No reasonable expectation of privacy in bad breath

On January 7th, the Ontario Superior Court of Justice overturned a trial decision that had recognized a Charter-protected expectation of privacy in the odour emanating from one’s breath. A doctor who had treated the accused following a motor vehicle accident told a police officer that the accused’s breath smelled of alcohol, following which the police obtained an warrant to seize a blood sample. The Court also noted that the doctor was not acting as a state agent in making his observation and reporting to the police.

R v Maureen Daly, 2014 ONSC 115 (CanLII).

SCC addresses the line between hunch and suspicion

The Supreme Court of Canada issued two decisions today that attempt to define the “reasonable suspicion” standard – a relaxed standard that allows for searches in the absence of prior judicial authorization in certain investigative contexts, including sniffer dog searches and school searches, for example.

The more principled of the two decisions is R v Chehil, which involves a sniffer dog search at an airport that the police conducted after determining that the accused fit the profile of a drug carrier: (1) he was traveling on a one-way plane ticket; (2) his flight originated in Vancouver; (3) he was traveling alone; (4) he purchased his ticket with cash; (5) his ticket was the last one purchased before the flight departed; (6) he checked one piece of luggage; (7) his flight was overnight; (8) his flight took place mid- to late-week; and (9) he flew on a WestJet flight. These factors, based on their training and experience, led the police to form a suspicion that the Court unanimously held was reasonable.

Justice Karakatsanis wrote the decision in Chehil. She held that the existence of a reasonable suspicion must be assessed against the totality of the circumstances. The police must assess all the objective factors that weigh for and against the possibility of criminal behavior and may have a reasonable suspicion even if the factors (each on their own or together) could support an innocent explanation.

Though the ratio of Chehil is therefore permissive, Justice Karakatsanis does state that the police must be subject to “rigorous judicial scrutiny”:

The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience.

Evidence of police training and experience was a prominent feature of the dialogue in R v MacKenzie, a case in which the Court split five to four in affirming a police search.

MacKenzie is about a sniffer dog search that the police executed after conducting a highway traffic stop. The factors at issue were about guilty appearance and demeanor and more equivocal than in Chehil: the accused slowed down and pulled over upon sight of the police; he was nervous when confronted, he was sweating (on a warm day); he was breathing rapidly; he had pinkish eyes; he was driving west to east; he corrected an initial response given about travel dates. The police evidence about the probity of the factors was also more qualified; the police testified that the factors were associated with drug carrying, but not strongly.

The majority and minority in MacKenzie differ on how much weight to give a police opinion that is based on training and experience. Both accept that police opinions based on training and experience should be considered in assessing the probity of the factors. Justice Moldaver (for the majority) says that deference is not “necessarily owed to a police officer’s view of the circumstances” but that that police should be “allowed to carry out their duties without undue skepticism.” Justice LeBel (for the minority) says quite clearly that the police are owed no deference.

R v Chehil, 2013 SCC 49 (CanLII).

R v MacKenzie, 2013 SCC 50 (CanLII).

Voluntary bank disclosure to police lawful

On August 7th, Justice Fuerst of the Ontario Superior Court of Justice held that the police did not breach an individual’s reasonable expectation of privacy by receiving information from two banks and using the information to obtain restraint orders.

The judgement is notable for the Court’s recognition of the banks’ legitimate interest in providing voluntary assistance to the police. Justice Fuerst said:

The bank was directly implicated in allegations of money-laundering. It had a legitimate interest in preventing the criminal misuse of its services, particularly in circumstances where accounts associated to the applicant were alleged to be offence-related property subject to forfeiture.

Disclosing personal information to the police (within certain parameters) is permitted by section sections 7(3)(c.1) and 7(3)(d) of the Personal Information Protection and Electronic Documents Act, which Justice Fuerst noted in her reasonable expectation of privacy analysis. Section 7(3)(d) authorizes disclosures initiated by commercial organizations. Notably, Justice Fuerst held that section 7(3)(d) allows for some two-way dialogue between the disclosing organization and the police: “It is unreasonable to interpret s. 7(3)(d) so narrowly that police officers to whom information is given by organizations like banks about possible criminal activity can do no more than passively receive it and are prevented from asking for specifics or details necessary to take steps in response.”

R v Kenneth James, 2013 ONSC 5085 (CanLII).

