the premises in order to determine whether or not it falls within the purview of the warrant. Such a seizure would require the officer to make use of the on-site computer equipment and, in all likelihood, its associated software. It remains unclear in Canadian law, at this time, whether a general warrant to search and seize granted in virtue of s. 487 of the Criminal Code includes the power to make use of on-site equipment when executing the warrant. The United Nations Manual expressed particular concern for this issue when it wrote:
"...such a construction depends on the question of whether and to what degree the powers of search and seizure include the power to use technical equipment and (copyrightable) programs belonging to a witness or to an accused, in order to search and/or fix computer data. Only a few laws state that in the execution of search and seizure all `necessary measures' may be taken. Consequently, in many legal systems an effective search for `pure data or information' is not provided for by the law."
As was previously noted, s. 487 of the Criminal Code provides the general authority for obtaining a judicial search warrant in Canada. It empowers the investigating officer to search and seize "anything" which was used or intended to be used in the commission of a prior or suspected offence, or which affords evidence of the commission of such an offence.42 The legislation makes no mention, however, of the lengths to which the investigating officer may go to effect the search. It does not specify whether the power of search and seizure can be extended to the use of on-site computer equipment and software.
Even if law enforcement officials are authorized to use the on-site equipment in conducting their search, there remains an issue as to whether they can lawfully effect the seizure of intangible computer information. Section 487 of the Criminal Code has largely been interpreted in the context of the search and seizure of corporeal objects. The Law Reform Commission of Canada, on reviewing the law's approach to the seizure of intangibles in Canada, stated:
"...[T]he piecemeal development of search and seizure powers over the past 300 years has resulted in the existence of certain anachronisms. One such anachronism is ... the restriction of most search and seizure powers to "things," ... This focus excludes from coverage intangible forms of property, such as funds in financial accounts and information from computers..."43
If Canadian law enforcement agents are unable to seize computer data because of its allegedly intangible quality, then the search and seizure of a computer system would become extremely problematic. Law enforcement agents would, in theory, be authorized to seize the entire computer system or corporeal data carrier due to their tangible nature, but s. 8 of the Charter would effectively prevent such a seizure since, as it has been argued, the indiscriminate seizure of the entire computer system would violate the requirement for particularization in the warrant. If the computer cannot be seized and the intangible data cannot be confiscated because of its intangibility, then the search would be effectively frustrated.
The paradoxical concept of the seizure of intangibles has only been dealt with in a handful of Canadian cases. In Re Banque Royale du Canada and The Queen44 the Court held that one cannot obtain a warrant to seize intangibles. In that case, the police were attempting to use a s. 487 warrant to seize monies deposited in a bank account. The Court held that a credit balance in a bank is an intangible, merely proof that the bank has certain sums on deposit. In R. v. Wong45 the Ontario Court of Appeal held that s. 487 could not be used to obtain permission for surreptitious video surveillance. In its decision the Court emphasised that:
"The decision of the Quebec Court of Appeal in Re Banque Royale du Canada and the Queen...made it clear that a search warrant cannot be issued for intangible objects. It is hard to imagine anything more intangible than the ephemeral, flickering video reproduction of a human action."
To better understand the relevance of these decisions to the computer environment it is necessary to review certain technical aspects of the manner in which data can be stored on a computer.
The information stored in a computer can be kept in either an active or passive state. The vast majority of computer data is stored in a passive state. This includes all data kept on a server, hard disk or diskette and includes magnetic as well as optical-magnetic disks46. When information is stored in a passive state, it is represented by fixed, microscopic impulses etched on to a magnetic or optical-magnetic platter. These impulses or etchings cannot be seized in the conventional sense because they are merely a function of the electro-chemical state of a tiny portion of the platter.
