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).

Case Report – Search warrant indexing challenge to proceed without Attorney General as respondent

On July 27th, Moir J. of the Nova Scotia Supreme Court issued a preliminary ruling in a novel Canadian Broadcasting Corporation application in which it is seeking an order requiring the Nova Scotia Provincial Court to index its search warrants based on the open courts principle and the Charter.

In his preliminary ruling, Moir J. held that the Attorney General, as a representative of the executive branch of government, was not a proper respondent because the executive cannot control the judiciary’s records. Though acknowledging that the application “seems to concern a clerical, or mechanical, function,” he held that the matter, in its essence, concerns the sufficiency of access to records in order to satisfy the open courts principle. Moir J. held that the application can continue with the Chief Judge of the Provincial Court as a respondent and the Attorney General, as financial supporter of the judiciary, as an affected party.

Canadian Broadcasting Corporation v. Nova Scotia (Attorney General), 2010 NSSC 295 (CanLII)

Case Report – BCCA telephone recording case deals with spousal privilege and the reasonable expectation of privacy concept

The British Columbia Court of Appeal issued a judgement on July 21st with two findings of note – one on the whether spousal privilege applies to communications intercepted by a third-party and another on the protection of information subject to a reduced yet reasonable expectation of privacy.

The matter involved recordings of telephone calls made from a correctional facility by an accused person, some to his spouse. The facility received a production order, listened to the recordings for the first time and turned them over to the Crown. They apparently contained statements favorable to the theory on which the Crown’s prosecution was based but no “direct evidence of criminal activity.” The accused person argued that the recordings were inadmissible based on spousal privilege and section 8 of the Charter.

The Court first rejected the spousal privilege claim. It held that, under the Canada Evidence Act, spousal privilege does not preclude a third-party from giving evidence about statements made from one spouse to another. The one exception, explained the Court, is for private communications between spouses that are intercepted by a lawful wiretap – a result derived from a provision the Criminal Code that deems intercepted communications to maintain their privileged status. The Court held that the deeming provision (section 189(6)) did not apply in the circumstances.

The Court then upheld the section 8 claim. It held that the production order served on the facility was invalid because of insufficient grounds and held that disclosure by the facility to the Crown was therefore made in breach of the accused person’s reduced but nonetheless reasonable expectation of privacy. In reaching this finding, the Court gave effect to the regime for recording and reviewing inmate telephone calls authorized under the British Columbia Correction Act, which recognizes a facility’s right to record, review and disclose calls within certain parameters. This privacy-security balancing regime led the Court to apply the reasonable expectation of privacy concept in a more nuanced manner than the “all or nothing” manner in which it is often applied.

R. v. Siniscalchi, 2010 BCCA 534 (CanLII).

Case Report – Court says lawyer’s seized hard drives ought to be stored by a neutral

On April 20th, the Ontario Superior Court of Justice ordered a number of computers and hard drives that had been seized from a lawyer as part of a child pornography investigation to be stored by a neutral examiner.

The devices were seized, immediately sealed and stored by the local police. Presumably, they all contained solicitor-client communications belonging to the lawyers’ clients. The Attorney General and the Law Society agreed to a protocol that involved retaining a neutral examiner to image hard drives and use a non-manual review process to look for and extract any images of child pornography. They did not, however, agree on where the drives and images would be stored.

The Law Society argued that the risk of an inadvertent security breach at the police station required that the devices be stored either at the Court or by the neutral expert. It argued that public confidence in the administration of justice would be compromised if privilege holders learned that communications related to their criminal defence were in the care and the control of the police.

Though she held that the risk of a breach of privilege was minimal, Justice Hennessy nonetheless ordered the devices to be stored by the neutral. She said:

This Court has a duty to ensure that all safeguards are put in place to avoid completely or reduce as completely as possible, any risk of a breach of solicitor-client privilege. This duty is particularly onerous in this situation, where any breach of the privilege would put the privileged material in the hands of the police who are adverse in interest to the privilege holders. This is not the case of a generic protection fo privilege against any disclosure to an uninterested person. The consequences of a breach of the solicitor-client privilege in this case go to fundamental principles. At this early stage of the proceedings, the Law Society does not have to show that there is a probability f a breach of the privilege if the seized devices are stored with the Timmins Police. We are in a preventative situation now. Fortunately, we are not dealing reactively to an allegation of an inadvertent breach.

According to Justice Hennessy, the Attorney General, though objecting the Law Society’s position, did not identify any specific concerns with storage at the neutral’s facility. She also noted that her order was based on special circumstances, a likely reference to the fact that the police investigation did not require an examination of any solicitor-client communications.

Attorney General v. Law Society, 2010 ONSC 2150.

Case Report – Law enforcement benefits from inadvertently hearing lawyer’s telephone call

On June 10th, the New Brunswick Court of Appeal declined to exclude a recorded telephone conversation in which a lawyer charged with obstruction of justice allegedly counseled a client’s wife to destroy evidence.

The RCMP civilian agent who listened to the call pursuant to an authorization to intercept missed the first part of the call in which the accused identified himself as a lawyer. She listened, heard the caller make statements she considered to be obstructive in nature and conveyed what she had heard to her supervisor. When she played the recording back to the supervisor, they both heard the first part of the call and realized the caller was a lawyer. In breach of the terms of the authorization, they nonetheless continued to listen and only then sealed the communication.

The Court of Appeal held that the RCMP breached section 8 of the Charter by failing to stop and seal the recording as soon as it was clear the call was from a lawyer. It declined, however, to exclude the recording from evidence. In doing so, the Court was influenced by the fact that the communication was heard in in full through inadvertence and that it was not, in fact, subject to solicitor-client privilege.