Government’s collection of census information does not breach Charter

On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.

The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:

Thus , the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in the information requested by the 2006 Long Form Census, which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi – criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and “delinked” from the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.

The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.

R v Finlay, 2013 SKCA 47.

Child porn files seized from work computer admissible

On March 6th, the British Columbia Court of Appeal held that an accused’s section 8 Charter rights were violated when his work computer was seized by the police without a warrant but allowed the admission of evidence from the computer because it would not bring the administration of justice into disrepute.

The case illustrates that the standard for finding an objective reasonable expectation of privacy on a work computer following the Supreme Court of Canada’s decision in R v Cole is very low. While the record in Cole weighed particularly in favor of  an expectation of privacy finding, in this more recent case, the were no special facts. The employee (a school principal), for example, only used his work computer for browsing the internet. The Court nonetheless recognized a Charter-protected privacy interest.

Unfortunately, as in Cole, the record in this case did not appear to support any discussion of whether the computer was networked or the impact of the employer’s control over its network.

For an essay on what Cole means for employers, click here.

R v McNeice, 2013 BCCA 98 (CanLII).

 

 

Ontario CA on computer searches – broad access and targeted searches endorsed

Yesterday the Ontario Court of Appeal issued a judgment in which it held the police violated section 8 of the Charter by proceeding with a lawfully authorized search of a personal computer after finding evidence of a crime that was not within the scope of authorization.

The police were granted a warrant that permitted the search of a computer to find evidence of fraud. In the course of searching the computer for such evidence, they found images believed to be of child pornography. After seeking legal advice, the police continued and found videos believed to be of child pornography.

The accused brought a Charter application. One issue was whether the broad authorization to search the computer (without date or file type limitations) was reasonable. Another was whether, having found the images, the police should have stopped to obtain a second warrant.

On the scope of the warrant, Justice Blair accepted arguments by the Crown about the need for a forgiving rule because of the challenges in conducting a computer search. He said that “the language used to authorize computer searches may need to be relatively broad in order to cope with the practical realities of an ever-changing and developing age of technology” and held the warrant at issue was reasonable on its face because it precisely defined the kind of evidence to be sought (i.e., evidence of fraud).

Significantly, Justice Blair suggested that the need to authorize access in broad terms justifies the imposition of a duty to search with care. The following are the most relevant passages:

Thus, authorizing a search of the contents of a computer is not unlike authorizing a search of another “place” or of a more expansive search of the same “place.” There seems to me to be no reason in principle why the state should be any more entitled to roam around through the contents of a person’s computer in an indiscriminate fashion than it would be to do so in a person’s home without further authorization.

The police have available to them the necessary software, technology and expertise to enable them to tailor their searches in a fashion that will generate the information they seek, if it exists, while at the same time minimizing the intrusion on the computer user’s privacy rights in other information stored on the computer. Sergeant Rumnyak testified that the EnCase software used in this case permits the police to view all data and all files contained on the computer but that the police do not normally look at all files in the course of an investigation; they focus on those they think will generate the evidence they are looking for. That is as it should be.

Consistent with this protective view, Justice Blair held that the police may seize incriminating evidence that is beyond the scope of a warrant if it is found, but must stop and obtain a warrant before continuing search for additional incriminating evidence. He therefore held that the police violated section 8 by failing to stop upon finding the accused’s incriminating pictures. According to Justice Blair, they should have sought a warrant.

On first read, it seems like the suggested duty to conduct a targeted search (my words) creates a good basis for scrutinizing computer searches and is likely to put significant pressure on law enforcement to undertake a logical, minimally intrusive search. I’m also curious whether the search process is as tidy as the summary of evidence above makes it seem.

R. v. Jones, 2011 ONCA 632.

Question of Remedy for Privilege Breach Back to Securities Commission in Knowledge House Affair

On Thursday, the Nova Scotia Court of Appeal issued a judgement about the Knowledge House affair, which has become as notable for the handling of an e-mail server containing solicitor-client communications as for the securities law issues at its heart.

In 2005, Justice Scanlan issued a scathing judgement in which he rejected an argument that certain individuals had waived privilege by sending communications over a company-owned server. In the result, he ordered removal of counsel who had seized the server and reviewed e-mails in prosecuting a civil claim on behalf of National Bank Financial Limited.