Data is kept in an active state when it is in the midst of being processed. The computer loads the information into an active portion of memory in order that changes can be effected to the data by the computer user. For example, when a person drafts a document on a word processor, the document which is in the process of being drafted is kept in active memory. Only when the person "saves" the document for the first time is a copy stored in the passive memory. As the person continues to work, two copies of the information actually exist. The static copy resides in the passive memory (i.e. it is stored on the hard disk), while the active copy is the one being worked on.
As a result of the fact that information stored in a passive state (i.e. on disk) cannot be seized in the conventional sense, it would seem to fall within the confines of that small category of cases outlined above which prohibit the search and seizure of intangibles. However, it may be possible to distinguish Re Banque Royale and Wong from any attempt to search and seize information on a computer system.
In the former case, the police were trying to make use of s. 487 of the Criminal Code to effect a seizure of funds in a bank account. The Court was of the opinion that seizing money from an indiscriminate pool of assets was not the goal of s. 487. It would have afforded no additional evidence of the offence being investigated.47 This case would appear to be eminently different from the search and seizure of information on a computer system which is, in many ways, extremely similar to the search and seizure of a paper-bound office. Both can afford important evidence about the matter under investigation.
In Wong, the police sought to retroactively justify the surreptitious video surveillance of a floating gambling house by referring to s. 487 of the Criminal Code and various provisions for warrantless searches. The Court held that s.487 could not be used to authorize the installation of video cameras and that video images were intangible items and, therefore, incapable of seizure. In this case, law enforcement officials were attempting to observe and record on-going activities. This would seem to fall much closer to the realm of electronic surveillance law then search and seizure.48 In the search and seizure of computer system, the information is generally static (i.e. stored in a passive state) and replaces or supplements existing documentation.
Even if data cannot be seized under s. 487 of the Criminal Code, the argument could still be made that data could simply be seized by copying it onto a diskette and erasing the original. With a copy of the data in hand, and the original information destroyed, it could argued that the investigating officer has succeeded in "seizing" the data. This argument has not been dealt with explicitly by the courts, but it raises the further issue of whether or not Canadian law enforcement officials may be permitted to copy intangible data instead of seizing it.
Section 29(7) of the Canada Evidence Act49requires that the search and seizure of books and records of financial institutions, except where otherwise provided for by a search warrant, be limited to the making of copies. The provision for non-financial institutions, s. 30, leaves the matter to the discretion of the law enforcement officials.50 Accordingly, where a police officer attempts to search and seize the computer system of a financial institution, assuming for the moment that he is allowed to make use of the on-site equipment and that he cannot seize that data in the conventional sense because it is intangible, he may presumably make a copy of the data by either printing the particular files or saving them to his own diskette. Similarly, if he attempts to execute search of a non-financial institution he will be limited to copying the files since he cannot "seize" them in the conventional sense.
Notwithstanding the vagaries of a search and seizure performed under the auspices of s. 487 of the Criminal Code, other federal and provincial statutes also provide for the power to search and seize. Some of them specifically address the issue of search and seizure of computer systems. They grant the investigating officer the power to make use of the on-site equipment and specifically authorize him to reproduce records from the data.51 Referring to this legislation, Donald A. Piragoff wrote:
"For example, included within a scheme for the search and seizure of records or anything else that may afford evidence of the contravention of the Competition Act are a number of provisions concerning searches of computer systems. Ss. 16(1) provides that a person who has obtained a judicial warrant under the Act `may use or cause to be used any computer system, may reproduce the record or cause it to be reproduced from the data in the form of a printout or other intelligible output and may seize the print-out or other output for examination or copying.' Ss 16(2) imposes a duty upon the person who is in possession or control of any premises to permit a person named in a warrant to exercise the powers authorized in ss. 16(1) ."52
One may wonder whether a negative inference can be drawn from these other statutes in order to conclude that, since there are no similar express provisions in s. 487 of the Criminal Code permitting the search and seizure of computer systems, no such right, therefore, exists. Section 487 makes no mention of permitting the investigating officer to "use or cause to be used any computer system." It does not explicitly allow for the seizure or copying of computer records and, to date, the limited jurisprudence available would tend to indicate that s. 487 does not permit the seizure of intangibles such as computer information.
