Case Report – SCC alters section 24(2) test… applies it in search and seizure case

On July 17th, the Supreme Court of Canada issued two search and seizure decisions. In R. v. Harrison, the majority applied a newly-developed test for excluding evidence obtained in breach of the Charter and excluded evidence obtained in a “brazen” and “flagrant” unlawful search of a rental car. In R. v. Shepherd, the Court unanimously held that a brethalyzer demand was made based on reasonable and probable grounds and was therefore lawful.

Real and non-conscriptive evidence excluded in Harrison

The Ontario Court of Appeal’s majority decision in Harrison has been criticized for allowing in evidence that would bring the administration of justice into disrepute. It is about a drug charge that followed a police demand to pull over a rental car on a Northern Ontario highway. The officer had no real reason to stop the car other than he had been told it was rented at the Vancouver airport and it was driving at only the speed limit. After the stop, the officer learned that the driver was driving with a suspended license, arrested the driver and searched the vehicle purportedly incident to that arrest. He turned up a large stash of cocaine.

Though the trial judge found the officer’s in-court testimony to be misleading, he admitted the evidence of the found drugs because he felt the criminality of the officence to be serious. A majority of the Ontario Court of Appeal agreed.

A majority of the Supreme Court of Canada, with Dechamps J. dissenting on his own, held that the evidence ought to be excluded based on the police officer’s blatant disregard for Charter rights and his misleading testimony. The majority applied the new three-part test articulated in the Court’s concurrently-issued decision in R. v. Grant, in which it said a court must assess and balance the affect of admitting evidence on society’s confidence in the justice system having regard to:

the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct)
the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little)
society’s interest in the adjudication of the case on its merits

This framework was endorsed by the majority Grant to encourage a more contextualized approach to admissibility and to back away from a rule that conscriptive evidence is generally inadmissible. In Harrison, the found cocaine was neither concriptive evidence nor unreliable in any way. Regardless, the Court held that it should have been excluded, finding that the exclusion of reliable evidence of a serious offence did not outweigh the importance of maintaining Charter standards.

For an early critique of the Grant framework, see here.

R. v. Harrison, 2009 SCC 34.

Trial judge wrong in finding officer had no reasonable grounds for breathalyzer demand

The sole issue in Shepherd was whether a trial judge erred in finding that a police officer had insufficient grounds to demand a breathalyzer. The judge that the officer had a sufficient subjective belief but that his belief was not objectively reasonable, in part because he had relied on the accused person’s initial failure to pull over. The accused person said that he didn’t pull over because he thought the police car was an ambulance. The trial judge felt this excuse was valid, and held that the officer did not have reasonable grounds even though he testified that the accused person looked lethargic, had red eyes and smelled of alcohol.

The Court held that the existence of reasonable grounds is a question of law subject to review on a standard of correctness. It then held:

With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts. The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd. The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance. Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail.

R. v. Shepherd, 2009 SCC 35.

Case Report – Whistle-blower leaks privileged report to Crown… charges stayed

Today, the Ontario Court of Appeal allowed an appeal of a noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company in its Stinchcombe production the company immediately objected, and at trial moved before a justice of the peace for a declaration (that the report was privileged) and a stay. It initially succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal to a judge, the Court overturned the stay and the costs order. It held that the proper remedy for breach of the defendants’ section 8 rights was an order excluding the report and that the motion for a stay based on prejudice to trial fairness was premature.

In allowing the appeal, the Court of Appeal started by minimizing a statement made by the justice of the peace about the reporting being “primarily informational.” It held the lower court had found the report was subject to solicitor-client privilege and that this point was not challenged in the appeal.

The Court of Appeal then held that the presumption of prejudice endorsed by a majority of the Supreme Court of Canada in Celanese applies when the Crown comes into possession of a defendant’s solicitor-client communications:

Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were “attempting to utilize a civil onus to achieve a criminal result”. I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

On the facts, the Court of Appeal held that a stay was the appropriate remedy. The basis for the finding is narrow. It stressed that the justice of the peace had made a specific finding that the report set out items that could be used to the disadvantage and prejudice of the defendants and held that the Crown had not led any evidence about its distribution and use of the report to rebut the inference.

