R v Marakah

Document Type

Response or Comment

Publication Date

2018

Keywords

Charter, Unreasonable Search and Seizure, Reasonable Expectation of Privacy, Charter Remedies, Exclusion of Evidence

Abstract

R. v. Marakah continues the Supreme Court's tradition of recognizing the special considerations that arise with electronic data and devices, and rejecting analogies based on searches of physical locations. In R. v. Vu, 2018 SCC 60, 6 C.R. (7th) 1 (S.C.C.) the Court rejected analogies between computers and filing cabinets as data storage devices, in R. v. Fearon, 2014 SCC 77, 15 C.R. (7th) 221 (S.C.C.) they drew a distinction between a search of a cell phone and a search of other items carries by an accused at the time of arrest, and in R. v. Spencer, 2014 SCC 43, 11 C.R. (7th) 52 (S.C.C.) they distinguished name and address as the link between a person an otherwise anonymous internet activity compared with name and address as simple "tombstone data". This time, the Court is recognizing that although electronic data might, in some technical sense, be stored in a location, it is not that location which is being searched.

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