In 1988 the Law Reform Commission of Canada took note of this incongruity53 and recommended that the Criminal Code be revised to better reflect the modern trend for storing information on computers. It suggested that specific powers be granted to law enforcement officers to allow them to make copies and to search and seize records regardless of the manner in which they were stored.54
In 1993, Bill C-109 55 was called into force, amending the Criminal Code. Section 487.01 56 was added as yet another alternative to the search and seizure powers provided by s. 487. The new section allows for the "use of any device or investigative technique or procedure" or permits the investigating officer to "do anything described in the warrant" so long as the judge is satisfied that "there are reasonable grounds to believe that an offence of any Act of Parliament has been or will be committed" and that information concerning the offence will be obtained through the measures sought. The judge must be further satisfied that the warrant is in the "best interests of the administration of justice" and there must be no other provisions in any Act of Parliament which would allow the technique or device to be used.Finally, the warrant issued must contain such terms and condition as the judge considers advisable to ensure that the warrant is reasonable in the circumstances.
Section 487.01 was introduced in part as a response to cases like Wong, in order to provide law enforcement officials with a valid means of performing warranted surreptitious video surveillance. The new section was also enacted partially in response to the case of R. v. Duarte,57in which police officers were prevented from adducing evidence obtained via a tracking device.
The constitutional validity of s. 487.01 can be called into question because it purports to allow a judge to validate procedures and devices which would, prima facie, be held to be invalid in light of existing jurisprudence and s. 8 of the Charter. It is far from clear that a judge can, in fact, possess such a power.
Assuming that it's constitutional validity can be upheld, the impact of s. 487.01 on the search and seizure of computer systems in Canada could be profound. The previously discussed inadequacies and vagaries of s. 487 would not longer pose a potential obstacle to law enforcement officials seeking to conduct a search of a computerized environment. Such an officer would need only apply for a warrant in virtue of s. 487.01 in order to obtain authorization to do all those things which were not expressly permitted under s. 487. He could then be empowered make full use of the computer system and its software in any manner which the court saw fit. He could seize any portion of the computer system and its assorted components so long as the court permitted it, and he could be allowed to reproduce any record from the data in the form of a printout or in any other intelligible output for examination or copying.
PRIVACY OF E-MAIL
One issue which has already been alluded to in this paper is the possible violation of an individual's privacy when his electronic mail has been inadvertently or advertently confiscated by agents of the state. Whenever law enforcement officials indiscriminately seize a computer system, server, hard disk or diskette, they risk including in that seizure the confidential e-mail of innocent third parties. The right of a third party to the privacy of his e-mail is a pressing issue, given the ever expanding role of electronic mail in our society. It is worth noting that the current practice of the R.C.M.P. is to read all e-mail confiscated during the seizure of computer bulletin boards.58
In the case of Steve Jackson Games, the American Secret Service seized all of the computer equipment of a small Austin company in the course of investigating alleged criminal wrong doings by one of the company's employees. No charges were ever pressed against the company or any of its other employees.
The Steve Jackson Games company, a publisher of popular role playing manuals, maintained a bulletin board service for its customers on one of its computers. The bulletin board, jokingly called "Illuminati" by its patrons, was used by the customers and the staff to exchange ideas and provide product information. The board also had networked mail links to a wide variety of other locations and, consequently, was used by the customers and staff for sending and receiving e-mail which were of a personal nature and were completely unrelated to the business carried on by the company.
When the Secret Service raided the company and seized all of the computers, it indirectly seized all of the e-mail of the Illuminati users. In his decision, United States District Judge Sam Sparks pointed out that the investigating officer:
"...knew or had the ability to learn the seizure of the Illuminati bulletin board included private and public electronic communications and E-mail."
