Can an assistance order under Section 487.02 of the Criminal Code be used to compel an arrestee to unlock their cell phone so that the police can search it?

A judge with the Ontario Court of Justice ruled it can’t.  In R. v. Shergill 2019 ONCJ 54, he was charged with a variety of sexual and child pornography offences in relation to his alleged interaction with a 15-year-old girl. Police seized his smart phone, a Blackberry Priv, incident to arrest. They then obtained a search warrant under s. 487 of the Criminal Code to search the contents of the device, but were unable to execute that warrant because the device was password-protected. Police applied for an assistance order because police argued that currently no technology would allow them to access the contents without risking their destruction. As a result, the police saught a further s. 487 warrant with an assistance order, which if granted, would compel Shergill to unlock the device so that the police could search it.

Shergill argued that the order would be constitutionally prohibited because it would compel him to communicate to the police information currently existing only in his mind for the purpose of assisting them in obtaining potentially incriminating evidence against him. That compulsion, he argued, would be a breach of his s. 7 liberty interests and would not be in accordance with the principles of fundamental justice. Compelling him to participate in his own investigation by revealing information known only to him would violate his right to silence and the protection against self-incrimination, both of which are principles of fundamental justice. In short, Shergill argued that a court order requiring him to communicate his thoughts for the sole purpose of providing access to evidence which may be used to send him to jail would be an unprecedented and unconstitutional use of the assistance order power.

The judge agreed with Shergill.  While the judge accepted that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges, on his best application of controlling authority, he was simply not persuaded that the order sought can issue without fundamentally breaching Shergill’s s. 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context. The judge felt that the data on the Blackberry, which the police are only able to access and obtain if Shergill provided his password, is derivative evidence (basically, evidence which comes to light as a result of a compelled disclosure) and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of section 7 of the Charter.

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Implications Of Bill C-46 – Impaired Driving

The landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The Bill charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of ‘bolus drinking’ where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. What is possible here is that, based on the rate of absorption of alcohol into a blood, a person’s behaviour could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol.

Perhaps the biggest change for us as police officers is that we will now be able to ask for an ASD demand of any lawfully stopped driver, regardless whether we have a reasonable suspicion that they have been drinking. Prior to this change, we needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol, etc. would be enough to give us grounds for an ASD demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.

In addition, Parliament created an offence of having too much drug in your blood. The judge doesn’t have to find that it impaired you, only that the concentration of the drug exceeded the legal limit. Here is the link: https://www.canlii.org/en/ca/laws/regu/sor-2018-148/latest/sor-2018-148.html

Marihuana is looked at differently: if the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it’s a criminal offence, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it’s punishable by the same penalty as impaired driving or over 80mg% of alcohol. As well, driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving. Although this table is not exhaustive, I’ve attempted to summarize the important changes for officers (I apologize for the table format – WordPress is not user-friendly for creating tables!):

Offence (CC) Old (CC) New (CC) Changes
Dangerous
Driving
249 320.13(1) No substantive change but simplified as
conveyance (new) rather than separate
paragraph offences for motor vehicle, vessel, aircraft, etc. (old).
 
Impaired
Driving
253(1)(a) 320.14(1)(a) No substantive change but now specifies
impairment to any degree.
       
.08 or Over 253(1)(b) 320.14(1)(b) The offence
changes from
having too
much alcohol
in your blood
while driving to having too
much alcohol
in your blood
in the 2 hours
after driving. 
Also, old was
“exceeds 80mg%” – new is
“equal to or
exceeds
80mg%”. Note – the exceptions are given in
subsection (5).
 
Over Drug
Limit
253(3)(a) 320.14(1)(c) The offence is
committed in
the 2 hours 
after driving.
For THC
(marihuana)
there are two
limits: 2ng/mL and 5ng/mL
Note – the
exceptions are given in
subsection (6).
 
Lower
Marihuana
Limit
253(3)(b) 320.14(4) Lower
penalties for 
2ng/mL of THC (marihuana).
 
Over Limit for Alcohol & Drug Combined 253(3)(c) 320.14(1)(d) 50mg% alcohol + 2.5ng/mL of
THC.
 