The Nova Scotia Securities Commission obtained privileged communications from NBFL and allegedly reviewed them in aide of its investigation. The Court of Appeal dealt with the affected persons’ quest for a remedy against the Commission in 2006. Justice Cromwell (as he then was) held that the affected persons’ application for certiorari was premature, but said the Commission should take “serious and immediate steps” to do right. The Commission did not respond to the Court’s suggestion by initiating proceedings to resolve the privilege issue. Instead, it issued formal allegations. The affected persons then moved before the Commission for a remedy. In June 2010, after numerous intervening proceedings, the Commission held that the privilege breach issue should not be bifucated and dealt with in advance of the merits of the Commission’s allegations.

Thursday’s decision is strictly procedural. Though it recognized that the hanging investigation and privilege question has been “stressful and costly” for the affected persons, the Court held that the delay in hearing the request to remedy the privilege breach was understandable and that the request for a remedy could be dealt with by way of a voire dire at the commencement of the hearing of the Commission’s allegations. It upheld the Commission’s decision.

Wadden v. Nova Scotia (Attorney General), 2011 NSCA 55.

Divisional Court Rebuffs Charter Challenge to Health Regulator Investigation Power

On January 17th, the Divisional Court held that the power to issue a summons without judicial authorization that is granted to investigators appointed under the Health Professions Procedural Code complies with section 8 of the Canadian Charter of Rights and Freedoms.

Section 76(1) of the Code gives investigators appointed by a college of a regulated health profession the power to summons a person to give evidence on oath or produce evidence relevant to the subject matter of an investigation. The appellant – a doctor whose license was revoked for engaging in acts of sexual misconduct with three boys – argued that the power is wide-sweeping, prone to misuse and disproportionate in light of the legislative purpose underlying the Regulated Health Professions Act and its Code. The appellant also argued that the power interferes with the public interest in keeping the contents of a Crown brief private.

The Court dismissed this challenge. It held that the power was reasonable based on the following factors:

  • The investigation is a regulatory investigation and not a criminal or quasi-criminal investigation. The Court said, “the fact that the same act may also give rise to a criminal consequence does not mean that when the act is dealt with in the regulatory context, the ‘context’ of the regulatory proceedings is criminal or quasi-criminal.”
  • A power of summons is less intrusive than a power to enter and search a premises because it can be challenged prior to being answered. This ability to challenge is enjoyed by the Crown when it is asked to produce a copy of all or part of a Crown brief.
  • Appointment by a college based on a belief in misconduct on reasonable and probable grounds is a precondition to exercising the summons power.
  • There is a strong public interest in regulating health professionals. The Court rejected an argument that the power to investigate need not extend to doctors’ personal (as opposed to professional) activities. It held that acceptance of this argument would lead to impractical and absurd results.

The Court also dealt with a number of grounds of appeal related to the disciplinary committee’s handling of the appellant’s case that I have not covered here.

Sazant v. The College of Physicians and Surgeon, 2011 ONSC 323 (CanLII).

Case Report – SCC deals with the disclosure of customer information to law enforcement

On Wednesday, the Supreme Court of Canada held that an accused person had no reasonable expectation of privacy in detailed information about his residential power consumption over a period of time. The decision contains a significant dialog about the disclosure of customer information to law enforcement and, in such circumstances, the effect of terms governing the customer relationship.

Background

An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.

Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes and (2) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”). Note that the statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”

The Effect of Terms Governing Customer Information

A seven judge majority recognized the statutory permission as a relevant factor that weighed against a reasonable expectation of privacy.

For Deschamps J. (joined by Charron, Rothstein and Cromwell JJ.) the permission was a relevant factor. For Abella J. (joined by Binnie and LeBel JJ.) it was the dominant factor in the circumstances. In principle, the two majority judgments are similar.

Not so for the dissenting judges – McLachlin C.J. and Fish J. Here is a passage from their jointly written dissent:

Every day, we allow access to information about the activities taking place inside our homes by a number of people, including those who deliver our mail, or repair things when they break, or supply us with fuel and electricity, or provide television, Internet, and telephone services. Our consent to these “intrusions” into our privacy, and into our homes, is both necessary and conditional: necessary, because we would otherwise deprive ourselves of services nowadays considered essential; and conditional, because we permit access to our private information for the sole, specific, and limited purpose of receiving those services.

