Law Times

Law Times • January 23, 2017 Page 9 www.lawtimesnews.com Privacy advocates, law enforcement have different opinions Debate over police search powers continues BY SHANNON KARI For Law Times I t is nearly 25 years to the day since the Supreme Court of Canada decided whether On- tario Provincial Police acted improperly by placing a rudimen- tary tracking device inside the car of a suspect in a number of mur- ders without obtaining a warrant. The battery-powered radio transmitter emitted beeps and provided the general location of the vehicle. As the court heard, it was an alternative to using bin- oculars to conduct surveillance. The use of the device did not lead to evidence in the murders but a criminal charge of mischief when the suspect intention- ally damaged a communications tower. Writing for the majority in R v. Wise, Justice Peter Cory found that a warrant should have been obtained but police acted in good faith and the evi- dence on the mischief charge was admissible. In dissent, Justice Gérard La Forest stated that an individual has a reasonable expectation of privacy in their movements as well as their communications. La Forest wrote that he found it "outrageous" that on the basis of "mere suspicion" police could attach a beeper to a vehicle with- out first obtaining a judicially authorized search warrant. "In this era of explosive tech- nology, can it be long before a de- vice is developed that will be able to track our every movement for indefinite periods even without visual surveillance?" asked La Forest in the 1992 ruling. The notion of radio-transmitted beepers as an advantage to bin- oculars may now seem amusing. But the fundamental ques- tions the Supreme Court grap- pled with in Wise — the balance among police powers, privacy rights and technology — are no different than courts are cur- rently asked to interpret on a daily basis. Instead of beepers, police make use of IMSI catchers to mimic cell towers, seek orders to access information for all mo- bile phone users in a certain area or request text messages from multiple phones over large peri- ods of time. The current debate over ap- propriate police search powers comes as the federal govern- ment has just concluded a con- sultation period following the publication of a green paper on national security. What the government will do next is unclear, but both pri- vacy advocates and law enforce- ment officials have very different views on the right path to take. "We might argue that we are living in an age of surveillance," says Brenda McPhail, director of the privacy, surveillance and technology project at the Cana- dian Civil Liberties Association in Toronto. In its submission to the fed- eral government during the con- sultation, the association stressed that the restrictions on police in a digital world (as set out by the Charter) should be just as strin- gent as in the physical world. "There is not a lot of informa- tion about how these new tech- nologies are being used [by law enforcement]," says McPhail. "We are simply told it is OK. We need more accountability." From the perspective of po- lice, technology and the courts are imposing unfair obstacles to conducting effective criminal investigations. To try to make its point, the Royal Canadian Mounted Po- lice granted confidential access to reporters from the CBC and the Toronto Star last year to 10 high-priority criminal files. RCMP commissioner Bob Paulson called for warrant-less access to Internet subscriber in- formation, despite the Supreme Court's ruling in R v. Spencer in 2014 that police must obtain a production order for this data. David Fraser, a privacy law- yer and partner at McInnes Cooper LLP in Halifax, says a production order is an appropri- ate requirement. "They just want an easier way to do their job. I don't think it is unreasonable to say this is about being lazy," he says. "You can make the produc- tion order process more ef- ficient. But you do not just do away with it." Police demands include re- quests for access to this type of information at the beginning of an investigation, says Fraser, when they would not have evi- dence to support the obtaining of a court order. "I want the same thing Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. ROBERT BEN | LEONARD KUNKA | ALAN FARRER Untitled-4 1 2017-01-17 3:02 PM FOCUS Brenda McPhail says more accountability is needed about the way law enforcement agencies use new technologies in their investigations. Recent privacy rulings January 2016 R v. Rogers Communications Ontario Superior Court Justice John Sproat is asked to provide guidance on what measures police should comply with, when seeking so-called "tower dump" production ordered. A tower dump order requests records of all cellular traffic through a specific tower during a certain time period. It can result in service providers being required to turn over the names and addresses of "hundreds of thousands, if not millions of subscribers; who they called; who called them; their location at the time; and the duration of the call," the judge noted. The guidelines include directions for police to tailor any re- quests, explain why a certain tower and time period is relevant and look for ways to reduce the number of subscribers captured by any production order. June 2016 Project Clemenza Quebec Superior Court Justice Michael Stober lifts a publica- tion ban in R v. Mirachi, related to techniques used by the Royal Canadian Mounted Police in an organized crime pros- ecution. Its "covert intercept unit" utilized "IMSI catchers" (also known as Stingrays) in the investigation. The devices mimic cellphone towers to collect mass data, in- cluding location, texts and e-mails, from all phones used in the area. The lifting of the publication ban reveals that the RCMP was able to decrypt scrambled pin-to-pin messages from Black- berry devices. The judge rules that the fact that service providers allowed police access to equipment to expose target communications must be disclosed. October 2016 X (Re) Federal Court of Canada Justice Simon Noel finds that the Ca- nadian Security Intelligence Service illegally kept possession of data about innocent third parties for the previous decade. The content of "non-threat" communications was destroyed, but "associated data" obtained about these people was stored in a database, found the court. "CSIS has breached again, the duty of Canada it owes to the Court," wrote Noel. "The CSIS has a limited mandate which does not permit the retention of associated data…therefore this retention of asso- ciated data is illegal," he stated. CSIS then stated it would no longer keep this type of data. LT See Police, page 12

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