Refusal 254(5) 320.15(1) Wording added “knowing that a demand has
been made”
and added
separate
offences of 
liability
regarding 
respecting
injury or death at time demand made.
 
Failure to Stop/Remain 252 320.16(1) Old offence was a specific intent offence – “with intent to escape civil or
criminal
liability”. New
offence is a
general intent
offence – the
Crown need not prove any
purpose for the flight. 
Reputable
presumption – “without
reasonable
excuse”
 
Flight from
Police
249.1 320.17 Simpler
language but
repealed bodily harm and
death offences.  As well, only
mentions
“motor vehicle or vessel”, not
conveyance as
the other new
provisions have
 
Driving While
Prohibited
259(4) 320.18(1) Change of
language from
“disqualified”
to “prohibited” – no substantive change.

 

I expect a lot of constitutional arguments in the months and years to come, especially since the new legislation now allows, where legislation compels drivers to report accidents (e.g. provincial Motor Vehicle / Highway Traffic Acts), police to use that information to form grounds for demands.  I’ve made several posts over the years on courts ruling that “statutory compelled statements/reports” are inadmissible when pursuing a simultaneous criminal investigation, so this one will be interesting. Also, because the drug screening equipment isn’t perfect, and gives false positives, defence will argue it’s unconstitutional to use it for sure.  One final note for this post: because of the changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you’re a breath technician, you’ll have to start using these new ones now.

 

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Can police charge you with impaired driving if you drunkenly drift down a river on a raft or canoe?

In April 2017, Ontario Provincial Police laid impaired driving charges against a 37-year-old man (David Sillars) who was allegedly drunk and tipped a canoe on the Muskoka River near Bracebridge.  An eight-year-old boy who was in the canoe was swept over a nearby waterfall. Emergency crews tried CPR, and took the boy to the hospital, but he later died of his injuries.

Here are some links to a couple of the news articles around this incident: https://nationalpost.com/news/politics/canada-set-to-remove-drunk-canoeing-as-an-impaired-driving-offence;

https://globalnews.ca/news/3365913/boy-8-dies-after-canoe-capsizes-near-bracebridge/;

https://globalnews.ca/news/4569883/toronto-man-on-trial-for-impaired-operation-of-a-canoe-causing-childs-death/

The impaired driving legislation that went before Parliament in September-October 2017 sought changes to the definition of a vessel so that it “does not include a vessel that is propelled exclusively by means of muscular power.”  That didn’t sit well with the Canadian Safe Boating Council, who testified before the House of Commons committee studying the bill. This meant canoes and kayaks and other “vessels” propelled exclusively by muscular power would not be considered as “vessels” under the Criminal Code. During the Justice Committee hearings, a number of different agencies, including the Canadian Safe Boating Council, made submissions against this exclusion. The proposed definition excluding “vessels” propelled exclusively by muscular power was negatively reflected in a number of media reports provided by the Crown. Statistics were provided in the CSBC’s submissions, which reflected the increase in the number of non-motorized vessels propelled exclusively by muscular power. Ultimately, the exclusion of “vessels” exclusively propelled by muscular power was removed from the final draft of the definition of “vessel,” which was presented to Parliament for ratification.

Fast forward to this month, R. v. Sillars 2018 ONCJ 816. Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 ml of blood, and dangerous operation of a vessel. He was also charged with criminal negligence causing death. One of the key issues raised by both counsel respecting the first three charges was whether a canoe is included in the term “vessel” contained in Part VIII — Offences Against the Person and Reputation. Both counsel were in agreement that s. 214 CC does not provide a comprehensive or complete definition of “vessel;” in fact, it does not provide any definition at all. It would have been a simple task for Parliament to clearly indicate in s. 214 a comprehensive and inclusive definition of the term, “vessel,” yet it did not (the definition does include a “hovercraft”).

