Digital Records Forensics Project

Abstract: Mr. Pommer and his wife separated in 2004 but continued to live together in the same house albeit different bedrooms. A couple months after their separation, the daughter found a camcorder in the bedroom she shared with her mother. Mr. Pommer’s wife immediately kicked Mr. Pommer out of the house. Upon leaving and the finalization of their divorce, Mr. Pommer “abandoned” a home computer at his ex-wife’s home. Fearful that inappropriate images of her and her daughter may have been dispersed online, Mr. Pommer’s ex-wife contacted the police, but stated she did not want to open a criminal investigation. Cst. Johnson conducted a warrantless search of the home computer and discovered several images that constituted child pornography. These images led Cst. Johnson to open a criminal investigation against Mr. Pommer. In 2005, Cst. Johnson received a search warrant to perform a forensic examination of the computer which was granted; upon its execution, additional illegal images were uncovered. This search led Cst. Johnson to gather more evidence against Mr. Pommer and, after two unsuccessful attempts, obtain a search warrant for his condominium and his office. At issue in this case is if the police breached Mr. Pommer’s section 8 Charter rights that protect him against illegal searches. Did Mr. Pommer have reasonable expectation of privacy in the home computer and its contents? In this voir dire, the Supreme Court argued he relinquished his expectation of privacy because in his process of moving out of the house, he returned twice but left the home computer and knew that the locks on the doors were going to be changed. In effect, he had given up access and control of that computer and lost his reasonable expectation of privacy. Furthermore, the defense counsel argued that how the search warrants were obtained and their contents was misleading in parts and the evidence obtained as a result of the warrantless search should not be admitted in court. After an extensive and meticulous review of Cst. Johnson’s actions, the Court held that he acted in good faith of and that the breach of Mr. Pommer’s s. 8 Charter rights amounted to a “technical violation” and the evidence could be admitted at trial.

Abstract: This case holds that a computer hard drive is the electronic equivalent of a filing cabinet, in the sense that it contains many records or documents, rather than consisting of a single record or document. The practical result under rules of court is that court will not ordinarily order the production of a hard drive in total, but rather will selectively order production of relevant and material files within the hard drive, and exclude others that are irrelevant, immaterial, private and confidential or privileged. The court also ruled that forensic searching is not necessary in every case but that the courts should have fair amount of discretion for determining when forensic analysis is appropriate.

Canada