Monthly Archives: August 2018

Are you an officer that is in a category of Prosper warning ignorance?

In R. v. Sivalingam 2018 ONCJ 510, he was stopped by Peel Regional Police for speeding in the early morning hours.  Sivalingam was arrested for driving over 80 after failing an approved screening device (ASD) test. He was taken to the station where Intoxilyzer tests revealed that his blood alcohol content was over 80.

At his trial, he applied to exclude his breath test results under s. 24(2) of the Charter, on the grounds that his right to counsel under s. 10(b) of the Charter had been violated. He argued that when attempts to reach his lawyer were unsuccessful, the officer ought to have made it clear that he could have contacted another lawyer, or spoken to duty counsel, before taking the Intoxilyzer tests.

When the officer informed Sivalingam at the roadside of his right to counsel, Sivalingam said he did not wish to speak with a lawyer. The officer told Sivalingam to tell him at any point if he wanted to speak with counsel. Once they arrived at the police station, the officer asked Sivalingam again if he wanted to speak to a lawyer. This time, Sivalingam said that he wanted to call a specific lawyer. First, the officer called the lawyer’s cell phone number at 1:42 a.m. Because there was no answer, he left a voicemail. The officer then called the lawyer’s office number at 1:44 a.m. Finally, the officer called a 24-hour emergency contact number, where he again left a voicemail after receiving no answer. The officer believed that he made the foregoing calls while Sivalingam was going through the booking process. He said he made the calls on speaker phone while at the booking desk. In cross-examination, the officer acknowledged that he could not be sure that Sivalingam saw him making these calls, but that he would have told him he was getting no answer.

Just before entering the breath room, the officer made a final call to the lawyer’s cell phone number. Again there was no answer. The officer entered the breath room at 1:54 a.m. with Sivalingam entering shortly thereafter. The officer confirmed that he had called the lawyer of choice three times. He also explained that “if and when [the lawyer] does call, we’ll stop what we’re doing and get you on the phone with him okay.” The officer proceeded to read the primary and secondary cautions, which Sivalingam said that he understood.  The officer then read the Intoxilyzer demand to Sivalingam again. After reading the demand, the officer explained to Sivalingam that, if he refused, he could be charged with refusal, and it carried the same consequences as being over the limit. The officer then explained to Sivalingam why there was no downside to him providing breath samples.

The officer explained the breath testing procedure to Sivalingam. Just before administering the first test, at 2:03 a.m., the officer called the lawyer again. After leaving a message, the officer told Sivalingam that if the lawyer called back before the first test, he would stop and allow Sivalingam to speak to him. The officer did not give Sivalingam the option of calling another lawyer, or speaking with duty counsel. During his testimony, the officer explained that they had already been waiting for some time and he had just made the third call, and he said that he normally had luck with 24-hour numbers and he did not have any luck this time. The officer acknowledged that he was not concerned about the two-hour limit within which to perform the first breath test.

The judge ruled that the officer breached Sivalingam’s s. 10(b) Charter rights by not holding off performing the Intoxilyzer tests before Sivalingam had a reasonable opportunity to consult counsel. After the officer was unable to reach the lawyer of choice at 2:03 a.m., he should have given Sivalingam the option of calling another lawyer or duty counsel. The judge said by the officer’s own admission, there was no urgency in conducting the tests. Sivalingam never waived his right to counsel. The officer effectively waived it for him.

The judge went on to say that where circumstances warrant — as they did here — the police should remind a detainee of the availability of duty counsel, or the option of calling a lawyer, where repeated attempts to contact counsel of choice fail, and where the detainee is not insistent on speaking only with a specific lawyer. Especially, said the judge, if the police are in complete control of a detainee’s access to the phone and to the ability to even look up another lawyer’s number. The police should not leave the impression that, if counsel of choice is unavailable, there are no other options. That is what happened here.

The judge said that where a detained person’s initial counsel of choice is unavailable, the police should not simply carry on as if the detainee has exercised his or her right to counsel. In the absence of an explicit waiver, the police must continue to hold off eliciting evidence until the person has exercised the s.10(b) right earlier invoked. Common sense would suggest that the next logical step would be to point out to the detainee that counsel has not called back, and ask detainee whether he or she wishes to try another lawyer or duty counsel. If after being given the option, the detainee insists on speaking with only one specific lawyer, the law does not require the police to wait indefinitely for that lawyer to call back before starting the breath testing process. In this case, the officer may have been diligent in his attempts to get hold of the lawyer of choice; however, he was not diligent in assisting Sivalingam to exercise his right to counsel generally.