The case is an interesting read for someone that wishes to know more on the judge’s reasoning, but in essence the judge said at para. 31:

It is my view, the danger of harm is equally present whether a person is operating a canoe or a motor boat with a 5 hp. motor or a 150 hp. motor and their ability to do so is impaired by alcohol, however slight. Operating a canoe while impaired is sufficiently morally culpable to warrant the stigma of a criminal sanction. The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

It was the judge’s finding that the term “vessel” contained in s. 253(1)(a), s. 253(1)(b), and s. 249(1)(b) CC includes a canoe. At para. 60:

Consequently, for all of the reasons set out in these reasons it is my view Parliament intended to include vessels propelled exclusively by muscular power, including canoes, in the Criminal Code offences of impaired operation of a “vessel,” operating a “vessel” with greater than 80 mg alcohol/100 ml of blood and dangerous operation of a “vessel.”

“…any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person’s height and the proficiency of members of the public respecting their ability to swim is considerably varied” (Sillars, at para. 48).

“…Certainly the purpose of the Criminal Code offences being considered here is to protect members of the public travelling on Canada’s waterways from harm, the operators themselves, passengers in the “vessel,” other operators of “vessels,” with or without passengers and anyone providing assistance when an emergency occurs as a result of the consumption of alcohol or drugs or both” (Sillars, at para. 57).

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Investigative Detention and Handcuffing…

Another case examining handcuffing the detainee incident to an investigative detention has prompted my latest post.  R. v. Latzkowski 2018 SKPC 56 involved an all-too-familiar situation whereby the driver was detained for an impaired driving investigation and the officer read the ASD demand, had the driver step out of the vehicle, “placed the handcuffs to the rear for officer safety, for my safety”, and escorted him to the passenger side rear door of the police vehicle. The officer was with another officer, no other individuals were present in the vehicle with the accused and there was no suggestion whatsoever in the behaviour of the accused to suggest that he was a risk to flee, or that he was a risk to officer safety.

In his testimony, the officer stated that he handcuffed the driver because he had concerns, not knowing the accused, that the latter may have weapons, and he also had concerns about the potential for unpredictable behaviour by an individual. However, in cross-examination, the officer agreed that the accused did not pose any trouble, referring to him as a “polite, cooperative gentleman”. When asked whether a pat-down search was conducted on Latzkowski, the officer testified that:

“I believe it’s entirely possible that I gave him a brief pat-down. I don’t remember specifically a pat-down, but if I would have detained him, and placed him in handcuffs, I would say — it — it’s a common practice for me to give a very brief pat-down just along the sides and the waistband for any potential weapons, knives, guns, anything sharp. So it’s entirely possible that I did. I don’t remember specifically doing it.”

The judge canvassed other decisions of the court that were similar to the case at hand, which I will briefly summarize: R. v. Vulic, 2012 SKQB 221, 397 Sask R 235 – an investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interest of officer or public safety; R. v. Wong, 2009 BCPC 89 – handcuffing constituted a de facto arrest noting that “even if the detention had been lawful as an investigative detention, then police do not have carte blanche to use handcuffs on an investigative detention”; R. v. Strilec, 2010 BCCA 198, 256 CCC (3d) 403 – an individual was handcuffed who had been stopped for some traffic violations. Again, the Court found that a de facto arrest had occurred with the handcuffing, although the detention exceeded what was necessary and reasonable on the facts of that case; R. v. DiMaria, 2012 ONCJ 358 – the individual was handcuffed prior to the administration of a roadside screening test. The Court concluded that the detention was arbitrary and contrary to s. 9 of the Charter, noting that the individual was in handcuffs “for no good reason”; R. v. Romaniuk, 2017 ONCJ 235, the accused was handcuffed and put in the back of the police cruiser after being informed that he was under investigation for drinking and driving offences. The arresting officer cited officer safety as a reason for handcuffing, as a general practice. The Court noted that handcuffing an individual prior to arrest should not be done as a policy reason, or as a matter of regular practice; the test is whether or not the officer’s subjective belief about safety concerns is objectively reasonable.

In the case at hand, the judge found that…”there was no particular assessment by this officer as to whether this individual was a safety threat. He simply handcuffed Mr. Latzkowski as part of his standard practice and I find his proffered reasons for doing so were standard answers that failed to assess this situation. Objectively, he cuffed the defendant in the absence of ascertaining any facts that would justify such action and this is objectively unreasonable. … [A]llowing this type of conduct to go without remedy would, in my view, have a negative impact on the administration of justice. … “

The take home? As a general rule, the cases would indicate that someone who is under investigative detention is not ordinarily handcuffed, and it is a significant deprivation of his or her liberty. An investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officer or public safety.