R v. Bruce Power, 2009 ONCA 573.

Case Report – USSC strip search case relevant to Canadian educators

The United States Supreme Court issued its decision in the much-discussed case of Safford Unified School District #1 v. Redding on June 25th. The majority held that a strip search of a 13-year-old Savana Redding violated the Fourth Amendment but that the school officials who conducted the search were immune from liability under the American qualified immunity doctrine.

The search occurred after Redding’s friend told her assistant principal that she received a prescription strength ibuprofen pill and several over the counter painkillers from Redding. The assistant principal called Redding to his office, conducted an interrogation and searched her bag. His interrogation was aimed only at confirming his suspicion that Redding had been involved in providing other students with contraband pills. He did not ask questions to determine whether Redding was carrying pills or where she might be carrying pills, but nonetheless directed the school nurse and an administrative assistant to conduct a strip search. The two women asked Redding to pull her bra out and to the side and shake it and to pull out the elastic on her underpants. They did not find any pills.

Justice Souter wrote for the five judge majority. He applied the relaxed standard for school searches set out in the United States Supreme Court’s 1985 decision in New Jersey v. T.L.O and held that the search was justified at its inception:

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today.

The strip search, however, was not justified. After explaining that strip searches are “categorically distinct” from other less intrusive searches, Souter J. said:

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The search was disproportionate, according to Souter J., because there was no evidence of a serious danger to students and the assistant principal had no reason to suspect that Redding was carrying pills in her bra or underwear.

Justice Stevens and Justice Ginsburg agreed with the majority’s Fourth Amendment finding but disagreed with its finding on qualified immunity.

Justice Thomas dissented on his own. He argued that the majority decision is inconsistent with the letter and spirit of T.L.O., and in particular its call for deference to the professional judgement of educators. He also said that the contextual secondary threshold applied by the majority will be hard for educators to apply.

In Canada, the leading case on school searches is the 1998 Supreme Court of Canada decision in R. v. M. (M.R.), where the Court endorsed a relaxed standard for school searches based on T.L.O. Justice Cory wrote for the majority and said:

The test established in T.L.O. dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances. However it must be observed that this test has been subject to criticism in the United States (see, e.g., J. M. Sanchez, “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381; Thomas C. Fischer, “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409). Nonetheless in my view the test set out in T.L.O. can be applied in the elementary and secondary school setting in Canada. Significantly the same result reached in T.L.O. can be obtained by applying principles to be derived from decisions of this Court which have considered the Charter.

M. (M.R.), affirmed by the Supreme Court of Canada in 2008, dealt with a “pat down” type search of a male student in which a vice-principal found drugs after asking him to turn up a pant leg. The Court found this means of search to be reasonable based on an application of the following principles:

The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected…

The circumstances to be considered should also include the age and gender of the student. For example, a search of the person of a female student by a male teacher may well be inappropriate and unreasonable. Every search should be conducted in as sensitive a manner as possible and take into account the age and sex of the student. It should not be forgotten that the manner in which students are treated in these situations will determine their respect for the rights of others in the future.

This is the same as the proportionality requirement established in T.L.O. and applied in Redding, so Canadian educators may heed the caution offered by Redding. Thomas J. is right that the fully-contextual secondary standard governing the extent of school searches is not precise. The majority opinion in Redding makes clear, however, that strip searches will only be justified in special cases.

Safford Unified School District #1 v. Redding, 557 U.S. ____ (2009).

SCC dismisses application for leave in challenge to bank investigation

One June 4th, the Supreme Court of Canada denied an application for leave to appeal the Ontario Court of Appeal’s decision in Royal Bank of Canada v. Ren. This January, Ontario’s top court affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud. My summary of the Ontario Court of Appeal judgement is here.

