Lisa Jørgensen, “In Plain View?: R v Jones and the Challenge of Protecting Privacy Rights in an Era of Computer Search”

Working Abstract

The ‘plain view doctrine’ originating in US search and seizure law allows police
officers to seize evidence outside the scope of a warrant discovered while executing a lawful
search warrant. The doctrine operates in Canada through the common law and is codified in
the Criminal Code. How courts define ‘plain view’ has serious consequences for
informational privacy. This paper uses the ONCA decision in R v Jones to explore whether
the plain view doctrine is appropriate in the context of digital searches and seizures. I argue
that application of traditional search and seizure methods to digital evidence, such as
computer hard drives, ignores fundamental structural difference between physical and digital
data storage. This article encourages Canadian courts to take a critical and deliberate
approach to conceptualizing digital ‘spaces’. By re-defining searches in the unique context of
electronic data, courts will be better able to tailor the application of search and seizure
methods, including the plain view doctrine, to electronic data. Through the creation of clear
limits, essential privacy rights can be protected without unduly limiting the investigative
ability of the police.

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