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Can an officer ask the vehicle passenger for his or her identification to run a CPIC query?

In R. v. Loewen 2018 SKCA 69, in the early morning hours, Loewen was a passenger in a vehicle being driven in Saskatoon. The vehicle was pulled over for speeding in violation of The Traffic Safety Act. The first of two officers spoke to the driver and asked him for his licence and registration. That officer then became aware of Loewen in the passenger seat and requested his identification as well. Both Loewen and the driver gave the officer their Saskatchewan Government Insurance [SGI] photo identification cards. The officer testified at trial that he recognized the driver as a known criminal, but he did not recognize Loewen.

The officer’s request for Loewen’s identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job”.

The officer took both identification cards back to the police vehicle and handed them to the second officer, who then conducted queries on CPIC and on a local police records system. The CPIC search indicated the driver had an outstanding warrant for his arrest in Alberta and a criminal record. Loewen was revealed to be a federal inmate on release, with conditions. The second officer called Corrections Canada’s National Monitoring Centre [NMC] to confirm the nature of those conditions, and learned that one of the conditions of Loewen’s release was that he not be in the presence of known criminals. The officer told the NMC official that Loewen was a passenger in a vehicle driven by such an individual.  The response? The NMC official indicated to the officer that the NMC would be issuing a warrant under the Corrections and Conditional Release Act for Loewen’s apprehension. The NMC official also advised the officer to take Loewen into custody.

The officers then proceeded to issue the driver of the vehicle a summary offence ticket for speeding, and Loewen was removed from the vehicle and arrested for breach of his release conditions; the driver then departed in the vehicle. Immediately upon his arrest and being advised of the reason for it, Loewen told an officer that his “parole” had expired two days prior. He was cooperative while so doing. The officer responded to Loewen by saying the NMC was issuing a warrant and the matter was no longer within his discretion.

An officer performed a roadside search of Loewen and located a number of items, including Loewen’s wallet, two cellphones, and some keys. Inside the wallet, he found a substantial amount of cash, later determined to be $1,615. Loewen was placed in the police vehicle, advised of his right to counsel and transported by the two officers to the police station. He again raised the concern that his “parole” had expired, including once as they approached the police station. The station detention officer searched Loewen and felt a bulge in the groin region of Loewen’s pants. The officer asked Loewen what it was and Loewen responded that it was cocaine and MDMA.

Loewen was then taken to a private interview room. On entering the room, he removed two packages of drugs from his underwear. A more thorough search was then conducted, during which Loewen’s clothing was removed. The packages were later determined to be 28.3 grams of cocaine and 28.1 grams of methylone. Loewen was arrested for possession of a controlled substance for the purpose of trafficking and was re-read the standard police warnings.

At trial, evidence showed that Loewen’s statutory release had, in fact, expired two days before his arrest and, as a result, he had not been in breach of any conditions. This led him to raise a number of Charter challenges in Provincial Court with respect to alleged infringements of his Charter rights to be free from arbitrary detention and unreasonable searches and seizures. The trial judge found there had been some violations of Loewen’s rights but ultimately concluded the evidence obtained through those violations, i.e., the drugs and the cash, should not be excluded pursuant to s. 24(2) of the Charter. Loewen was convicted on one count of possession of methylenedioxymethcathinone (methylone) for the purpose of trafficking and one count of being in possession of cocaine. He was sentenced to a total of 42 months imprisonment.

The appeal court found otherwise. Quoting from R. v. Mooiman 2016 SKCA 43, “[i]n the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter“, but here, the appeal court found that Loewen had been psychologically detained while the officers had his identification in their possession during the course of the CPIC and local records searches and during the course of their dealings with the NMC. Given that the police had no lawful authority to detain Loewen, it follows that this detention was arbitrary and hence a violation of s. 9 of the Charter. The court concluded that Loewen suffered a significant deprivation of his liberty when the officer took his identification back to the police car, for approximately a 30-minute time frame. An SGI identification card is not something that can be easily abandoned. A citizen in Loewen’s circumstances would have reasonably concluded he or she had no meaningful option but remain in the vehicle until the police returned with the identification, said the court (note: similar decisions in R. v. Harris, 2007 ONCA 574; R. v. Dale 2012 ONCJ 692 may assist).  This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.