A necessary and conditional consent of this sort does not trump our reasonable expectation of privacy in the information to which access is afforded for such a limited and well-understood purpose. When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers.

Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. We authorize neither undercover officers nor utility employees acting as their proxies to do so.

The response to this argument by the majority is remarkably subtle. Deschamps J. agrees that the reasonable expectation of privacy standard is normative, suggests that she is not prepared to make a general pronouncement about the constitutional effect of “disclosure clauses,” but says that terms governing a customer relationship are nonetheless one relevant factor of many in assessing the reasonableness of a privacy expectation. Significantly, however, Deschamps J. does argue that a service provider’s equal interest in information about the services it provides to its customers weighs against section 8 protection:

A final factor affecting the informational privacy analysis and diminishing Mr. Gomboc’s expectation of privacy in the information disclosed by the DRA is the fact that his interest in the electricity use data was not exclusive. His electricity consumption history was not confidential or private information which he had entrusted to Enmax. As the supplier of electricity, Enmax had a legitimate interest of its own in the quantity of electricity its customers consumed.

Abella J.’s judgment on this issue is similar. Like Deschamps J., she deflects the strong minority argument: “There can be no examination of the totality of the relevant circumstances without including the fact that the Regulation exists. It cannot, therefore, be seen as neutral or irrelevant.”

Biographical Core and Personal Information

Five of the nine judges held that information about residential power consumption over a period of time reveals an individual’s “biographical core” of personal information.

Deschamps J., in the minority on this issue, held that police use of DRA technology reveals only “information about electricity use” and not about the intimate and personal choices of the occupants of a residence. She holds that DRA data can support a very strong inference that a residence is being used as a grow operation, but not much else. Though information about criminal activity is protected by section 8, Deschamps J. suggests that DRA’s focus on information about criminal activity minimizes its impact and, remarkably, favours its use as a privacy protective surveillance technique.

McLachlin C.J. and Fish J. take great exception to Deschamps J.’s suggestion that the use of DRA can be justified by its focus on the collection of information about criminal activity: “First, the constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used.” Aside from making this rebuttal, McLachlin C.J. and Fish J. cite to a law review article for the proposition that hourly electricity data can reveal “personal sleep, work, and travel habits, and likely identify the use of medical equipment and other specialized devices.”

Like McLachlin C.J. and Fish J., Abella J. finds that DRA information reveals information of the kind protected by section 8. She doesn’t reach quite as far though, relying more on the DRA’s efficacy in revealing information about criminal activity itself and the more basic proposition that section 8 protects such information.

Conclusion

Whether in the name of corporate social responsibility or something else, most businesses do not wish their services to be used for criminal activity. There is a relatively indisputable public interest in allowing businesses to report crimes that they discover in dealing with customers, but the legality of asking business to hand over their customer information has been less certain. Accused persons have recently made arguments (similar to that made by McLachlin C.J.C. and Fish J.) that suggest the normative rule embodied in section 8 of the Charter makes businesses’ own interest in records of customer information and any privacy-reducing terms of contract irrelevant. Though somewhat qualified, this judgment suggests that customer information, in particular when governed by terms that permit disclosure to law enforcement, is less likely to be protected by section 8 of the Charter.

R. v. Gomboc, 2010 SCC 55.


Case Report – Warrantless search for internet subscriber’s data okayed by BCSC

On November 1st, the British Columbia Supreme Court dismissed a Charter application that challenged a letter request made by the police to an internet service provider for the name and address of an account holder associated with a specific IP address at a specific point in time.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

In this case, Justice Meiklem of the BCSC endorsed the approach taken by the Ontario Superior Court of Justice in R. v. Wilson. He held that so-called “subscriber information” was not part of the applicant’s biographical core of personal information and held that the terms of service of his internet service plan weighed against a reasonable expectation of privacy. His Honour also commented, “It seems clear to me that, absent a finding of state agency, s. 487.014(1) [of the Criminal Code] provides the police with lawful authority to make a PIPEDA request for subscriber information, which an ISP is not prohibited by law from disclosing if it falls within the provisions of s. 7(3)(c. 1)(ii) of PIPEDA…”

R. v. McNeice, [2010] B.C.J. NO. 2131 (S.C.) (QL).