The judge went on to find that the Secret Service personnel or its delegates had read all of the electronic communications seized and had even deleted certain information.and communications from the computers. As a result, the Court awarded the plaintiffs statutory damages for a violation of the Stored Wire and Electronic Communications and Transactional Records and Access Act.59 The Court declined to find that there had been a violation of the Wire and Electronic Communications Interception and Interception of Oral Communications Act60because it did not consider the electronic communications and e-mail in question to have been "intercepted" within the meaning of the Act.
It has already been argued in this paper that, when conducting a search of a computerized environment, law enforcement officials must restrict themselves to seizing only those files which fall within the scope of the warrant. The jurisprudence, along with s. 487 of the Criminal Code, establish a requirement for sufficiency of description which the wholesale seizure of an entire computer system, server, hard disk or diskette prima facie violates. Similarly, the indirect seizure of the electronic communications or e-mail of third parties who are not the object of investigation would constitute an infringement of this requirement for particularization. Such third persons who seek to take an action for the inappropriate seizure of their electronic correspondence, would likely possess the necessary locus standi to contest the seizure and avail themselves of their constitutional right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter. According to James A. Fontana, a third party can have the necessary locus standi so long as he can demonstrate some interest in the goods seized. He writes:
"Certainly the interpretation of `everyone' in s.8 as provided by Cavanagh J. in Southam Inc. v. Hunter is broad, all-encompassing and not restricted to the target of the search warrant...Conversely, not every person has the locus standi to seek a legal remedy with respect to unlawful or unreasonable search...At the very least this would require some possessory interest in the premises searched or in the goods seized; this would include a third party who is not suspect but who is affected either directly or indirectly by the search or seizure" [emphasis added]
However, the rights guaranteed by s. 8 of the Charter can only be said to apply where there is a reasonable expectation of privacy. In the case of R. v. Lubovac,61 where the police had obtained a telephone number from an informer with which they were able to obtain messages which had been broadcast and recorded on the accused's paging system, the Court held that the messages were not protected by s.8 of the Charter because, given the fact that pager messages could be overheard by people on the street, there could not be, either from the subjective or objective aspect, a reasonable expectation of privacy surrounding the conversation.62 The Court re-emphasised that:
"The right of security from unreasonable search arises only in circumstances where there is a reasonable expectation of privacy. A dwelling, an office, an automobile or a briefcase are good example. But open conversations are not protected because to expect that privacy surrounds them is not reasonable R. v. Wong (1987), 34 C.C.C. (3d) 51 at p. 63, 56 C.R. (3d) 352 (Ont. C.A.)."63
The fundamental question is whether one can possess a reasonable expectation of privacy when sending, receiving and storing e-mail. In the case of Regina v. Newall et al. (No. 3),64 which dealt with the interception of private communications under Part IV.1 (now Part VI) of the Criminal Code, the British Columbia Supreme Court held that there can be no reasonable expectation of privacy when one sends a letter. The Court stated:
"...when someone sends a letter to another he may hope its contents will not be revealed to a third person, yet it would be unreasonable for him as a reasonable person to expect it would not be read by others at any time. He knows or should know the recipient might voluntarily show the letter to others, or it might get misplaced and come into the hands of a third party...Unlike a letter, a telephone call or private discussion is not given to others for the purposes of transmission nor is it intended by the originator that the words be preserved for later reference."65
Conversely, Newfoundland district Court Judge Riche in R. v. Crane66 wrote:
"The search and seizure of private mail is in my opinion a most serious matter. The privacy of one's mail is a most important and highly-protected element of our society. Should it then be less protected than our right to make communication with another by using the telephone? If I write a letter to someone and post it, should it be less protected than if I use the telephone for that purpose? Except for normal postal inspection of packages, should there be a right in the police to seizure and search items in the mail without prior authorization?...It is my opinion that a person's private mail should not be searched or seized without authorization, which authorization should be granted only by a person acting judicially, such as a magistrate or a judge. The search and seizure of private mail without authorization should be considered prima facie an unreasonable act."