With this backdrop, the arrest was also ruled unlawful because no warrant of apprehension had yet been issued per s. 137(2) of the CCRA by the NMC and s. 137.1 did not come into play because the arresting officers had not considered it as a basis for arresting Loewen at the time.  As a result, it follows that a search conducted incidentally to it was a violation of s. 8 of the Charter.

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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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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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Failure to ask accused if he wants to speak to a lawyer.

The case of R. v. Knoblauch 2018 SKCA 15 addressed the question of whether a detained person’s right to legal counsel, as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms [Charter], is breached by a police officer who, after properly informing the detainee of his or her right to counsel, fails to ask whether the detainee wishes to consult with a lawyer.

The arresting officer advised Knoblauch that he was under arrest for impaired driving. The officer then advised Knoblauch of his section 10(b) Charter right to counsel. When asked if he understood his right to counsel, Knoblauch said “Yep, yes”. The officer did not go on to ask Knoblauch if he wanted to speak to a lawyer while he was in the back of the patrol car. The evidence revealed that the officer was distracted by a number of police radio transmissions occurring at this time. Two minutes later, the officer made a breath test demand of Knoblauch and also provided a police caution to him. Knoblauch indicated that he understood the breath demand and the police caution.

The officer’s report indicated that at roadside, “the accused understood all warnings and declined to call a lawyer“. The trial judge found the patrol car video clearly showed that at roadside Knoblauch had not been asked if he wanted to call a lawyer and had not declined to do so.

On cross-examination, the officer admitted his notes read that at another time, he had “again” asked Knoblauch if he wanted to call a lawyer. The trial judge determined that statement was inaccurate as the officer had not made any prior inquiry. The trial judge concluded the two inaccuracies identified by him affected the credibility and reliability of the officer’s evidence and, as such, the trial judge found “that at no time did [the officer] ask Knoblauch if he wanted to call a lawyer”.

So, does a police officer, who has complied with the informational component of s. 10(b) of the Charter (duty to advise), have a duty to ask a detainee whether he or she wants to consult with a lawyer? At para 25:

It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely:

(a) to inform a detainee, without delay, of his or her right to retain and instruct counsel;

(b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances).

The existing jurisprudence states that the first duty identified has been described as an informational one, while the second and third duties are implementational in nature andare not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. In R. v. Brydges [1990], the Supreme Court of Canada provided guidance on what is required by police officers in fulfilling their informational duty. The majority of the Court held that in addition to advising detainees of their right to retain and instruct counsel without delay, police officers must also advise detainees of the existence and availability of Legal Aid and duty counsel.

Police services provide their officers with caution cards, which are used by the officers to inform detainees of their s. 10(b) Charter right. Some such cards include a question as to whether the detainee wishes to consult counsel; others do not.

The SKCA in this case said there is no magic to the incantation of the words on such cards. What is important is not the words used but, rather, whether, in the circumstances as a whole, a detainee has been properly informed of his or her right to counsel. At para. 51:

In summary, both the trial judge and the appeal judge concluded [the officer] had properly fulfilled his informational duty by informing Mr. Knoblauch of his right to counsel as described by the Supreme Court of Canada in Brydges and Bartle. In accordance with judicial authority, no further duties were imposed on [the officer] with respect to Mr. Knoblauch’s s. 10(b) right to counsel, unless and until Mr. Knoblauch invoked that right.

Simply put, the SKCA concluded there is no duty on a police officer, who has complied with the informational component of a detainee’s s. 10(b) right to counsel, to inquire whether a detainee wishes to exercise that right.

Note: please follow the issued cards provided to you by your agency to inform detainees of their s. 10(b) Charter rights. If your card includes a question as to whether the detainee wishes to consult counsel, continue to do so unless or until those changes are made within your jurisdiction by the appropriate authorities.  This decision may be binding in Saskatchewan, but it is not an SCC decision [yet], so adhere to binding decisions and policies in your jurisdiction as the case may be.

