MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

234 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
obtained a physical location. Any attempt to obtain an IP address should
note the exact time a user was suspected to log in, as often they are issued
temporarily and may be reassigned to other subscribers. Often this
information may be used to obtain a physical search warrant for the
location.
C. Search Warrants
Content from an American based social network may only be accessed
with a valid search warrant based on probable cause and reasonable
grounds. Requirements under section 487 of the Criminal Code to issue a
search warrant in Canada are similar to those of the US. 51 With the
exception of good-faith emergency requests, Canadian law enforcement
require an enforceable American search warrant. Processing a search
warrant is handled by the Canada Mutual Legal Assistance on Criminal
Matters Treaty with the United States. 52 An investigative request with
reasonable grounds and sufficient detail should be provided to the
International Assistance Group in the Canadian Department of Justice,
the assigned contact for cross-border searches. The International
Assistance Group, in turn, works with its US counterpart to obtain the
appropriate warrant. 53
Companies such as Facebook have dedicated resources to handle
search warrants, and may provide a large amount of personal information,
photos, private messages or other information from a user’s account,
following a proper request by investigators. Although not a common
occurrence, there have been cases where representatives from a social
networking company have testified at trial as to the contents of a social
networking account. 54
In criminal cases, the ability to access information for the investigative
process is limited to law enforcement and the prosecution. The SCA
51
Criminal Code, supra note 44.
52
Treaty between the Government of Canada and the Government of the United States of
America on Mutual Legal Assistance in Criminal Matters, 18 March 1985, RTC 1990 No
19. See Mutual Legal Assistance in Criminal Matters Act RSC, 1985, c 30 (4th).
53
“The Federal Prosecution Service DESKBOOK ch 43”, online: Public Prosecution
Service of Canada .
54
State v Wiley, 68 So (3d) 583 (La App 5 Cir 2011). A MySpace representative appeared
on behalf of the prosecution to authenticate an account.