In a computer environment, the question of a reasonable expectation of privacy for mail may be further confused by the decision in Wong. In that case, the police installed a video camera to monitor a large-scale gambling house operation that had been set up in a hotel room. The Court decided that the occupants of the room could not have had a reasonable expectation of privacy because Wong had invited and accepted so many people into the room. The problem which this poses for office computer systems is that they frequently allow access to a large number of people. In fact, that is one of their chief attractions. One could argue from the decision in Wong, if a number of people have access to one's computer, their very numbers can destroy one's expectation of computer privacy.67
DEFINING A PREMISES
An additional area of concern, when seeking to obtain a search warrant for a computer environment, is the ability to properly define the premises to be searched. Computer systems, especially computer networks, while often made up of relatively small individual computers, can be spread over vast areas. Some computer networks may be spread out over an entire office floor, others may occupy an entire building, still others may span different cities, while others may even span several continents.
Section 487(1)(d) of the Criminal Code states that the justice may issue a warrant to search a "building, receptacle or place..." To avoid search warrants becoming instruments of abuse it has long been understood that if a search warrant fails to accurately describe the premises to be searched then it will be invalid.68 A certain amount of precision is, therefore, required when drafting the warrant to ensure that it clearly and unambiguously informs the person executing the warrant of the location of the premises to be searched. For example, in the case of Re Yomer69, a warrant to search any home in a very wide area was struck down as being invalid.
The strict requirement to clearly define the locus of the search can be extremely problematic for searches involving computer networks. Referring to this issue, the United Nations Manual wrote:
"Special problems also arise with respect to search and seizure in computer networks. Here, it is questionable whether and to what extent the right to search and seize a specific computer installation includes the right to search databases, which are accessible by this installation but which are situated in other premises."70
One such incident has already occurred in Canada. In that case, an R.C.M.P. officer arrived at the scene of a search of an office computer system, only to discover that the main computer was located at a different address. Nevertheless, the officer used a computer terminal located at the address listed in the warrant to transfer the information from the address not listed in the warrant and print it out. The printed copy of the data was then seized.71
While Canadian courts have sometimes stretched the definition of "place" to include garages, and all of the buildings located on a well defined tract of land,72 the extensions allowed for are interpreted very narrowly. Consequently, it becomes extremely difficult to see how the courts will allow for the seizure data from a computer in one location by a terminal situated in another. On the other hand, all of the previous cases can be distinguished in that they do not exhibit the unique characteristics of a computer network. Where an employee in Montreal gets his information from a computer in Toronto, and saves his work to a computer in New York, it can be argued that the whole notion of a "place," as set out in the jurisprudence, evaporates and is replaced by the notion of a "thing."
CONCLUSION
With the coming of age of the information society, police, judges
and lawyers must all be
increasingly sensitive to the important civil liberties issues
which accompany modern technology.
Law enforcement officials and judges must work together in order
to avoid drafting overly broad
search warrants which potentially infringe on the fundamental
rights of Canadian computer users.
Legislators must strive to constantly amend older laws in an
effort to keep them up-to-date with
the changing technology and in sync with newer statutes. As
information begins to travel
throughout our society with ever greater freedom, the courts must
vigilantly guard the computer
users' rights to privacy. And where older paradigms and legal
theories are no longer applicable,
the entire judicial community must be prepared to accept new
conceptual frameworks and ideas.
1 United Nations Manual on Computer-Related Crime [hereinafter United Nations Manual]
2 James A. Fontana, The Law of Search and Seizure in Canada, 3d ed. (Toronto : Butterworths, 1992) at 3.
3 Competition Act R.S., 1985, c. C-34; R.S. 1985, c.19 (2nd Supp.); Canadian Environment Protection Act R.S. 1985, c.16 (4th Supp.); Fisheries Act R.S. 1985, c.F-14, R.S. 1985, c.30 (1st Supp.).