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Search warrants and typographical errors

R. v. Campbell 2018 NSCA 42 – police executed a search warrant at a home in Brooklyn, N.S. The respondent was subsequently charged with drug and firearm offences. The respondent challenged the validity of the search warrant. He submitted the warrant was fundamentally flawed on its face and, as such, the search undertaken of his home constituted a breach of his right under s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. He further argued that the evidence collected by virtue of the search ought to be excluded.

In challenging the warrant, the respondent did not suggest that the information contained in the Information to Obtain (ITO) did not give rise to reasonable grounds to believe evidence of an offence would be found at his residence. The sole basis of the respondent’s challenge was in relation to an error on the face of the warrant itself. He submitted this error alone was sufficient to render it invalid.

Police had responded to a call earlier in the day from the general public about a male walking down the road with a shotgun. Arriving on scene, police observed a male entering a mini-home on Gaspereau River Road, Brooklyn, N.S., carrying a firearm. Police followed him to the mini-home and arrested the man for firearm related offences. The first male was taken to the police station for further questioning. A search of the property was subsequently undertaken by three officers for public and officer safety. Cannabis plants were located in the kitchen and in a greenhouse in the backyard. Officers also found an unsecured .22 caliber rifle next to the cannabis plants in the greenhouse. The police officers left the residence and began conducting surveillance while awaiting a search warrant to be approved. During the surveillance period, a second male (the respondent) arrived and advised the officers that he lived at the mini-home. He was arrested and transported to the police station as well. The search warrant was approved by a Justice of the Peace

The error?

This warrant may be executed between the hours of 6:00 p.m. on the 7th day of May, 2016 and 9:00 p.m. on the 7th day of January, 2016.

Maybe a ‘cut and paste’ error, or the wording in a prior template (search warrant) not being corrected (my thoughts, not the court’s).  Of course, the question to address was, “Was this merely a typographical error, or was it a serious fundamental defect that makes the warrant invalid?”  The NSCA discussed that the trial judge was well aware that a warrant could contain a typographical error which would not impact on its presumptive validity. However, some errors went beyond such harmless errors and may be problematic. The trial judge clearly understood that some errors on the face of a warrant could be trivial and did not import into her reasoning a standard of facial perfection.

Where a search warrant appears regular and valid on its face, issued by the proper justice, it represents, until quashed by subsequent proceedings, full authority to the officer in entering, searching and detaining goods according to its terms and directions. The search warrant should, on its face, appear to be issued in the form prescribed by the statute, and issued by the proper court officer, in order to the officer to act upon it. The executing officer will then be justified in carrying out its mandate even though the information may have been legally insufficient to authorize the issuing of the search warrant, and even though the search warrant might be set aside if an application is made (cited from Fontana and Keeshan in The Law of Search & Seizure in Canada, 8th ed. at page 61).

At para. 36 in Campbell:

Implicit …..is the expectation that an executing officer should assure him or herself that they are about to act in accordance with the terms of the warrant. That necessitates that they read it. Here, the warrant was not “regular” on its face — it contained an obvious error with respect to the time frame for execution. It was well within the purview of the trial judge to infer either that the obvious error was not noted by police, or conversely, they acted on it notwithstanding the error. No evidence was offered to explain why or how the police acted in the face of an obvious error on the warrant.

Due to the negligence of the police in obtaining and executing the search warrant, the resulting grow op and firearms evidence was excluded.

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Checking on child welfare does not necessarily permit warrantless police searches

In R. v. McMahan 2018 SKCA 26, police received a call from the local Mobile Crisis Unit regarding an anonymous tip concerning the well-being of the children living in Ms. McMahon’s residence. Specific concerns identified by the tipster were poor living conditions and children not fed properly. Since the tip had been received by Mobile Crisis on a weekend, and because it had no staff in proximity to McMahon’s home, Mobile Crisis asked the police to “go and just take a look, find out what things were like and report back to them”. Two police officers attended the residence and McMahon greeted them outside. After being informed of the reason for the police visit, McMahon requested a few minutes to clean up the home, but was denied. The officer denied her request, stating it would be inconsistent with the purpose of a “spot check”. The discussion that took place outside McMahon’s home lasted no more than five minutes. McMahon then turned, opened the door, and entered her residence.