As a side note, the judge also found it troubling that the officer had no idea what a Prosper warning is and when it is required. Although the judge found that a Prosper warning was not required here, the judge agreed with defense counsel that it demonstrated an ignorance of Charter requirements. In the judge’s view, this ignorance of Charter standards provided important context to the breach that did occur, and made the breach more serious. Sivalingam should have been given an opportunity to speak with a lawyer before he performed the Intoxilyzer tests. Because he was not given that reasonable opportunity, his s. 10(b) Charter right was infringed. In the circumstances, the Intoxilyzer test results were excluded under s. 24(2) of the Charter.

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Filed under Impaired Driving, Recent Case Law, Section 10 Charter

Is there a reasonable expectation of privacy in a Facebook page?

A judge of the Ontario Superior Court of Justice doesn’t believe there is.  In R. v. Patterson 2018 ONSC 4467, the accused used Facebook Messenger to lure a 15-year-old boy for the purpose of committing a sexual offence [luring]. The victim of the alleged offence provided investigators with his Facebook password and gave them permission to download his communications with the accused. The Toronto Police Service then made a request to the US seeking an order from an American court requiring Facebook to provide the complete record of the accused’s Facebook communications from its servers in Texas. The request was granted and Facebook sent all of the requested records directly to the officer in charge of this investigation.

Patterson applied to exclude the evidence obtained both from the alleged victim and from Facebook based on a violation of his rights under section 8 of the Charter. It was the position of the defence that Patterson has a privacy interest in those messages and that investigators were obliged to obtain warrants from a Canadian judicial officer prior to reviewing the Facebook page or opening the records forwarded by U.S. law enforcement officers.

The defence position is premised on the decision of the Supreme Court of Canada in R.v. Marakah 2017 SCC 59 (a case I posted about earlier). As backdrop, in Marakah the court found that the accused had a reasonable expectation of privacy in text messages which had been seized from his co-accused’s cellphone. Defence in Patterson argued that Marakah is good authority for the proposition that Patterson retains a reasonable expectation of privacy in electronic messages that he sent and received over Facebook despite the fact that those records were saved in the victim’s own Facebook account as well as the Facebook servers in Texas.

In Marakah, it was clear that the applicant had a direct interest in the communications because he was a participant in the text conversations and the author of the messages which were introduced as evidence against him. Patterson’s Facebook activities included several different types of communication: text based conversations with the victim which constitute the actus reus of the offence of child luring; images and text received by Patterson as a member of a Facebook group where members would exchange images of child pornography and fantasize about the sexual abuse of children; the Facebook profiles, background images, and subscriber information which Patterson used to create the Jim Jay, Josh Jay, and Ric Patterson Facebook accounts.

The judge found that Patterson has no direct interest in the first category of communications (the text messages which he sent to the victim). Those messages constitute the actus reus of the offence of child luring. The constitutional rights which protect our privacy have never gone so far as to permit an accused to claim privacy in respect of his own criminal offences, ruled the judge.  As for the second category, the judge said that when a Facebook user joins such a group, he implicitly consents to receiving any communication sent to the group by another member and also consents to his own messages being distributed to every other member. The members of the group have very limited means of confirming the identity of other members and they have no means of preventing members from distributing their communications outside of the group. Patterson arguably has a direct interest in his own contributions to the group but it would be very difficult to find that he has a direct interest in the entire group’s conversation simply because he was a member of it.

The judge said Patterson does have a direct interest in the third category of his Facebook communications (the account details and profile pages for his three Facebook accounts). Bearing in mind that these communications were deliberately left open to any Facebook user to read, the expectation of privacy may be almost negligible but at least it can be said that Patterson has a direct interest in the content.

The judge said in Marakah, text messaging is a narrow, targeted form of communication. Facebook is a broadcast. Depending on the user’s privacy settings, a Facebook page can be read by anyone in the world who is connected to the Internet. Patterson deliberately fashioned the Josh Jay and Jim Jay accounts in order to draw a particular type of Facebook user to his page. He was trolling for young gay males. The female officer was able to navigate to the profile page for both accounts and read the posted biographical information without any need to be accepted as a “friend”. She was able to see the profile pictures that Patterson selected for Jim and Josh Jay, read their biographical information, and see the profiles of those who had befriended them on Facebook. A significant portion of what Patterson sought to exclude is information which he previously invited the world to see.

Thus, said the judge, Patterson’s claim to a reasonable expectation of privacy in his Facebook records dies here. No reasonable person would expect that communications such as these would remain private. Patterson was messaging with a 15 year old boy who had given him no assurance of confidentiality. The communications were conducted over Facebook messenger, a medium which seemingly keeps an indelible record of supposedly private communications. All of the messaging took place over the Internet with snippets and artifacts of the conversation being captured on devices, servers, and systems at every juncture of the communication. As the judge said, a reasonable Internet user might hope that such communications would remain private but no one with even a modicum of understanding of information technology would expect it.

 

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