- 25 A A That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.] B C D … E [171] In my view, Cromwell J.’s proposed tailoring of the search’s scope encounters the same problems of impracticality, police uncertainty, and increased after-the-fact litigation as the cursory search discussed above8. My colleague draws a parallel between his approach and the approach set out by this Court in Vu, but Vu provides that a judge may determine the scope of a search of a computer when issuing the warrant (para. 62). And while detailed note-taking of what the police have searched and why may be desirable (Vu, para. 70, in the context of a search under warrant), it may prove to be an impractical requirement in the context of a time-sensitive investigation. It is not, in my view, an adequate remedy to what would be ‘an extraordinary search power’ (para. 82). F G H I J [172] Fundamentally, my colleague’s approach puts the balancing decision in the hands of the police. I doubt not that police officers faced with this decision would act in good faith, but I do not think that they are in the best position to determine ‘with great circumspection’ whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cell phone or computer (para. 80). If they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.” (emphasis added; emphasis original) K L M N B C D E F G H I J K L M N O O P P 8 Q R S T See also paragraphs 162 - 165 in Fearon at pp 689 - 690, which are in essence that: (i) ‘Given that the information that can be accessed through a cell phone is highly private, it would be unprincipled to countenance a cursory infringement of the owner’s privacy — much as it is not permissible to take a cursory walk inside a suspect’s home’ (paragraph 163); (ii) ‘it is very difficult — if not impossible — to perform a meaningfully constrained targeted or cursory inspection of a cell phone or other personal digital device. ... In short, a cursory inspection for recent communications will need to search a host of applications — the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual — and of third parties.’ (paragraph 164); and (iii) ‘the difficulty inherent in setting a standard for a cursory search would generate uncertainty for the police and result in increased after-the-fact litigation of searches. That same uncertainty would also result in increased numbers of searches that were later determined to be unconstitutional.’ (paragraph 165) Q R S T U U V V