"The case before us clearly illustrates the great contribution of the presence of the owner of the device at the time of the hearing in the application for an order to reduce the violation of privacy involved in the search. Thus, the first search warrant was issued ex parte without including any detail as to the conditions for carrying out the search. Only at the time of the hearing of the motion to return the telephone to the applicant was his counsel given an opportunity to argue against the legality of the order, his arguments were accepted, the order was revoked - and subsequently the respondent filed a motion on its own initiative to approve a search warrant limited in scope, the legality of which is at the center of the proceeding before us.
This sequence of events illustrates that the very fact that the owner of the computer or smart mobile phone is given the right to plead is likely to limit the scope of the search warrant requested and reduce the violation of privacy involved in the search" (Miscellaneous Motions Criminal Shimon, at para. 29).
- Moreover, the different characteristics of computer materials in relation to physical materials located in a particular place do not make it possible to draw an equal conclusion between the fear of thwarting the search and disrupting the investigation as a result of holding a hearing in the presence of the parties to the request for a search warrant in the premises, and the concern that may arise as a result of holding a hearing on a request for a search warrant on the computer.
In these cases, material that is physically stored on the computer itself is, as a rule, under the control of the investigating authorities - as opposed to cases in which a search warrant is requested in the premises. Indeed, as my colleague the President noted, there is sometimes a possibility in principle of deleting material stored on the computer from a remote point. However, it can be assumed that when the investigating authorities are concerned about this, they will act to issue a search warrant already in the framework of an undercover investigation, and they will have the power to justify such a concern before the judge hearing the request, in a manner that will enable the hearing to be held ex parte (see the Melignac case, ibid.).