Case Report – Alta. C.A. says “chewing gum survey” does not cause an unreasonable search

On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”

R. v. Delaa, 2009 ABCA 179 (CanLII).

Case Report – Ont. SCJ says no expectation of privacy in data stored on work computer

On April 28th, the Ontario Superior Court of Justice held that a teacher had no expectation of privacy in information stored on his work laptop.

A school board investigated the teacher after noticing he had an abnormal pattern of network use. A member of the board’s IT staff accessed his laptop remotely and found nude photographs of a 16-year-old Grade 10 student. Soon after, the board obtained the laptop from the teacher (who refused to provide his password) and reported him to the police. The police charged him with possession of child pornography. Given the teacher allegedly obtained the photos by accessing a student’s e-mail account, the police also charged him with unauthorized use of a computer pursuant to section 342.1 of the Criminal Code.

The Ontario Superior Court of Justice allowed an appeal of the trial judge’s decision to exclude evidence based on a finding the board had breached the teacher’s Charter right to be free from unreasonable search and seizure. It held that the trial judge had erred in concluding that the teacher had an objectively reasonable expectation of privacy, stating:

The laptop on which the impugned evidence was found was issued to Mr. Cole as an instrument of his employment with the school board by his employer. The evidence is that the laptop was the property of the school. Mr. Cole, in his teaching role, taught students in the classroom using this employer-issued computer while his students used their own laptops. Both the respondent and his students used school board software, server, and the school’s computer network. I take judicial notice of the fact that employers, in their use of computers to carry on their business, invest tremendous amounts of money and time creating, inputting, analyzing, managing and protecting the data coming into, going out of, and stored on their computer systems.

While the judgement contains numerous statements as broad as this, the Court did state that its judgement turned on a number of specific facts. It stressed that the teacher was bound by his employment contract to an acceptable use policy that limited his interest in information stored on the laptop and that the teacher (quite remarkably) had a special role in supervising computer use at the board that ought to have reinforced this point.

This appeal judgement reflects an approach that has been traditionally adopted by Canadian labour arbitrators and, to the extent they have addressed the question, Canadian courts. It is not surprising in itself, but the sharp difference in view held by the trial judge nicely illustrates the current tension on this issue. The trial judge had said:

In the present case, the accused had not rented the computer but was given the exclusive use of it, such exclusive use being secured by a password. Its contents could not be accessed, except when in actually in use or when one was in possession of the password. We also know that there existed some protocol at least to advise staff of any imminent intention to recover actual possession of their computers. Barring this, staff were allowed to use their computer for limited personal purposes and, indeed, to take them home during the summer recess, whether for personal use or for the purpose of preparing their fall courses. Whatever the official policy might have been (this would likely avoid any later argument) the actual policy seems to have been to accept that staff would load private material onto their computers.

This might reveal a judge who was struggling with the idea that the black letter of policy can nullify the expectations that otherwise might be engendered by personal use. For now, this view remains the minority view (if that) and is reinforced by the recent “lawful access” decisions reported on this blog as typified by R. v. Wilson.

I’ll be speaking on this topic at the upcoming OBA “Hot Topics in Privacy Law” seminar. Details are linked here.

R. v. Cole, 2009 CanLII 20699 (ON S.C.).

The subscriber data issue and privacy expectations based on norms

If you’re a regular reader of this blog, you know I’ve been covering the recent string of cases in which the Crown has successfully answered Charter applications challenging the identification of internet users through simple letter requests to telecommunications carriers. The Crown has been successful in every case but one which is now subject to a significant appeal to the Ontario Court of Appeal.

The cases have turned strongly on the wording of the telecommunications carriers’ terms of service, which led a commenter to this blog to question whether it is proper to give effect to terms of service that might conflict with societal norms. He raised the Supreme Court of Canada’s warning that subjective expectations alone should not give government a license to intrude in this famous quote from Tessling:

I should add a caveat. The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. In an age of expanding means for snooping readily available on the retail market, ordinary people may come to fear (with or without justification) that their telephones are wiretapped or their private correspondence is being read. One recalls the evidence at the Watergate inquiry of conspirator Gordon Liddy who testified that he regularly cranked up the volume of his portable radio to mask (or drown out) private conversations because he feared being “bugged” by unknown forces. Whether or not he was justified in doing so, we should not wish on ourselves such an environment. Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard.

