Focus: Debate over police search powers continues

It is nearly 25 years to the day since the Supreme Court of Canada decided whether Ontario Provincial Police acted improperly by placing a rudimentary tracking device inside the car of a suspect in a number of murders 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 binoculars 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 intentionally 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 evidence 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 without first obtaining a judicially authorized search warrant.

“In this era of explosive technology, can it be long before a device 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 binoculars may now seem amusing.

But the fundamental questions the Supreme Court grappled with in Wise — the balance among police powers, privacy rights and technology — are no different than courts are currently 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 mobile phone users in a certain area or request text messages from multiple phones over large periods of time.

The current debate over appropriate police search powers comes as the federal government has just concluded a consultation period following the publication of a green paper on national security.

What the government will do next is unclear, but both privacy advocates and law enforcement 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 Canadian Civil Liberties Association in Toronto.

In its submission to the federal government during the consultation, the association stressed that the restrictions on police in a digital world (as set out by the Charter) should be just as stringent as in the physical world.

“There is not a lot of information about how these new technologies are being used [by law enforcement],” says McPhail.

“We are simply told it is OK. We need more accountability.”

From the perspective of police, technology and the courts are imposing unfair obstacles to conducting effective criminal investigations.

To try to make its point, the Royal Canadian Mounted Police 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 information, 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 lawyer and partner at McInnes Cooper LLP in Halifax, says a production order is an appropriate 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 production order process more efficient. But you do not just do away with it.”

Police demands include requests for access to this type of information at the beginning of an investigation, says Fraser, when they would not have evidence to support the obtaining of a court order.

“I want the same thing [RCMP] Commissioner [Bob] Paulson wants, but done within the rule of law,” says Fraser.

In the area of password­protected or encrypted digital devices, the Canadian Association of Chiefs of Police has called for a new law to compel suspects to reveal this information so officers can access the devices.

Any such measure would likely be unconstitutional because of the Charter right against self-incrimination, suggests McPhail.

Fraser agrees and says that large U.S. technology companies would likely pull out of the Canadian market if they could not offer encryption features to their customers.

The privacy lawyer also believes such a law would be ineffective, stating that if a suspect had information on his phone that implicated him in a serious crime, he would likely rather be convicted of a lesser offence of not disclosing his password.

Ultimately, says Fraser, it is not about broader police powers, it is about law enforcement developing more technological skills.

“The training for officers has not kept up,” he says.

Even a quarter century ago, this was an issue.

In Wise, the Supreme Court heard that the tracking beeper did not work well and police were searching a different car when they heard the communications tower fall and visually spotted the suspect driving away in his vehicle.

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 requests, 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 publication ban in R v. Mirachi, related to techniques used by the Royal Canadian Mounted Police in an organized crime prosecution. Its “covert intercept unit” utilized “IMSI catchers” (also known as Stingrays) in the investigation. The devices mimic cellphone towers to collect mass data, including 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 Blackberry 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 Canadian 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 associated data is illegal,” he stated. CSIS then stated it would no longer keep this type of data.