The officers followed her inside. Upon entering the home, the police smelled burnt marihuana. One of the officers also observed a jar of marihuana bud and the adults in the home were arrested (McMahon and two others). As there were no adults left to supervise the three children, the police determined that they should be taken into care. While assisting the children in preparing to leave the residence, one of the officers entered a room and noticed a number of marihuana plants. A search warrant was later obtained and 191 marihuana plants were seized pursuant to the warrant. McMahon applied to have the marihuana plants that were seized from her residence excluded from evidence at trial on the grounds that the police had entered her home and seized the plants without lawful authority. The trial judge allowed the application and excluded the evidence. He found that the investigating officer exceeded her powers by entering the home without a warrant and that the subsequent search and seizure of the marihuana plants amounted to a violation of McMahon ‘s s. 8 Charter rights.

The Crown appealed, arguing that the trial judge erred in finding the police had entered the home without lawful authority, erred in finding that McMahon’s privacy rights were engaged, erred in applying the standards applicable to gathering evidence in a criminal investigation to a child welfare inquiry, and erred in excluding the evidence.

Since the Crown principally relied upon the Child and Family Services Act (CFSA) as authority for the warrantless search, this legislation was examined.  The legislation’s purpose is to promote the well-being of children “in need of protection” by offering services designed to maintain, support and preserve the family in the least disruptive manner. Children are considered to be “in need of protection” if the child’s situation meets one of the circumstances described (s. 11), including a circumstance where “there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur”. Section 12 of the CFSA legally obliges any person who has reasonable grounds to believe a child is in need of protection to report that information to an officer or a peace officer.

Where a report is made to a child protection worker or peace officer, the recipient of that report must investigate the information set out therein if the child protection worker or peace officer, as the case may be, has reasonable grounds to believe that a child is in need of protection. The CFSA lays out a number of approaches available to child protection workers when a child is considered to be in need of protection. The level of intervention ranges from the least disruptive (support services, mediation, agreements with the parents for residential care), to more interventionist measures (apprehension, protective intervention orders, temporary or permanent guardianship orders).

The CFSA does not expressly authorize a peace officer to enter a private dwelling for the purpose of conducting an investigation; it does set out the authority for and conditions upon which a warrant to enter a private home may be obtained, notably, when an officer has not yet determined if a child is in need of protection and needs access into the home in order to make that determination.

The Crown’s position also, both at trial and on appeal, was that warrantless entry into McMahon’s home was justified under the common law police duty to preserve the peace, prevent crime and protect life and safety. In other words, the police response to the anonymous tip about McMahon’s children engaged a positive obligation on their part to assist McMahon’s children who may have been in distress, even if the extent of their distress was unknown to them at the time they received the tip. The Crown argued the anonymous tip was akin to a 9-1-1 call and therefore constituted sufficient evidence of the reasonableness of the police action. Finally, the Crown suggested that once the common law duty is found to exist, the police are both authorized and duty bound to enter a private dwelling without a warrant in furtherance of their power, without considering whether entry was reasonably necessary in the circumstances.

The SKCA found the warrantless entry was not justified by child welfare concerns in the absence of exigent circumstances. The testimony of the officer at trial did not satisfy the trial judge that she believed the life or safety of the children were in danger; she only had a vague, anonymous tip that the children were not being properly fed and the house was in poor condition.  As such, the officer did not have reasonable grounds to believe that the children were in need of protection. There was no direct evidence that the children were in distress. The anonymous tip, which was received second hand and came from an unknown source, was vague and not compelling or credible. The warrantless entry was without McMahon’s informed consent. McMahon was not advised of her right to refuse police entry or of the ability of the police to get a warrant under the Child and Family Services Act. No matter how well intentioned the officer was, the warrantless, non-consensual, non-urgent search of her home was a serious violation of her s. 8 Charter rights.

Of note, even though the legal basis (principles) discussed in this decision appear sound, your provincial legislation may grant or authorize other powers that the CFSA in Saskatchewan does not, so please refer to the relevant legislation in your territorial jurisdiction for guidance.

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