The recent subscriber data cases have not featured significant discussion about societal norms and anonymous internet use. The most detailed consideration of what ought to be was in R. v. Friers (from last September and only recently released on Quicklaw). The Court dismissed an argument that a telecommunications carrier cannot “unilaterally abrogate a defendant’s Charter rights.” Nadel J. squarely framed the issue as one of norms, noting “…I am of the view that the broad and neutral framing of the question to be answered is whether in a society such as ours do persons who use the internet on terms that their illegal use of it will not attract confidentiality have a reasonable expectation of privacy?” He then held that the defendant had no expectation of privacy in his trading of child pornography, which itself was conducted openly on the internet.

For more on the reasonable expectation of privacy test and its limits, see this recent article by Bruce Schneier, which links to the most recent American academic commentary on the expectation of privacy test. For some Canadian academic commentary, see this scholarly article by Ian Kerr and Jena McGill of University of Ottawa.

Case Report – Appeal court says “no knock” entries need not be endorsed in a warrant

On February 26th, the New Brunswick Court of Appeal held that the police need not have express authorization to use a “no knock” or “dynamic” entry in searching a suspect’s residence. The thrust of the judgement is nicely summarized in the following paragraph:

Neither the police nor the Crown requested the issuing judge make an endorsement authorizing a “no knock” entry. Furthermore, the issuing judge did not, on his own motion, choose to make such an endorsement. I also note there is no legislative provision which requires or permits such an endorsement. No doubt for good reason. It does not take much imagination to think of situations where circumstances change after the issuance of a warrant, which either eliminate the need for a “no knock” entry or require one which was previously thought unnecessary. Following the issuance of the warrant, police officers and judges should not be required to meet again to address the appropriate mode of entry. To impose such a requirement upon police and the judiciary would result in the micro-management of police investigations. The development of the law should not sanction the management of police operations by the judiciary except where necessary in the course of fulfilling judicial functions. I do not consider the pre-determination of the method by which police are to exercise their discretion and respond to changing circumstances in executing the search of a suspect’s premises to constitute part of the judicial function.

Based on this reasoning, the Court also held that the evidence the Crown can use in demonstrating that the reasonableness of using a no knock entry is not limited to that which it put before the issuing judge.

R. v. Perry and Richard, 2009 NBCA 12 (CanLII).

Case Report – Another subscriber data search challenge dismissed

On February 18th, the Ontario Superior Court of Justice held that the police conducted a lawful search by asking an ISP for a subscriber’s name and residential address in order to link that information with a known IP address. Unlike in its February 10th decision in Wilson, the Court accepted that the disclosure of a subscriber’s name and residential address is revealing of the “details of the lifestyle and personal choices of [an] individual” because it allows for the identification of an anonymous internet user. The Court nonetheless held the applicant lacked a reasonable expectation of privacy in the information given the terms of the contract his mother (and co-resident) had entered into with the ISP.

R. v. Vasic, 2009 CanLII 6842 (ON S.C.).

Twitter stream of Osgoode’s Cybercrime and Electronic Evidence Symposium

I attended Osgoode’s Symposium on Technology Crime and Electronic Evidence today. A great program, with dialogue on search and electronic evidence issues from keynote speaker Jennifer Granick of the EFF, Crown counsel Susheel Gupta, computer forensic professional Philip Fodchuck, Crown counsel Michel Fairburn, defence counsel Scott Fenton and defence counsel Alan Gold among others.

I didn’t plan on live blogging but had my computer open and kind of got into it. Here’s the stream, which includes some “nuggets” and cites to case law.

Thanks to the presenters and organizers. Inspiring.

Dan