4 Donald A. Piragoff, Computer Crimes and Other Crimes against Information Technology in Canada (1993), 64 Revue Internationale de Droit P‚nal 201 at 240.
5 Fontana, supra, note 2 at 3.
6 s.487(1) reads: A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act or any other Act of Parliament, or (c) anything that there is reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant. may at any time issue a warrant under his hand authorizing a person named therein or a peace officer (d) to search the building, receptacle or place for anything such thing and seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.
7 R.S. 1985, c.C-34; R.S. 1985, c.19 (2nd Supp.)
8 Fontana, supra, note 2 at 6.
9 (1985), 14 C.C.C. (3d) 97 (S.C.C.)
10 Ibid., at 109.
11 Charter of Canadian Rights and Freedoms, Part I of the The Constitution Act of 1982, Annexe B of the Canada Act 1982, (U.K.) 1982, c. 11 [hereinafter Charter]
12 Section 8 reads: Everyone has the right to be secure against unreasonable search and seizure.
13 Section 24(2) reads: Where, in the proceedings, under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
14 (1982), 68 C.C.C. (2d) 356 (Alta. Q.B.), at 364; revd. 3 C.C.C. (3d) 497 (C.A.); affd. 14 C.C.C. (3d) 97 (S.C.C.)
15 Fontana, supra, note 2 at 686.
16 Ibid.
17 Ibid.
18 See Re Black and the Queen (1973), 13 C.C.C. (2d) 446 (B.C.S.C.), at 448.
19 Fontana, supra, note 2 at 73.
20 Re McAvoy (1971), 12 C.R.N.S. 56 (N.W.T. Terr. Ct.), at 65.
21 Fontana, supra, note 2 at 73.
22 (1966), 4 C.C.C. 321 (Que. C.A.).
23 (1973), 11 C.C.C. (2d) 188 (Ont. H.C.)
24 (1977), 33 C.C.C. (2d) 461 (S.C.C.)
25 Fontana, supra, note 2 at 77.
26 Jay Becker, The Trial of a Computer Crime (1980) Vol. II Computer/Law Journal 441 at 443.
27 In this context, a degausser means a device which wipes the information off diskettes by way of an electrical field.
28 Harvey A. Silvergate and Thomas C. Viles, Constitutional, Legal and Ethical Considerations for Dealing with Electronic Files in the Age of Cyberspace, Archived/Published to the Net: August 7, 1991. Available via FTP or Gopher from Net node FTP.EFF.COM.
29 (1992) B.C.J. No. 2890 (QL) [hereinafter Jordan].
30 Personal communications with Michael Solomon.
31 Silvergate, supra, note 27 at footnote 7.
32 Mitch Kapor, Civil Liberties Implications of Computer Searches and Seizures: Some Proposed Guidelines for Magistrates Who Issue Search Warrants (1991) Archived/Published to the Net, available via FTP or Gopher at the FTP.EFF.COM Internet node.
The Electronic Frontier Foundation is an American civil liberties group headquartered in Cambridge, Massachusetts, dedicated to "civilizing the electronic frontier." It "aims to lobby for laws to facilitate public computer networks, and to help in the legal defense of those it considers unjustly charged with computer crimes." See Dyson, "Commentary: Hackers' Rights," Forbes, Jan. 7, 1991, at 288. As part of EFF's work, it has undertaken litigation efforts on behalf of parties who have been subjected to computer searches and seizures. EFF also has intervened as amicus curiae in other cases implicating the constitutional liberties of bulletin board operators.
