Police required a wiretap authorization before observing a suspect’s text messages displayed on his blackberry screen via high-powered casino CCTV cameras

R. v. Ley 2014 BCSC 2108 – members of the Vancouver Police Department followed the applicant into the Edgewater Casino in Vancouver. The police attended the video monitoring area of the casino to continue the surveillance of the applicant. That area is used by casino staff to monitor the casino premises, except the washrooms, using a number of cameras placed throughout the facility, some of which have pan, tilt, and zoom capabilities. The resulting images are viewed on screens in the room and recorded for future reference.

The officer testified that he directed a camera operator to follow the applicant. He testified that he observed the applicant sending and receiving multiple text messages on his Blackberry. On two of those occasions, the officer directed the operator to zoom in on the Blackberry and was able to read the words on the screen. He said that he did this to gather “intel” by seeing what the applicant was saying on his phone. He also said that he observed text on the screen from someone responding to the applicant. He said that he could not have seen the readable text messages without the use of the zoom feature on the cameras. The applicant was specifically targeted by a camera operator under the direction of the police for a period of about five hours. Other members of the Vancouver Police Department subsequently obtained the footage containing the recorded images of the applicant and the Blackberry from the casino.

The evidence showed that a high level of security is necessary in a casino to detect cheating, theft, money laundering, loan sharking, threats to public safety, abandoned children, self-excluded gamblers and “undesirable patrons”. A sign is posted at the entrance to the casino that patrons are subject to 24 hour video surveillance. Camera domes are also visible throughout the facility. There is no sign indicating that handheld devices or text messages may be observed in the casino. The evidence was that the primary purpose of the video surveillance was to detect cheating by patrons in the casino.

Justice T.W. Bowden at para 27-28:

“…I do not consider that the applicant had an expectation of privacy in the casino with regard to his personal appearance including such things as his visage, his posture, his gait and the clothing that he wore. Nor did he have an expectation of privacy in relation to his actions while participating in a game.

the surveillance in this case was not to obtain a likeness of the applicant. Nor was it to determine if he was cheating at a game. Rather, it was to observe any text messages that he might send or receive on his Blackberry.

Justice Bowden said rather than seeking a disclosure of the messages sent by the applicant from the service provider, the police chose to read them in the process of being sent with the use of a camera. That, in the judge’s view, was substantially equivalent to an intercept under Part VI. Since R. v. Telus Communications Co., 2013 SCC 16, Justice Bowden said an authorization under Part VI of the Code was required because the actions of the police amounted to an interception of the applicant’s text messages in this case. By instead choosing to photograph the applicant’s messages and retain the recorded footage, the police bypassed the authorization requirement that, in Justice Bowden’s view, would otherwise have been necessary.

Decisions such as this (and R. v. Croft 2013 ABQB 640 that I posted earlier on my blog), dictate that you will now need a Part IV authorization for any text message content; past, present, or future.

Leave a comment

Filed under Search and Seizure

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s