33 Silvergate, supra, note 27 at 5.
34 Ibid.
35 United Nations Manual, supra, note 1 at 42.
36 Kapor, supra, note 32 at 4.
37 Silvergate, supra, note 27 at 6.
38 Kapor, supra, note 32 at 2.
39 Silvergate, supra, note 27 at 8.
40 Kapor, supra, note 32 at 1.
41 [1980] Computer/Law Journal Vol.II. 441 at 443.
42 Piragoff, supra, note 4 at 241.
43 "Police Powers - search and Seizure in Criminal Law Enforcement" (1983). p. 78.
44 (1985), 18 C.C.C. (3d) 98, (Que. C.A.) leave to appeal to the Supreme Court of Canada refused loc. cit. [hereinafter Re Banque Royale]
45 (1987), 34 C.C.C. (3d) 51, 56 C.R. (3d) 352 (Ont. C.A.) [hereinafter Wong]
46 On a more technical level, Flash memory exists somewhere between the active and passive states of information storage. Essentially, it is the use of memory chips to store information in the place of a hard disk or diskette. It is extremely expensive to use active memory chips as a form of passive storage but it has the benefit of using very little space. Consequently, Flash memory is often found in notebook and laptop computers. For the purposes of this paper, flash memory will be considered a form of passive storage.
47 Note that the current method for enacting such a seizure is set out in s. 462.33 of the Criminal Code.
48 The Court also held that the warrantless installation of a video camera would not constitute a breach of s.8 the Charter where the occupant did not have a reasonable expectation of privacy. For a complete discussion of this case as it relates to computer law please see Ken Chasse, Surreptitious Video and Computer Surveillance: Warrantless SVS and SCS (1987), Vol. 4 Canadian Computer Law Reporter 95.
49 R.S., c. E-10.
50 Piragoff, supra, note 4 at 241.
51 Canadian Environmental Protection Act, R.S. 1985, c. 16 (4th Supp.) s. 101(3)-(6); Competition Act, R.S., 1985, c. C-34; R.S. 1985, c. 19 (2nd Supp.); Fisheries Act R.S. 1985, c.F-14, R.S. 1985, c.31 (1st Supp.)
52 Piragoff, supra, note 4 at 241. It is interesting to note how these statutes, which appear to to provide specific provisions for the search and seizure of computer environments, have been interpreted and applied by Canadian law enforcement officials. In a conversation with a member of the R.C.M.P. who is currently assigned to the department responsible for the investigation of computer crimes, it was explained to me that the provisions of the Competition Act have been interpreted by in-house counsel in such a way as to only permit the making of photocopies. As a result, in all matters of investigation which come under this Act, the R.C.M.P. will refrain from seizing any computer system and will restrict itself to the making only photocopies.
53 S.C. 1988, c. 37.
54 Piragoff, supra, note 4 at 242.
55 An Act To Amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act S.C. 1993, c.40.
56 Section 487.01 (1) reads: A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property if (a) the judge is satisfied by an information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. (2) Nothing in subsection 91) shall be construed as to permit interference with the bodily integrity of any person. (3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
57 [1990] 1 S.C.R. 30.
58 Conversation with an R.C.M.P. Sergeant Dec. 15, 1993.
59 18 U.S.C. Sec. 2701 et seq.
60 18 U.S.C. 2510 et seq.
61 (1989), 52 C.C.C. (3d) 551 (Alta. C.A.).
62 Ibid., at 560.
63 Ibid.
64 (1982), 69 C.C.C. (2d) 284.
65 Ibid., at 286.
66 (1985), 45 C.R. (3d) 368
67 Chasse, Warrantless SVS and SCS, supra, at 98.
68 Re McAvoy (1971), 12 C.R.N.S. 56 (N.W.T. Terr. Ct.), at 65.
69 (1969), 7 C.R.N.S. 239 (B.C.S.C.).
70 United Nations Manual, supra, note 1 at 42.
71 Conversations with R.C.M.P. Sergeant Dec. 15, 1993.
72 Sleeth v. Hurlbert (1896), C.C.C. 197 (S.C.C.).